Category Archives: harassment

An End to Harassment Arbitration?

Does the “Ending Forced Arbitration of Sexual Harassment Act of 2017have a better chance of becoming law than past attempts to restrict arbitration agreements? Especially given the timing, some believe the answer is an unequivocal yes.

Rep. Cheri Bustos (center) announces a bipartisan bill last week.

As you may have heard, Rep. Cheri Bustos (D-Ill.) and Sen. Kirsten Gillibrand (D-N.Y.) introduced bipartisan legislation last Wednesday aimed at voiding forced arbitration agreements and enabling “survivors of sexual harassment or discrimination to seek justice.” Senate co-sponsors include Lindsey Graham (R-S.C.), Lisa Murkowski (R-Ark.), Kamala Harris (D-Calif.). House co-sponsors include Walter Jones (R-N.C.), Elise Stefanik (R-N.Y.), and Pramila Jayapal (D-Wash.)

In announcing the bill, Bustos said …

“If we truly want to end sexual harassment in the workplace, we need to eliminate the institutionalized protections that have allowed this unacceptable behavior to continue for too long. Whether it’s on factory floors, in office buildings or retail businesses, 60 million Americans have signed away their right to seek real justice and most don’t realize it until they try to get help. Our legislation is very straightforward and simple—if you have been subjected to sexual harassment or discrimination in the workplace, we think you—not the employer—should have the right to choose to go to court. While there are a lot of good companies that take sexual harassment seriously and work to prevent it, this legislation will help root out bad actors by preventing them from sweeping this problem under the rug.”

“No worker should have to put up with such an unfair system,” said Gillibrand.

On hand for the announcement was former Fox News’ host Gretchen Carlson, who sued her former employer and its then CEO Roger Ailes over harassment. (Ailes passed away in May.)

Carlson, who received a $20 million settlement in the case, described forced arbitration as a harasser’s best friend. “It keeps harassment complaints and settlements secret. It allows harassers to stay in their jobs, even as victims are pushed out or fired. It silences other victims who may have stepped forward if they’d known. It’s time we as a nation—together—in bipartisan fashion give a voice back to victims.”

Lawrence Lorber, senior counsel with Seyfarth Shaw in Washington, predicts that the bill, as its currently worded, will likely meet some opposition. Its chances, he adds, would be greatly improved were the wording more targeted to sexual assault and harassment.

“I think the language of the bill goes further than what they intended,” Lorber says. ”What it does is not only preclude arbitration from being applied to sexual-harassment matters, but [from] all contracts of employment.”

Lorber points out that there already exists a model for addressing the legislation’s shortcomings. Ironically, he says, it’s The Franken Amendment, which was part of the Defense Appropriations Act and prevents defense contractors from requiring arbitration in instances arising out of sexual assault and harassment. (Sen. Al Franken, D-Minn., who sponsored the amendment, announced last week he would soon be giving up his Senate seat as a result of accusations of sexual misconduct.)

Thanks to The Franken Amendment, Lorber says, there’s already a law that exists for addressing this issue, though “for a much more limited universe.”

Lorber says he wouldn’t be surprised to see a bill addressing this issue become law as soon as early next year.

Keeping a Distance Between Genders

If you believe the findings of a recent survey, conference rooms at the average company look like the gym at a typical middle school dance: boys on one side and girls on the other.

All jokes aside though, the results of a new poll conducted for the New York Times paint a picture of modern workplace dynamics that should be a bit unsettling.

For example, the survey of 5,282 adults asked respondents whether it was proper to take part in a variety of activities—enjoying a drink or a meal, driving in a car—alone with someone of the opposite sex who was not their spouse.

With respect to the workplace, 25 percent of women said having a one-on-one work meeting with a man would be inappropriate. Twenty-two percent of men said the same about private meetings with female colleagues. Overall, close to two-thirds of respondents said employees “should take extra caution around members of the opposite sex at work,” according to the Times.

In interviews conducted with survey respondents, some depicted the workplace as a “fraught atmosphere in which they feared harassment, or being accused of it,” the Times reports.

At first blush, it might be startling to think that roughly one quarter of employees feel this way. But consider recent developments at companies such as Uber and Fox News, for example. One can certainly hope that organizations like these are outliers; exceptions rather than the rule. But the headlines are inescapable, and the specter of sexual harassment looms a bit larger than usual at the moment. And some employees are apparently nervous about how their private interactions with colleagues of the opposite sex—however harmless they might be—could be perceived.

Count construction worker Christopher Mauldin among the apprehensive.

“When a man and woman are left alone, outside parties can insinuate about what’s really going on,” Mauldin told the Times. “Sometimes false accusations create irreversible damages to reputations.”

Without a doubt, those on the wrong end of unfounded harassment allegations can pay a steep price. As do victims of actual sexual harassment.

Just ask Kathleen Raven, a science writer in the office of communications at Yale School of Medicine.

While telling the Times that she “considers herself to be progressive in many ways,” Raven says she no longer conducts closed-door or offsite meetings alone with men, because she has been sexually harassed in the past. Raven also says that she “tries to avoid being too friendly, to ensure she doesn’t give the wrong impression.”

Hannah Stackawitz, on the other hand, can’t imagine a professional life that doesn’t include taking solo meetings with men.

“I do it every day, honestly,” the Langhorne, Pa.-based healthcare consultant told the paper, adding that her husband has frequent one-on-one meetings with women as part of his job.

Employers and HR have a duty to ensure that male and female colleagues feel this comfortable working with each other.

However, not a lot of companies have been able to do so, according to Kim Elsesser, author of Sex and the Office: Women, Men and the Sex Partition That’s Dividing the Workplace.

“Organizations are so concerned with their legal liabilities, but nobody’s really focused on how to reduce harassment and at the same time teach men and women to have working relationships with the opposite sex,” Elsesser told the Times.

This recent New York Times poll suggests that the problem Elsesser describes is a very real one. Stackawitz makes a very simple case for why fixing it is important.

“There’s no way that women or men can become their full and best selves,” she said in the Times piece, “by closing themselves off.”

How Does Bullying Affect Bystanders?

In case you needed further evidence of workplace bullying’s toxic and far-reaching effects …

In a new study, a University of North Texas professor finds that an office bully’s boorishness not only distresses the employee on the receiving end of such behavior, but is harmful to those who witness it as well.

Michele Medina, an adjunct professor in the department of management at UNT’s College of Business, studied how exposure to an in-office bully influences interpersonal attitudes, including employees’ expectations for how colleagues should treat one another. Medina also analyzed how individuals react internally to seeing a co-worker targeted by an office tormenter, and how witnesses’ empathy affects these factors.

“When people react to events emotionally, it has a direct influence on their attitude or how they behave,” says Medina, in a UNT statement. “And that can spill over into work.”

For the study, Medina enlisted 300 participants to serve as bystanders to office bullying. These observers watched a faux employee training video that showed either an actor berating a co-worker or a benign exchange between colleagues.

Their reactions “say a lot,” notes Medina.

For example, witnesses who observed peer-on-peer bullying report believing that they might become a target for bad treatment at work. Study participants also said they would often be inclined to disassociate from the bully, while those with higher levels of empathy would be more likely to relate to co-workers who had been bullied. In addition, witnesses of the same gender as victims of bullying behavior said they are less likely to identify with the perpetrator.

These conclusions do say a lot. And little of it bodes well for workplaces where bullies are present—and going unchecked.

“There’s a price to pay,” says Medina. “Kids who are bullies tend to grow up to be adults who are bullies. It doesn’t necessarily go away. Understanding how bullying affects everyone at work, and which employees are most likely to be affected, allows companies and organizations to address all aspects of workplace bullying properly.”

‘HR May Not Be Looking Out For You’

“Is human resources really the right place to go?”

That’s the rhetorical question Gretchen Carlson asked an audience last night while talking about the topic of sexual harassment in the workplace, according to a report on Fortune‘s website.

Carlson — the former Fox News host who sued her network’s chairman, Roger Ailes, for sexual harassment last July — was addressing the 2017 class of the Fortune/U.S. State Department Global Women’s Mentoring Partnership,  when she made her HR-averse remarks.

After posing the rhetorical question, Carlson  continued: “Because what I always equate it to is: Who’s giving them the paycheck?”

From the Fortune post:

“In the end,” Carlson pointed out, “if the culture’s being set from the top and it’s trickling down to the lower levels, human resources may not be looking out for you.”

Carlson’s hot take on HR may have something to do with her upcoming book, which Fortune quoted Carlson as saying contains “some new ways in which we might look” at sexual harassment, including different kinds of reporting mechanisms. The book, called Be Fierce, was inspired by the “thousands” of women who reached out to her in the wake of her suit, sharing their own stories of harassment and other abuse.

Personally speaking, I have no idea how well her book will sell, but I can well imagine a fierce — and negative — response by HR leaders at Carlson’s remarks last night.

Another Casualty at Fox News

Board members at 21st Century Fox this week took dramatic steps to end what was shaping up to be an epic HR train wreck at the media giant.

On Tuesday they dismissed Bill O’Reilly, popular host of “The O’Reilly Factor,” the  top-rated show on its top-rated cable outlet, the Fox News Channel. News stories recently have detailed sexual-harassment complaints that have piled up against O’Reilly, costing the network at least $13 million in settlements so far and more in than 50 advertisers as the unflattering headlines tarnished the Fox News brand. It was the latest chapter in a story that began with the ouster of Fox News CEO Roger Ailes last summer over similar allegations of rampant sexual harassment problems at Fox News.

The New York Times, which started the latest chain of events on April 1 by publishing the first accounts of sexual-harassment complaints against O’Reilly, said the decision to fire him was made by Rupert Murdoch and his two sons, who hold controlling interests in 21st Century Fox after an internal investigation found that several women had reported inappropriate conduct by O’Reilly. Murdoch, executive co-chairman of the 21st Century Fox board, also has been acting CEO of the Fox News unit since Ailes was fired in July 2016.

The decision came in a terse announcement: “After a thorough and careful review of the allegations, the Company and Bill O’Reilly have agreed that Bill O’Reilly will not be returning to the Fox News Channel.” The deal included severance payments of up to $25 million, several news organizations reported.

O’Reilly, who was in Italy on vacation when the news of his dismissal broke, expressed disappointment in a series of short statements that alluded to his longstanding contempt for “political correctness.”

“Over the past 20 years at Fox News, I have been extremely proud to launch and lead one of the most successful news programs in history, which has consistently informed and entertained millions of Americans and significantly contributed to building Fox into the dominant news network in television,” O’Reilly said in one statement published by Entertainment Weekly late on Tuesday. “It is tremendously disheartening that we part ways due to completely unfounded claims. But that is the unfortunate reality many of us in the public eye must live with today. I will always look back on my time at Fox with great pride in the unprecedented success we achieved and with my deepest gratitude to all my dedicated viewers. I wish only the best for Fox News Channel.”

 

Another Strange Turn at Fox News

The news hasn’t been kind to Fox News lately.

As a messy sexual harassment scandal began unfurling last year, the television network and its corporate parent, 21st Century Fox, were battered with unflattering headlines. Besieged with employee  suits alleging a systemic culture of sexual harassment and retaliation, the company had to spend $20 million last fall to settle claims from former star anchor Gretchen Carlson. Months earlier, Fox also had spent $40 million in a deal to dismiss network CEO Roger Ailes. Other sex-harassment cases against the company remain pending. But new ones keep coming.  Most recently, the storm returned after The New York Times on April 1 reported that sex-harassment claims were piling up against Bill O’Reilly, host of the news channel’s most popular show. The network has paid five women a total of $13million to settle their claims, the Times reorted.

Once again, Fox’s image took a beating.  So did revenue: This time, advertisers left the channel to preserve their own reputations. As a high-profile law firm conducted an investigation on behalf of management, some news outlets reported O’Reilly could be ousted.

We can only imagine how challenging life is today in the Fox HR department.

We may not have to wonder. If one news report is true, HR leaders at 21st Century Fox took a bold step to change the company culture: they launched a training program that features a video that Americans have come to know well: The infamous “Access Hollywood”outtakes featuring host Billy Bush exchanging salacious banter with now-President Donald Trump.

The newspaper reported  that Fox has shown the tape as a regular part of employee seminars warning against sexual harassment.

Hollywood Reporter said employee reaction has at times been incredulous: “There was an audible gasp in the room, like, ‘Can you believe this is happening?’”one tipster told the newspaper.

Lessons from the Sterling Scandal

With the salacious details of the Sterling Jewelers pay-discrimination lawsuit still sickeningly fresh in our minds, many of us have been asking how such behavior — as alleged by some of the 69,000 former employees involved in the suit– could happen at such a large company.

From security guards with overactive wands to district managers with overheated libidos, the sexual-misconduct accusations truly run the gamut of the perverse, according to court filings.

“But don’t they have programs in place to prevent this sort of behavior?” we wonder.

For its part, the company has denied any wrongdoing. On the matter of pay and promotion discrimination, the accusations are “not substantiated by the facts,” Signet Jewelers Limited, the parent of Sterling, said in a statement. In addition, Sterling said it found the claims of sexual misconduct to be without merit.

But today’s New York Times takes a look at some of the programs that may have unwittingly contributed to the harassing behavior being alleged by the suit plaintiffs:

…[L]awyers and academics who specialize in gender discrimination say the documents — more than 1,300 pages in total — provide a rare insight into how a company’s policies work in real life. Whether it is a not-so-confidential tip line or an in-house court, they say, some widely used corporate procedures can mask problems that women often face in the workplace. Here is a look at what the documents revealed.

The Times article looks at three employee-centric programs in particular: the company’s employee hotline, its arbitration policy and its “tap on the shoulder” promotion policy.

The entire article is well worth a read, if only to remind HR leaders that, just because you have a program in place to remedy a problem, that doesn’t mean it’s necessarily working. In fact, it could actually be covering up more issues than it is resolving, as Sterling is now learning the hard way.

 

 

 

 

 

Critical Uber Blogger Lawyers Up

Things just keep getting worse for Uber.

Various media outlets are reporting Susan Fowler, who wrote a scathing blog post about her alleged experiences with sexual harassment and stonewalling from Uber’s HR department — has lawyered up.

Susan Fowler, a former Uber engineer whose Feb. 19 essay detailed myriad examples of sexism, tweeted Thursday that “Uber names/blames me for account deletes, and has a different law firm – not Holders (sic) – investigating me.”

Fowler also said in her tweet that she has retained the employment law firm of Baker Curtis & Schwartz.

According to USA Today, on Feb. 24, Fowler tweeted that “research on the smear campaign has begun,” and she urged her friends not to provide personal information should they be contacted. She then added that she didn’t know “who is doing this or why.” At the time, Uber denied any knowledge of a smear campaign, and called such behavior “wrong.”

CEO Travis Kalanick and other execs then held long meetings with upset employees, and faced criticism from investors who blasted the company’s “toxic” environment and urged wholesale changes lest the company lose its way.

Kalanick addressed the issue directly in an emotional meeting with 100 female engineers.

“I want to root out the injustice. I want to get at the people who are making this place a bad place,” Kalanick said.

“I understand this is bigger than the Susan situation,” he said, adding that the topic was “a little bit emotional for me.”

Given the pervasive nature of Silicon Valley’s sexual-harassment problem, it’s not hard to imagine that almost every one of those 100 female engineers has a story similar to Fowler’s.

 

Uber’s Toxic Workplace Culture

A company director shouting a homophobic slur at a subordinate during a meeting. A manager groping female co-workers’ breasts during a company retreat. A manager threatening to beat an underperforming employee’s head in with a baseball bat. All of these incidents — and more — are described in a fascinating front-page story on Uber’s workplace culture by New York Times reporter Mike Isaac, who based his story on interviews with 30 current and former employees of the ride-hailing service and reviews of internal emails, chat logs and tape-recorded meetings.

As you’ve probably heard, Uber found itself thrust into the spotlight after former employee Susan Fowler published a blog post last Sunday about her experiences working for the company. Fowler, an engineer, said she and other women were sexually harassed and discriminated against by her manager and little to nothing was done about it, even when she reported it to HR, because the manager was a “high performer.” (Fowler’s descriptions of her interactions with Uber’s HR department are particularly damning: For example, when she noted to an HR representative how few women were in her engineering department, the rep allegedly told her that she shouldn’t be surprised by the ratio of women in engineering because people of certain genders and ethnic backgrounds were better suited for some jobs than others.)

Fowler and other current and former Uber employees told Isaac that HR would excuse poor behavior by their bosses because the managers in question were top performers who benefited the health of the company. The company’s culture — set by Uber CEO and co-founder Travis Kalanick — emphasizes getting ahead at all costs, the sources told Isaac, even if it means undermining co-workers and supervisors. One group in particular that was shielded from accountability was “the A-Team,” the sources said, a group of executives close to Kalanick.

Since Fowler went public with her accusations, Kalanick has brought in former Attorney General Eric Holder and board member Arianna Huffington to conduct an independent investigation of the issues Fowler raised. He said the company would release a full diversity report shortly and that 15.1 percent of the engineering, product management and scientist roles at Uber were held by women and that that number “has not changed substantively in the last year.”

In a statement to the Times, Uber CHRO Liane Hornsey said “We are totally committed to healing wounds of the past and building a better workplace culture for everyone.”

Hornsey, who joined Uber in January (its former HR chief, Rene Atwood, left in July to join Twitter) and who will assist with the investigation, spent nine years as Google’s vice president of global people operations. Hopefully she’ll be able to put her experience and expertise to good use at a company that appears to sorely need it.

Uber’s Sex-Harassment Inquiry

In case you missed it over the long holiday weekend, there’s plenty of trouble brewing over at ride-share app Uber.

It’s now so serious that the company hired former U.S. Attorney General Eric Holder to investigate whether the company has appropriately addressed discrimination and harassment claims made by female workers.

The investigation comes after former Uber engineer Susan Fowler Rigetti posted her story on Sunday, detailing her experiences enduring sex harassment at the hands of her direct manager, as well as the stonewalling she says she was subjected to by the company’s HR and leadership after she repeatedly brought the claims to their attention.

According to Fowler Rigetti:

On my first official day rotating on the team, my new manager sent me a string of messages over company chat. He was in an open relationship, he said, and his girlfriend was having an easy time finding new partners but he wasn’t. He was trying to stay out of trouble at work, he said, but he couldn’t help getting in trouble, because he was looking for women to have sex with.

It was clear that he was trying to get me to have sex with him, and it was so clearly out of line that I immediately took screenshots of these chat messages and reported him to HR.

Uber was a pretty good-sized company at that time, and I had pretty standard expectations of how they would handle situations like this. I expected that I would report him to HR, they would handle the situation appropriately, and then life would go on – unfortunately, things played out quite a bit differently.

After receiving less-than-enthusiastic support from HR, she describes how she came to know other women at Uber who had experienced the same harassment and subsequent stonewalling, and how those women decided to use a strength-in-numbers approach to alert HR to the seriousness of the ongoing issue:

Myself and a few of the women who had reported him in the past decided to all schedule meetings with HR to insist that something be done. In my meeting, the rep I spoke with told me that he had never been reported before, he had only ever committed one offense (in his chats with me), and that none of the other women who they met with had anything bad to say about him, so no further action could or would be taken. It was such a blatant lie that there was really nothing I could do. There was nothing any of us could do. We all gave up on Uber HR and our managers after that. Eventually he “left” the company. I don’t know what he did that finally convinced them to fire him.

After the story initially broke, Uber CEO Travis Kalanick tweeted that the behavior mentioned in the post was “abhorrent & against everything we believe in. Anyone who behaves this way or thinks this is OK will be fired.”

Hiring someone like Eric Holder will definitely add credence to an investigation that had previously looked paper-thin. And while only time will tell if Holder uncovers any more stories like Fowler’s, I get the feeling this sordid story isn’t over by a long shot.