Opinion

Opinion | Jonathan Brock, Billie Pirner Garde, and Marcia Narine Weldon

What exactly is zero tolerance on sexual harassment?

FordÕs Chicago Assembly Plant, where female employees say they have have endured persistent sexual harassment, Nov. 17, 2017. For the Ford women, even though they are members of one of the countryÕs most powerful unions, even though a federal agency and judge sided with them, and even after independent monitors policed the factory floors, the harassment has gone on for decades. (Alyssa Schukar/The New York Times)
Alyssa Schukar/New York Times/File
Ford’s Chicago assembly plant, where female employees say they have have endured persistent sexual harassment.

One encouraging organizational response to the recent spate of high-profile sexual harassment allegations has been the instant announcement of a zero-tolerance policy. But merely calling for zero tolerance or citing a lack of reported complaints as evidence of an already-effective policy doesn’t ensure a harassment-free workplace. Indeed, a lack of complaints often means exactly the opposite: that employees fear nothing will be accomplished except to expose themselves to retaliation.

The simple announcement of a zero-tolerance policy alone will not make previous fears disappear, nor nonfunctioning systems for complaints and protections roar to life, and the culture will not change. Anyone who complains after such an announcement is likely to be at the same risk as before — or worse, unless critical new steps are taken

A true zero-tolerance policy requires not only good intentions, but also a trustworthy, independent system, staffed with the proper skills to conduct swift, full, and fair investigations and to carry them to a just resolution, observing principles of confidentiality and discretion, and including ongoing protection of those who report. Only if the board and top-level officers back the process will investigators be able to provide the truth. Multiple channels are needed so that all concerned employees can find a comfortable and trusted avenue for reporting a problem.

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First, everyone must be confident that, if they report a problem, action will be taken, and they will be protected from retaliation and career damage. The best programs focus on prevention but are ready to respond swiftly when incidents arise. They go to lengths to ensure protection, including review of all proposed discipline to check if it might be payback for some prior complaint. These protections should extend to witnesses who take the risk of coming forward.

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Second, a trusted program must be established that has the power to protect and investigate, rectify career damage, and address personal injury or trauma. Proper investigations and resolutions require strict protocols, expertise, and full access to information, so that facts are found, conclusions are fair and accurate, rights and confidentiality of all are protected, and proper and proportionate accountability is assured.

Third, all managers and supervisors must know that they (a) are responsible for preventing harassment and for immediately placing any complaint into the proper channel for resolution, (b) must ensure employees do not suffer retaliation by peers, supervisors, or others, and (c) will be held accountable in their career opportunities and compensation if they fail to adhere to (a) and (b). Similarly, higher levels of leadership — senior executives and board (or in the case of legislatures, the bipartisan leadership) — must know that this accountability also extends to them. They are responsible for establishing and ensuring the effectiveness of the overall program along with a strong code of ethics as the standard.

Fourth, achieving a culture of zero tolerance means that measures, incentives, and informal norms do not tacitly condone inappropriate behavior. Bad behavior must not get a wink and a pass. Such cultural features create an undertow that the best anti-harassment training and policy cannot overcome.

Instead, specific policies should direct bonuses, raises, and other incentives and opportunities to those who, in addition to meeting business targets, actively prevent and respond appropriately to harassment, retaliation, and other compliance problems. Clawbacks should be considered if unsupportive behavior later comes to light. Injurious behavior must be called out and exemplary behaviors credited: Without naming names, statements to the workforce can inform employees that actions have been taken against perpetrators, or that behavior in support of zero tolerance has been rewarded. What gets measured gets treasured.

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Fifth, periodic assessments are needed to determine accurately whether employees believe they can come forward without fear, and to learn if unreported sexual misconduct or other noncompliance is occurring. As recent events have proved, lack of reported incidents does not mean there is no harassment; and intimidation can pervade a workplace below the surface despite a stated zero-tolerance policy. Such assessments almost always require an independent outside entity confidentially administering anonymous surveys and interviews. The best of these use benchmarked and validated questions that can provide insight into the effectiveness of the compliance program and whether employees trust the system.

Finally, in those workplaces in which employees have formed a union, it is critical that they be involved in the development, implementation, and assessment of the policy. They hear things and know things that management will probably not otherwise be able to learn, or may be likely to overlook.

Let us not forget that highly visible sectors such as the media, entertainment, and the political realm are only part of the workplace landscape. Employees in smaller, less-visible, or less easily policed sectors — such as restaurants, farms, retail outlets, laboratories, and warehouses — may have the most to worry about. Their employers may lack the resources or incentives to motivate the needed changes. If so, protections must come through the regulatory presence of state, local, or federal agencies, or from public-interest advocates, none of which will have sufficient reach or resources for the task.

Calling for zero tolerance is a good start, but is only the beginning of the journey to real protections and cultural change. Achieving zero tolerance requires sustained and focused leadership on the programs, systems, skills, and backing for reporting, investigation, and accountability. In the absence of this ongoing investment by business and political leaders, we may simply be witnessing a wave of celebrity firings and embarrassing political resignations, with no lasting change away from the glare of floodlights. A zero-tolerance promise without an underlying system to redeem that promise is an invitation for nothing to happen, or worse.

The authors are former members of the US Department of Labor’s Whistleblower Protection Advisory Committee, a bipartisan, labor-management group, which unanimously developed a “best practices” template for anti-retaliation programs.