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  • Pulled apart – how HR actually deals with sexual harassment

    Friday, 19 April 2019

    “We had a head researcher who told one of our in-house lawyers that if you stood in a certain spot under the glass stairs, you could look up women’s dresses,” says Alice*, an Australian HR professional about an organisation where she used to work.

    Since 2017, when The New York Times and The New Yorker ran stories alleging Harvey Weinstein had a long history of workplace sexual harassment, readers of an article beginning like this one have expected a certain tale. They will read about more scandalous behaviour by the perpetrator before finding out he faced no repercussions because his company, and HR in particular, did their best to ignore or cover up his behaviour.

    The impact of such articles is immense. They were the catalyst for the #metoo movement, which has given a voice to long-silenced victims, and they are the fuel for ongoing political, legal and social changes. They have indirectly led to the Australian Human Rights Commission’s (AHRC) National Inquiry into Sexual Harassment in Australian Workplaces.

    However, this article speaks to another side of the story. HRM asked HR professionals about their most complex cases. It’s impossible to represent all their experiences, but the interviews chosen are a best attempt. While some are about the failure of organisations to appropriately handle serious allegations, others are about the opposite. Everyone gave accounts of behind-the-scenes conflicts that complainants, and the public, rarely hear.

    Alice’s story of the researcher is a good example. It began with two separate reports. The first was from a disturbed employee who had seen the researcher standing under the stairs, looking up women’s skirts, and the second was from the lawyer who had been advised where to stand in order to get the same view.

    Alice called for a formal investigation and got the green light from her manager (the only other female to be involved in the case), only to hit a roadblock with the HR director/general counsel, who had no previous HR experience. He wasn’t able to provide the support she needed for such a complex situation.

    Only after weeks of following up did Alice find out what leadership had decided. “[The HRD] took it to the CEO who said, ‘We’re not going to act on it. This guy is a rockstar researcher and if he was to leave the organisation, or if we did anything to upset him, we would potentially lose some funding and all of his team.’

    Appalled at this reaction, and a culture that she felt powerless to change, Alice left the organisation soon after.

    Need for anonymity

    Everyone HRM spoke to asked that we anonymise their experiences. A few, like Alice, wanted the same done for their identity. Each had their own reasons. For example, Alice’s contract is due for renewal this month.

    “If you’re known to be blabbing about confidential matters, then people might be less inclined to take you on,” she says.

    Frequently responsible for recruitment, HR professionals know which public information will most damage your chances of being hired.

    HR consultant Catherine Cahill says it’s not uncommon to do a quick check to see if a candidate has repeatedly gone to the Fair Work Ombudsman. “I guess we all have this sense that maybe some people will cause trouble. I feel terrible saying that, but when you’re in HR you have a foot in both camps, don’t you? This is one of the on-going challenges we face as HR professionals.”

     Another interviewee, Sarah*, agreed. She says not everybody views outspoken advocates of employees’ rights positively, “and in a small city or small industry reputation can mean a lot”.

    Confidentiality agreements also make openness difficult. HR is often legally prohibited from speaking about specific complaints – this is common of those that are effectively resolved, says Cahill.

    But the main reason the media doesn’t cover stories of appropriately managed complaints is that an unpunished perpetrator is inherently more newsworthy. Unfortunately, this makes it too easy for the public to believe that inaction is the only outcome.

    The results of the AHRC’s 2018 survey into workplace sexual harassment revealed that, of people who’d experienced it, only 17 per cent made a formal report or complaint. Of those who didn’t, 38 per cent said they felt nothing would change or be done.

    It also found that 19 per cent of complaints ended with no consequences for the perpetrator. This is higher than the reported prevalence of false sexual harassment accusations. Different studies put the figure at between 2 and 10 per cent (only one person told HRM they’d encountered what they felt was a false accusation). But while it means there’s work to be done, the figures also show that a large majority of complaints result in some action.

    Source: AHRC 2018 report into sexual harassment.

    Positive outcome

    For Denise Morris, one instance of sexual harassment sticks in her mind. It happened at a company she used to work for, and took place in a remote workplace away from the main offices. And the victim was initially reluctant to make a complaint.

    A witness told Morris what happened. At an afterwork social gathering, the local acting manager walked past a female employee (below him in seniority) and grabbed her breast. “She was so shocked, she didn’t react,” says Morris. “Then he walked past again and did it again. Everyone saw what happened, but they were all too shocked and uncomfortable to do anything.”

    After verifying the complaint, Morris received the support of her HR director to commence an investigation. However, it took more than four phone calls with the affected individual to build up her confidence to the point where she would support an investigation.

    “The main reason the media doesn’t cover stories of appropriately managed complaints is that an unpunished perpetrator is inherently more newsworthy.”

    Asked why she felt the need to go to such lengths, Morris says, “I felt it was important for her. It would be something she was always going to have to deal with, while witnesses will forget things over time. And the offender will think they’ve done nothing wrong and possibly do worse to somebody else.”

    The man was stood down with pay while the investigation took place. Witnesses were called and a detailed report was made. A managing director was flown to be in the room with the alleged perpetrator while Morris conducted the interview over the phone.

    The man initially declined to have a support person, but after 20 minutes, where he did not comment on the allegations, he asked for a delay so he could get one. The interview continued later that day with the man’s lawyer present.

    “As we were going through the allegations, the MD asked to see his phone, because one of the allegations was about things that were on it, and it looked like he had cleaned his whole phone.”

    Having finished, Morris and the MD conferred with the legal team and HR director on the right course of action. “We could only come to the conclusion that everything that was put to him had actually happened, because he didn’t deny it.”

    The man was dismissed on the spot and supervised as he left the premises. But since this was a small town, every staff member would run into him again. “There was also a huge sense of guilt [from the complainant].

    "She felt she had caused him to lose his job, so there was still additional coaching that we needed to provide to that team.”

    Employee assistance program support was offered to all staff and additional support was given to the woman. Morris herself went to the location and conducted training that was well received.  Having gone through the process, they understood the importance of reporting and their power to effect change by taking action, says Morris.

    Everyone involved, even the lawyer who acted as a support person to the dismissed individual, commended Morris on a well-managed investigation. Her name came up in the context of someone who will deal with a complaint with sensitivity. 

    She is, however, keen to point out she was only the facilitator. The outcome could only be achieved by everyone showing courage, not just the woman herself, but also the witnesses and senior management team. Morris says some staff don’t report their harassment because they feel like they’ll lose control. For liability reasons, sometimes an organisation wants a full investigation when the victim would prefer to just have support.

    “Being managed out of a job for making the ethical decision to confront a senior employee’s predatory behaviour is not a paranoid fantasy for HR. It happens.”

    Aftershock

    Sarah* managed a case in which an employee experienced a delayed traumatic response and panic attacks months after the harasser had left the organisation (for reasons unrelated to the complaint). The incident happened at an out-of-hours function and Sarah describes it as “more assault than harassment”.

    The organisation was sitting on a mound of disciplinary issues at the time, and this may have influenced the way leadership responded. “They were pushing that we should be doing something, we should be forcing her to go to the police or do something,” says Sarah. “There’s a perception that if something is done about a claim, like if somebody gets punished, then the victim will feel better.

    “She was starting to have a lot of anxiety in the workplace and was struggling to come to work and to focus on doing her job. The issue I came up against was that the culture of the organisation was very risk-averse. They were coming at it from the point of view of protecting the organisation.”

    Sarah and her direct manager butted heads over her approach. “I often had strongly worded debates with my boss about whose side we’re on in HR. He was very much like, ‘Our job is to protect the organisation.’ And I was coming more from the, ‘Our job is to help the staff do their job.’”

    This debate raises the question of what ‘protecting the organisation’ actually means.

    Different stakeholders in an organisation – leadership, employees, customers, shareholders, etc. – have different opinions, and there is rarely a simple answer. Afterall, staff wellbeing is a compliance issue too. Unfortunately the correct course of action is usually unknown until after the impacts of the chosen course are felt.

    Sarah remembers her manager told her not to speak with the woman without a lawyer present, but the woman was already on her way in from a different office.

    “She was in tears when she came in. I wasn’t going to turn her away. My first approach with any kind of grievance is to take my HR hat off and say, ‘While you’re getting issues off your chest, I’m going to listen as if we’re just two human beings, not an employee and an HR person.’”

    Sarah’s boss saw her speaking with the woman and gave “a dirty look” through the office blinds. Afterwards, he asked why she’d ignored his order. She explained the importance of victim-led reporting, of putting wellbeing first, and her “human-to-human” approach, and only then did he understand. He explained that it wouldn’t have been how he approached the situation.

    “I was in a position where I had a job to return to, as I was on secondment, which made me less worried. If I’d been facing the prospect of unemployment, would I have still done it? I’d like to think so, but it would have been a lot harder.”

    With help from Sarah, the woman was able to return to the job she loved.

    Backlash

    There are many harassment cases where HR is at fault for an inappropriate response. Though it’s hard to imagine people willing to come forward to explain why, we can assume various causes: a lack of expertise, indifference, ineptness, or even a close relationship with the perpetrator.

    But one of the most cited reasons is fear of a backlash. Being managed out of a job for making the ethical decision to confront a senior employee’s predatory behaviour is not a paranoid fantasy for HR. It happens.

    Cahill worked at a professional services firm in a standalone HR manager role. As with Morris, Cahill initially heard about the sexual harassment complaint from a witness and found the eventual complainant reluctant to talk.

    “She was terrified of what it would mean. I said, ‘I will do everything I can to look after you, but if you don’t tell me what’s going on, I can’t help you.’ She told me, and he was literally inviting her into his office and then cornering her and touching her up.”

    The partner also spoke to and touched her inappropriately in more public spaces. The woman’s reaction to his advances was to try to be polite and not upset a man with more authority than her.

    The competition for graduate positions at well-regarded firms is immense, and in this case the expectation was that you would stay for at least two years. If the woman left after six months, she thought other firms would want to know why, or would reject her on the grounds that she ‘couldn’t cut it’. So she felt she had to either put up with the partner’s behaviour for 18 months or lose her career.

    A lot of the firm’s events were organised around drinking, and it didn’t just lack women in leadership – there were fewer women in general. And while the partner’s behaviour was worse than most, it was on a spectrum that encompassed many others.

    “There were always lots of overtly sexual conversations around from everybody. The partners more so than anyone else,” says Cahill.

    Some male colleagues tried to run interference when the partner would harass the complainant, but “there were so many people around who saw it going on… It appeared [to the complainant] like everybody could see what was going on and they didn’t think it was a problem.”

    The person who initially alerted Cahill expressed sincere concerns. “She’d lost a lot of weight, she was becoming withdrawn and they were worried about her psychological health.”

    Cahill’s response was to tell the managing partner. It turned out he was already aware, even if he didn’t know how much it was hurting the graduate. Cahill told him that a formal investigation would likely be ineffective and cause greater harm to the woman. Given the partner’s disposition, and the fact that he was an experienced litigator, Cahill predicted he would treat any investigation like he would a court case.

    The managing partner promised to talk to the graduate and secure her a position at another firm. He would also pay for counselling and asked Cahill to think about compensation. The managing partner then talked to the partner about the decision.

    Once this happened, Cahill’s prediction came partly true. The partner began to menace Cahill.

    “He was beyond irritated that the managing partner and I had come to this agreement to look after this woman, and he felt that he hadn’t had his day in court, so to speak. Whereas, if he’d had his day in court, he would have just torn strips off this poor woman, and everyone else around her.”

    The partner began finding fault with Cahill’s performance in unrelated areas and enlisted the help of the firm’s general manager in this effort. The managing partner who helped the graduate did not step in. After six months, the partner was successful and Cahill lost her job.

     “It was horrid, and I left wondering if I ever really wanted to work in HR again.”

    The lesson for Cahill was that by taking a direct off-the-record approach, she had left herself exposed.

    “If you’re going to take on a senior person in an organisation, then you absolutely have to have the support and effective sponsorship of an even more senior person – and it has to be on the record.

    “I knew I’d done the right thing, I’m proud that I was able to help this young woman, because she did get another role, and she kept in contact for a number of years. I never regretted for a moment that I helped her. I just felt that I’d paid a very high price for doing it.”

    Finding fixes

    There are many ways individual organisations can better manage sexual harassment complaints – bystander training, an anonymous complaints system and so on – but on a broader level, what needs to change to help HR better manage sexual harassment in workplaces?

    Morris talked about how she has since learned to approach the subject in a positive manner; she likens it to the way we speak about ‘diversity’ rather than anti-racism. She reframes conversations about harassment by focusing on the language of respect and training people in what a respectful relationship looks like.

    Another suggestion is legislative changes that would make it easier for HR to make the right choice. For example, more protections for those who resist their employer’s demands to behave unethically. “If Fair Work is willing to fine us $80,000 for being coerced into giving someone a sham contract, then they should also be willing to compensate us for walking out the door for refusing to do it,” says Cahill.

    Sarah believes awareness and experience is part of the equation. “I think people’s empathy comes down to their own experiences. If people haven’t dealt with it themselves, or to someone close to them, they don’t really understand what it’s like to go through something like that.”

    Alice suggests sexual harassment complaints should be part of an organisation’s annual reporting process. “That would be a great way to hold people accountable. If you were looking for a job, you could see that this place has had 20 sexual harassment claims made and only five of them have had action taken.”

    More than one interviewee compared HR to accounting, noting that there is credibility attached to the second profession that is missing from the first.

    “I’ve never worked with a business that’s willing to flout [tax] laws,” says Cahill. “If their accountant says, ‘You can’t do it’, they don’t do it. Employment law people seem to think it’s a bit rubbery, that it’s a bit optional.”

    Morris makes the same point. “Companies don’t seem to think HR is under the same type of legislation,” she says. “Given the responsibility that accountants have, everyone accepts that they are bound by a code of ethics to maintain their chartered or certified status. I think HR needs to go the same way.”

    “If Fair Work is willing to fine us $80,000 for being coerced into giving someone a sham contract, then they should also be willing to compensate us for walking out the door for refusing to do it.”

    Further dilemmas

    Without anyone specifically pushing it, conflicting expectations have been placed on HR professionals. In particular, union decline frequently positions them as the sole employee representatives in their organisation. This seems to be the root of most public disappointment in the profession. In a 2018 Sydney Morning Herald opinion column, academic Jeanna Price articulated a common anger when she wrote, “HR people are not there to help you, they are there to protect the company.”

    In fact most people aren’t reporting to HR; the AHRC survey found that they do in only 24 per cent of sexual harassment complaints. Fifty-five per cent are made to direct managers and supervisors and 36 per cent to CEOs, employers and bosses (respondents could choose multiple answers).

    As for protecting the company, it could be argued that would mean thoroughly investigating every complaint. Because not doing so risks financial liability, staff anger and – especially in this era – severe reputational damage. What’s more, by making practitioners personally liable for certain organisational breaches of workplace legislation, the law insists they act as de facto corporate police.

    But as the people HRM spoke to prove, there are far too many variables for there to be a single correct response. The HR practitioners hearing about workplace sexual harassment have to weigh up the employee’s suffering and wishes, their organisation’s needs, the likely response of the executive team, and their own livelihoods. This last point shouldn’t be dismissed as venal. If your income is crucial to your household and you know that taking a righteous stand against horrible behaviour would mean risking your job, would you still do it?

    “I think as a profession, it’s just not something we talk about,” says Cahill. “What support is there for HR people going through an ethical dilemma?”

    *Names changed to protect anonymity

     This is an edited version of an article that originally appeared in the March 2019 edition of HRM magazine

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