SAN FRANCISCO–There’s been a change in the world when it comes to sexual harassment in the workplace, and there’s no going back, according to one expert.
And credit unions and other organizations that don’t get onboard with those changes are likely to find themselves saying “MeToo” when it comes to litigation.
Steven Peltin, an attorney specializing in employment law with the Seattle firm Foster Pepper, spoke to the issue of “#MeToo and the Corner Office: The Credit Union CEO’s (Or Regulator’s) role in Preparing and Responding to Sexual Harassment Claims” during remarks at the NASCUS State Summit here.
While it wasn’t until 1986 when the Supreme Court ruled in the Meritor Savings Bank V. Vinson case that sexual harassment was ruled a violation of the Civil Rights Act of 1964, what has really changed employment protections, awareness and liability risk is the Harvey Weinstein case and the emergence of the #MeToo movement.
“We are in a new age,” said Peltin.
And with that new age must come a new understanding of how significant the issue is—especially at credit unions and organizations where senior management and board members remain largely male, he said. It means not just recognizing the issue, but understanding how complicated it can be, as well as having policies in place and responding in ways that don’t lead to more problems and litigation, noted Peltin.
The Data
First, Peltin ran his audience through a look at the data:
- 48% of employed women personally experienced unwelcome sexual advances or verbal or physical harassment at work
- 67% of Americans believe sexual harassment happens in most workplaces
- Eight in 10 women are now more likely to speak out
How do men view sexual harassment as a workplace issue?
- 62% of men said sexual harassment is widespread
- 41% of employed men personally witnessed mistreatment of women in workplace
- 44% of men who have heard recent stories about sexual harassment had changed their views on how women are treated in the workplace
Who are the groups most likely to be harassed? The assumption is women in lower-level positions were more at risk. But Peltin noted one study found:
- 35% of all women have been harassed
- 55% were senior level women
- 48% were lesbian
- 45% were in technical roles
- 30% were women of color
In all, 76% of those who have been sexually harassed did not report it out of fear of retaliation or belief that nothing would change. On the flip side, more than 70% of men believe sexual harassment reports are effective.
Board Are Lagging
In large part due to increasing awareness and the #MeToo movement, between 2016-18 there was an 18% increase in sexual harassment reports (not necessarily an increase in harassment). Yet despite that increase in awareness, corporate boards are “not keeping up,” according to Peltin. One study has found:
- 77% have not discussed accusations of sexually inappropriate behavior and/or sexism in the workplace
- 83% had no recent evaluation of risks regarding sexual harassment
Why are boards so far behind? Peltin said one 2017 survey found board members providing responses that included: it’s not a problem, we’re focusing on other issues, it’s not a board-level issue, we’re uncomfortable raising the issue in board meetings, and we’re mostly men.
The Fundamentals
Harassment is a form of discrimination under federal, state and local law. It’s defined legally as being unwelcome and offensive verbal, visual, or physical conduct based on a worker’s protected status (race, religion, origin, etc.)
There are two kinds of sexual harassment courts typically recognize, said Peltin: quid pro quo, and hostile work environment. The latter “is a phrase I hear every day, usually in the wrong context,” he said. “It’s unwelcome, offensive sexual behavior that is offensive to a reasonable person that is severe or pervasive.”
Credit union and other leaders need to realize sexual harassment does not need to be intentional or directed at a particular person, he explained, adding the definition is in the eye of the beholder and is held to a “reasonable person” standard.
Steve Peltin speaking to NASCUS meeting in San Francisco.
“Just because someone isn’t complaining doesn’t mean there isn’t harassment,” he added.
CEOs and regulators need to remember, too, that harassment claims and policies apply outside workplaces, even at conferences, he reminded his conference audience.
What to Do
So, what can a CEO or the leader do if they receive a report of harassment? The first thing, said Peltin, is to know what the policy is. Beyond that, executives need to be prepared to receive concerns/complaints, must make reported concerns a top priority, must maintain professionalism, and must understand confidentiality.
“What does confidentiality mean?” he asked. “What if an employee comes to you and says, ‘I need to talk to you about something, but I need to keep it between us.’”
What the CEO or leader must understand that what is being told to them is being told to the organization as a hole and must do something about it, Peltin said. The leader has a responsibility to investigate further, verify claims and find out if the problem is more widespread.
Peltin said the CEO should respond by saying that “to the extent possible” he/she will work to keep it in confidence, but they should explain they may need to disclose to others as part of the investigation.
Steps to Take
Peltin said in response leaders must also:
- Avoid jumping to conclusions or defending anyone’s position
- Must assure the employee that retaliation is prohibited
- Must immediately inform HR and legal counsel
- Must do nothing more unless advised to do so. “Do not conduct your own investigation or speak with the accused or witnesses,” he advised, reminding that the CEO may ultimately be the decision-maker and may also be deposed as part of a lawsuit.
Decisions to Make
A series of decisions must then be made by the organizational leader and his/her advisors, including:
- Deciding whether and what to investigate
- Selecting inside or outside investigator
- Maintaining privilege (limiting emails and conversations with non-lawyers, including the investigator)
- Determining messaging and publicity
- Determining when and how to advise the board (remember board discussions may not be privileged)
When Investigation Is Over
What should an organizational leader do once an investigation is over? According to Peltin, a decision needs to be made on whether a report is verbal or written and then who has access to that report. If the report finds the sexual harassment claim isn’t substantiated, then there must be careful communication with the accused, the accuser and witnesses.
“These should be carefully scripted; I like to see them in writing. They take a lot of care,” he said.
Any publicity must also be addressed, he added.
When Accusations Are Substantiated
What if the sexual harassment claims are substantiated? Post Harvey Weinstein, Peltin said many organizations believe there is almost no other decision than to terminate. Yet Peltin also noted he has spoken with a number of women who have said “they do not want the person to be fired,” and he posited that if it’s policy to fire anyone determined to have committed harassment it will reduce the number of women willing to come forward.
In all cases, an institution must promptly determine and implement management’s response, and if the organization is choosing to retain the person, then sanctions, training and coaching must be considered, he said. If the employee is terminated, an exit package must be discussed, and the organization must also decide how it plans to communicate with the victim, witnesses, the workforce and the community.
Additional Recommendations
Regardless of the outcome, Peltin recommended:
- Disclosure to the board
- A self-audit (which is privileged)
- Special attention to work group, including possibly bringing in outside experts.
Finally, Peltin recommended:
- Develop policies/procedures
- Create clear, accessible complaint/report process
- Communicate and enforce policies, procedures
- Train workforce from top to bottom
- Investigate complaints and concerns promptly and impartially
Peltin said organizations can also reduce the risk of harassment claims by:
- Increasing diversity of senior management according to gender and minority status, experience in institutions with successful HR practices, and in hiring and retention focus
- Setting the tone at the top by protecting the less powerful, insisting on equality and mutual respect, and requiring mentoring