Time's up on sexual harassment in the workplace

The topic of sexual harassment crops up with depressing regularity at the moment. But there are things government and employers can do to change things for good

“On my last day at work a colleague told me that his biggest regret was that he didn’t get the chance to rape me in the storeroom before I left. For months I had been scared to go into that room on my own because he always said things like ‘I’m coming to get you’.”

It sounds like an anecdote from a bygone era – the ‘70s perhaps – when women were still a rarity in some workplaces and as such treated as an exotic, inferior species. As does the following account.

“He manoeuvred me out of his office into the corridor and put his arm around me and kissed me. I can remember trying to fight him off… but it didn’t stop him. I told my line manager and nothing happened, so I just left it.”

But both happened much more recently. And both are representative of the kind of behaviour that has shockingly come to light as more common than we might like to think.

First came the Harvey Weinstein scandal in October, when an investigation by The New York Times found previously undisclosed allegations of sexual harassment, assault and rape stretching over nearly three decades, with victims feeling they had no choice but to accept payouts and agree to confidentiality clauses.

This was followed in the UK by defence secretary Michael Fallon’s resignation in November over ‘inappropriate flirtation’, and then the suicide of former Welsh government minister Carl Sargeant after he was sacked over allegations from a number of women.

This year Oxfam and The Presidents Club have grabbed the most headlines. The latter thanks to a Financial Times exposé into how hostesses at a men-only dinner were groped, propositioned and forced to sign non-disclosure agreements (NDAs) to prevent this coming to light; the former when it emerged that some of Oxfam’s staff paid for sex with prostitutes in Haiti and the charity was accused of attempting to cover this up.

The spotlight was subsequently shone on the charity sector more widely, including Save the Children. Then, in March, came a Newsnight investigation into sexual harassment and bullying at Westminster, uncovering a large number of staff – women in particular – feeling they have no protection from a minority of abusive MPs.

It was from this investigation that the second anecdote above was drawn, involving a female clerk and male MP in the ‘90s. Hers joined other much more recent accounts of women reporting being pushed against walls, forcibly kissed, groped and slapped by MPs.

Everyday sexism

And yet also surfacing alongside high-profile accusations (against Aled Jones, Dustin Hoffman and US comedian Louis CK to name but a few more), have been those such as the first testimony above, cited in an Everyday Sexism and TUC survey, which found that more than half (52%) of women have experienced sexual harassment at work.

Clearly this isn’t an issue confined to the high-pressure worlds of entertainment, politics or overseas disaster zones. But rather still a depressingly common feature of many women’s (and men's) day-to-day working lives.

The question many are no doubt grappling with is why – given the spotlight has been shone on the issue numerous times over the years – do we still have such a problem? The even more urgent question: what needs to happen this time around to finally tackle it? And for HR: how can the profession play a leading role?

The last seven months have shone an anything but flattering light on HR. “HR and legal have let businesses down,” says former lawyer and group HR director at Charles Stanley Kate Griffiths-Lambeth.

“To have one settlement agreement because it was more comfortable for all parties is sort of fair enough. But to be continually writing settlement and compromise agreements for the same kind of issue… That really upsets me.”

Again the problem is far more widespread than Hollywood. “I know HR colleagues that don’t know what to do [in this kind of situation],” laments assistant director of HR at Hertfordshire County Council Sally Hopper. “Therefore they acquiesce to the behaviours. Because they think ‘well I’m not sure, it’s no big deal’.”

“There are some HR professionals who are incredibly good at managing these sorts of issues, but unfortunately they’re still in the minority,” agrees Elisabeth Kelan, professor of leadership and director of the global centre for gender and leadership at Cranfield School of Management. “There’s a lot of anxiety when something like this comes out, maybe even a bit of guilt that they [the HR professional] hadn’t spotted it earlier. So I think there can be a, perhaps subconscious, urge to hush things up.”

Legal change

It’s a disturbing picture – and one that throws the question of how to prevent such scandals in future into even sharper relief.

It’s a question the UK government has inevitably – spurred by #MeToo and Time’s Up pressure – turned its attention to. February saw the launch of a Women and Equalities Committee inquiry into sexual harassment in the workplace, which has so far taken written evidence and is currently gathering oral accounts, with the aim of publishing recommendations in June or July.

One of its key remits is to assess whether legal change is needed, with many advocating for this. Among the most notable of these: the Equality and Human Rights Commission (EHRC), which published a report at the end of March calling for the government to ban employers from using NDAs to protect their reputation in sexual harassment cases, recommending they only be used at the request of the victim.

It also called for the time limit to bring a claim of sexual harassment to tribunal to be extended from three months to six, joining suggestions made by the Fawcett Society’s sex discrimination law review document – which also called for the reintroduction of Section 40 of the Equality Act, placing a legal responsibility on employers to protect employees from ‘third party’ harassment.

Enabling better access to justice for women who’ve been harassed or bullied at work is a crucial element of current consultations, says the CIPD’s head of research Ksenia Zheltoukhova who gave evidence at the inquiry launch. She points to last July’s abolishment of tribunal fees as the most critical aspect of this, highlighting too the potential role for employer questionnaires – which would allow victims to gather information on previous similar incidents before lodging a claim.

She warns, however, that such new measures must be carefully weighed up: “On the one hand you do get the benefit of the employee having transparency… But on the other you have the burden on small employers to respond to these questionnaires.”

Zheltoukhova is similarly mindful of the need for a balanced approach to NDA reform: “I do think we should discuss how we deal with NDAs better. For example, do we want to report how many of these a company has entered into, but maybe with a mechanism for victims to preserve their anonymity?” She adds that what many don’t realise is that NDAs are often as much about what the victim wants as they are about protecting the employer and the perpetrator.

Another misunderstanding is how NDAs can and can’t be used legally, adds Dan Peyton, managing partner of law firm McGuireWoods’ London office. “You can never use an NDA to gag a person who might legitimately want to blow the whistle,” he highlights, explaining that the law should work well if applied correctly, and he therefore wouldn’t expect fundamental change here: “Maybe there’ll be some kind of cosmetic change to make it easier for people to know their rights… But it seems to me the protections are already there.”

The issue Peyton points out is that there’s been conflation, particularly in the wider media, of use of NDAs with brushing things ‘under the carpet’. NDAs were certainly used improperly, and probably illegally, in instances such as Weinstein. But the bigger issue is not that his behaviour wasn’t reported for so long by the press. But rather that no action was taken to bring Weinstein to account internally and criminally.

“Covering it up is where you don’t do anything about it, you don’t deal with the issue, you don’t impose a sanction effectively against the party in the wrong,” says Peyton. “That’s a separate issue to the use of an NDA.”

Mandating change

For many, legal remedies for those who’ve been forced to bring their employer to court rather miss the point. Which should be, as Peyton outlines, dealing with the issue quickly and robustly internally so that the victim, and prospective future victims, are protected.

“Having to stand and talk about allegations in a tribunal is not a nice experience,” agrees Kate Palmer, head of advisory at Peninsula. “Most people want something dealt with internally and a tribunal is a last resort.”

Perhaps legal change should, then, be focused on encouraging better internal preventative practice. So far suggestions have included mandatory workplace risk assessments, line manager training, and (as proposed by the EHRC) a new positive legal duty on employers to take effective steps to prevent harassment or victimisation in the workplace. (The EHRC has also called for employers to be obliged to publish their sexual harassment policies on their websites.)

It is this approach that inquiry chair and chair of the Women and Equalities Select Committee Maria Miller finds most compelling. “We already have within law a really helpful definition of sexual harassment. There are already criminal remedies,” she points out.

“However, what struck me when listening to the initial evidence was that we have structures in place with data protection and money laundering, yet we have nothing to drive corporate compliance on sexual harassment,” she tells HR magazine. She adds that some organisations unfortunately will “only really take this seriously if there are consequences over and above reputational risk”.

Former group HRD of Merlin Entertainments, former lawyer and Women in Hospitality chair Tea Colaianni agrees on the need for regulatory pressure.

“Businesses might see guidelines that they have to report on as an unnecessary layer of red tape, and I have heard some CEOs articulate their feelings in that way,” she says. “But unfortunately we are at a stage where we have witnessed unacceptable approaches and it is time to reframe the conversation in a much more compelling way.”

Others are less convinced. “People will do some things – take GDPR and gender pay gap reporting – when they have to… But it needs that further step, which can’t come from legislation,” says Palmer. She points out that employers already have a legal duty to take “all reasonable and practicable steps to prevent harassment”.

Griffiths-Lambeth agrees: “I may be cynical, but it seems to me that enforced regulatory-based training often ends up focusing on ensuring that employers can understand and avoid legal liability, rather than actually stopping misconduct.”

She adds: “Sexual harassment prevention training has been mandatory in California since 2005… But despite this we know that harassment remained rife… It is the culture of a business that is most likely to make the difference between a place where harassment is rife or non-existent.”

Power not sex

Organisations, many feel, must realise that sexual harassment and misconduct aren’t just unfortunate occurrences that need to be dealt with more robustly in future. Instead such behaviour goes right to the heart of the complex structures and power dynamics that make up organisational life – dynamics far too intricate and subtle to be dealt with on a purely regulatory basis.

Perpetrators continuing unchecked for so long is down, for visiting professor of organisational ethics at Cass Business School Roger Steare, to a fundamental flaw in the way workplaces are organised.

“Most people at work are good people who want to do the right thing, but the way power is organised – including in social enterprises and charities – means the driving emotion for most people is anxiety or fear,” he says.

This means “the system is so badly designed that most people do the wrong thing [and don’t speak up when they see abuse of power] because they’re afraid for themselves, their families, their careers, their statuses,” says Steare. This includes those in HR.

“In every single organisation I’ve worked with [delivering leadership, culture and ethics programmes] HR has either looked the other way, colluded with or enabled sociopaths within the workforce,” says Steare. “The problem we have is that the structure of the workplace gives energy to those who are self-centred with egotistic traits.”

The kinds of male-perpetrated harassment and bullying coming to light typically have much less to do with sex than power, points out Harvey Francis, executive vice president and group HR and comms director at Skanska UK: “Sex just becomes another way to deploy the power rather than it being about the sex itself.”

We’ve certainly seen this in the case of charities, feels Shakil Butt, former HROD director at Islamic Relief Worldwide. “If you were a worker in Haiti that power distance between you and everyone else [meant] you were untouchable,” he says. “I think these things happen wherever you have any imbalance of power.”

A key factor in cultures that fail to hold power to account is collective ‘wilful blindness’, says entrepreneur and author Margaret Heffernan. Her book Wilful Blindness explores the way in which ‘organisational silence’ is created by everyone assuming malpractice is OK, or someone else’s issue, because they know everyone is also seeing it.

A particularly dangerous aspect of this is where individuals have conversations but then fail to act. “What’s interesting about informal conversations – where someone says ‘so and so was a bit of an asshole’ – is they feel a bit like action but they’re not,” says Heffernan.

Nipping “the small stuff in the bud” becomes crucial in light of our often well-meaning natural tendency towards wilful blindness, adds Heffernan. “You see that in sexual harassment, cases of medical incompetencies, minor fraud… Everyone sees this small stuff and no-one does anything about it. But guess what happens? It grows.

“So it’s really important, and much easier, to deal with small-scale abuse. To say: ‘that was a really belittling remark, you can do much better than that’.”

The trick is to create cultures that empower people to speak up and, most importantly, engage in dialogue about what is and isn’t acceptable, says Peyton.

“You don’t want a workplace where people are afraid to engage. We want a culture where, when someone is offended by something they can raise it and it isn’t hugely sensitive – where someone can say ‘sorry, let me understand why I offended you’,” he says.

Again this is about much more than harassment, highlights Heffernan. “It’s when people have the courage to speak up that good ideas emerge,” she points out.

“So the very suppressive silent cultures that most organisations have both blind them to dangers, but also deprive them of good ideas.”

Challenging power

Cultures where people aren’t afraid to voice concerns must, however, be underpinned by genuine consequences for perpetrators of the most serious unacceptable actions. The issue still for many is holding bad behaviour to account even where the perpetrator is indispensable ‘star talent’.

“In investment banking the shocking behaviours come from the very high earners who feel they have a right. Same in the law firms – it’s senior lawyers on the cusp of partnership,” reports Griffiths-Lambeth.

Francis recounts an instance at Skanska that sent a powerful message that no-one was above ethical behaviour. The individual in question had behaved inappropriately at a company event for two years running, the second instance much worse than the first. Although they volunteered to leave there’s no doubt they’d have been asked to step down otherwise, says Francis.

“This was a high-performing person in quite a critical role that was difficult to replace. But we didn’t hesitate… Because it needs to be clear there are consequences: everything from dismissal to retraining,” he says.

HR can never be too proactive, says Griffiths-Lambeth: “I refer to it in every induction and to everyone who comes into the firm. If there’s something going on, whatever it is, chat to your line manager or come to me.”

Practitioners must go further and audit the organisation to find out where problems lie, says Colaianni. “Don’t wait for someone to speak up, do some internal research,” she says, adding the importance of measuring success: “So you say: ‘how will we know when we’ve changed?’”

“I do wonder if there’s something about being in HR that means we’re slightly immune to the reality,” muses Hertfordshire County Council’s Hopper, pointing out that many employees won’t behave badly around HR professionals and so it’s important to find out what’s really going on.

The perhaps most powerful tool available to HRDs concerns the sort of individual that’s brought into the organisation in the first place, and the assessments used, adds Griffiths-Lambeth. “Screening you can do even before you bring people in,” she points out. “It’s: ‘don’t hire the psychopaths or sociopaths!’”

Creating monsters

Others would state, however, that the issue is even more complicated than organisational systems of power and control that allow certain personality types to ‘get away with it’. Much more uncomfortably, employers must recognise their role in ‘creating monsters’ where toxic cultures pervade.

“My concern is that there is more coercive control than in the rest of our lives – and the way power is organised makes it much more likely that the ‘dark side’ within us comes out,” says Steare. “You see that in conformity theory. Academics have demonstrated that the majority of people will do bad things if they’re in the wrong sort of environment.”

“It’s organisational identity; people start identifying with their organisation and behaving like a group even if it clashes with their personal values,” agrees the CIPD’s Zheltoukhova.

It’s critical to recognise that this can occur both through people emulating specific bad behaviours – a sexist remark, a hand on a knee – but also through omission, says Heffernan. Even organisations convinced of the need for zero tolerance may be unwittingly creating the conditions for harassment and bullying to thrive through not scrutinising their cultures closely enough.

“In cultures that are extremely competitive you’re going to see higher levels of abuse,” says Heffernan. “Because if I’m fighting for my life I’m going to do whatever it takes to keep down any threat.”

Bad behaviour is, for many, the fallout of cultures that fail to maintain a sense of humanity, often through the pursuit of other well-meaning ends such as productivity, efficiency or profitability.

Kevin White, former HR director general at the Home Office and the Department for Work and Pensions, draws a clear distinction between the cultures of Westminster and the civil service. But he describes how an endeavour over recent years to bring more commercial discipline to the civil service could bring a negative side-effect – with clear implications for the private sector spheres it emulates.

“Some of the appointments have brought with them a set of behaviours that are sharper, more delivery-focused,” he reports. “A lot of that is good. But alongside that are accompanying behaviours that tend to be a bit less friendly, a bit more dominating, taking for granted politeness and respect.”

Another complex part of this debate are wider gender relations, says Cranfield’s Kelan. She agrees that all too often organisations create unsavoury behaviour. And that often this is linked to the promotion of stereotypical gendered behaviour at work.

“Society and our workplaces still send a signal that if you are a powerful man this is what you can and maybe should do,” says Kelan. “We need to ask ourselves if our perception of normal masculinity is very much bound up with these sorts of behaviours.”

Gender pay and ongoing issues of gender inequality in the workplace may seem very separate from, and much less scandalous than, harassment. But Kelan highlights the links.

“Sexual harassment is an extreme form of gender relations,” she states. “It might just be a well-meaning comment about a woman being amazing at multitasking, which seems harmless and complimentary.

But that still creates an overall impression of women being different. That leads to different treatment in the pub… and maybe worse later on.”

Butt points to the many firms who still place attractive young women on reception desks and the insidious message this sends. He adds the perennially urgent matter of bringing more women into senior leadership to ensure power is balanced throughout the organisation, and to ward against subtle, yet incredibly corrosive, messages regarding ‘what women are for’.

He emphasises the importance of men getting involved in conversations around sexism, sexual harassment and gendered bullying. Heffernan agrees.

“I’m hardly alone in being extremely frustrated that after 30 years of diversity efforts and billions of pounds we have made so little progress. This is difficult to say, but I think one reason is because most efforts have been led by women for women,” she says. She explains that in all areas of diversity people should champion every characteristic except their own: “Otherwise it’s really hard to get a straight conversation on the topic.”

Corporate misogyny

HR professionals must ultimately recognise the disturbing implication of recent scandals for how women are still viewed by society and the world of work, adds Heffernan. That such behaviour is still perpetrated shows how little we collectively think of women, she says.

“I’m just so anxious about the levels of misogyny that have been revealed – by the number of men who clearly look upon women as fair game,” she says. “Because demeaning someone in this way really is an act of hatred. And it’s daunting when you see it up close.”

On the matter of gender stereotyping in particular, many might counter that organisations are one part of society and can only do so much. But HR must remember the vital opportunity businesses have to shape attitudes and drive change, says Kelan. Just as workplaces must recognise the uncomfortable truth that they may have played a role in shaping dehumanising behaviour, they can also use their power to create the opposite traits.

“What’s really exciting is that you as an employer have the power to change behaviour,” she says. “If you pay someone a salary you have, at least within the remit of the workplace, the power to tell them what is and isn’t appropriate. You can lead society to the next stage of human development as it were. You don’t have to be a victim of it.”

“Every individual in the organisation is an ambassador and a route to affect the world outside,” agrees Sam Smethers, chief executive of the Fawcett Society. “If you train staff well and give them a good environment that will affect them as a human being.”

So, while deeply unsettling, the scandals of recent months should be seized as an opportunity for HR to make its mark. And HR can harness such shocking instances to push for change on wider issues; with business leaders hopefully sitting up and receptive to what they now realise could be hugely reputationally damaging.

“Because there’s a live issue now people can really get it,” says the CIPD’s Zheltoukhova. “You can highlight that sexual harassment is one problem but there is a bigger cultural issue around power and empowering people.”

Unfortunately there will always be leadership teams unreceptive to such issues and even to dealing properly with worst-case offenders. In such instances HR professionals must be prepared to move on, says Shokat Lal, assistant CEO at Rotherham Metropolitan Borough Council.

“To be that moral compass you have to stand firm. You can’t think ‘I could lose my job’. It’s your job to risk losing your job,” he says. He adds the power of companies speaking out where they’ve encountered, but then dealt well with, misconduct: “Showing the courage to address these issues says so much about you as an organisation.”

Over to you

So organisations could, if HR seizes Time’s Up and #MeToo momentum, be poised on the cusp of change. “We need to go from anger to behaviour change,” says Smethers. “I don’t think we’re there yet; there’s probably more shaking out [of revelations] to do… But it’s an amazing moment. I think culturally things are shifting.”

There might be several new legal and regulatory mechanisms announced this summer, compelling businesses to act more responsibly and increasing the costs, and likelihood, of tribunal reprisals if they don’t. However, meaningful change can perhaps only be driven by organisations and HR departments themselves.

HR professionals should see this as a watershed moment not only in addressing the complex roots of sexist behaviour, but also to see workplace harassment and bullying as just one – albeit highly important and deplorable – symptom of a wider malaise.

HR should look to what such behaviour tells us about organisational power dynamics, culture and perceptions of women.

There’s no room for complacency. “I’ve been particularly horrified by the level of casual sexual abuse my daughter experiences at university from other students,” comments Heffernan, putting paid to the argument that sexual misconduct will naturally fade as a handful of ‘dinosaurs’ leave the workplace.

“It is a social turning point, but it’s whether the lessons can be learned and become part of our normal DNA,” muses White. “Or whether as gradually the noise goes away attention slips to another focus…”

As of course has happened before. So HR: over to you.