A "Plan” to Combat Sexual Harassment in Silicon Valley

By: Amy Epstein Gluck

Entrepreneur Meena Harris, founder of the “Phenomenal Woman Action Campaign,” has a plan for the sexual harassment allegations pervading Silicon Valley companies.

As Ms. Harris wrote here, industry leaders have begun to highlight sexual harassment as an issue that the tech community must grapple with and solve.

And she thinks this position must be taken a step further.

Harris’s Plan

Ms. Harris provides a roadmap consisting of two clear steps followed by specific recommendations:

First, the conversation needs to change, which translates to Silicon Valley adopting principles that reflect our abhorrence toward and intolerance of sexual harassment.

Her second step is to create a standalone (neutral?) trusted body to ensure that these values are put into practice at the organizational level.

I like these steps, though I think we already have that trusted body in the Equal Employment Opportunity Commission (EEOC), the agency tasked with enforcing the anti-discrimination and anti-harassment laws. There are state agencies that do this too! In most states that have anti-discrimination laws, which supplement the federal laws or apply to small employers, the state agency is called the Human Rights Commission or Department. However, Ms. Harris may have hit on something by suggesting an additional body to provide incentives to companies to, essentially, pledge to eradicate sexual harassment.

Ms. Harris also offered specific recommendations for implementing her roadmap to eradicate—or at least diminish—sexual harassment in the Valley, specifically.

I like them! Know why? Because I’ve provided these exact recommendations on this blog multiple times in the past year or so!

Amy’s Plan

One preliminary note that I think is underutilized by businesses and absent from Harris’s recommendations: Use. HR. They can help.

I think HR gets a bad rap sometimes. Hire knowledgeable HR people who will work with general or outside employment lawyers, and these recommendations – echoed in Harris’s plan – are totally doable. It’s their job to keep your company out of trouble with the EEOC, and if that means disciplining your top salesperson, support HR—it’s your legal obligation. Once an employer knows—i.e., once HR, a supervisor, or any manager or officer—about discriminatory or harassing conduct, the employer must investigate and take corrective measures.

Amy’s Recommendations for Employers (Yes, including in Silicon Valley)

To affirm Harris’s “plan,” and reaffirming recommendations from several past blog posts of my own, I offer you the following:

  1. Have a clear, no-tolerance sexual harassment policy set forth in your employee manuals and handbooks; ensure it is disseminated throughout your company and understood.
  2. Apply the “trickle down” theory where there is a zero-tolerance policy for discrimination from the upper echelons of the company to the mail room. People follow the leader so when executives and managers create a workplace free of discrimination, others tend to “follow the leader,” a phenomenon Rich discussed at length here.
  3. Have a specific procedure for investigating any and all claims of sexual harassment (no matter who the accused is and what that person’s position is in your company) and follow it, documenting the process along the way. As Ms. Harris wrote, DON’T ignore any such claims.
  4. Train and educate your employees, HR personnel, and executives about EEO policies and laws. Then train them some more—not all sexual harassment is overt or easily discernible. Use Power Points and real-life hypothetical scenarios. As I emphasized here and often, substantive equality and sexual harassment training for everyone in your workforce, but especially managers and supervisors, is critical.
  5. Encourage reporting of sexual harassment and convey that your company will not retaliate (i.e., take an adverse action) in any way against any person who reported sexual harassment and then keep the person reporting the harassment up to date on the investigation. Remember: it is against the law to retaliate.
  6. Document extensively any employee’s claim of sexual harassment or sex discrimination as well as the steps you take to stop and prevent it.
  7. As I wrote about here after Susan Fowler’s revelations about sexual harassment at Uber, focus on accountability and results (Ms. Harris’s “fair process”).
  8. Use targets to set goals for hiring, promotions, and equal pay—use metrics (I love that one from Ms. Harris). Ensure the fairness of hiring, promotions, and performance reviews. Have a strong policy promoting gender diversity and implement it, filtering out any inherent bias where you find it. Allow for flexibility and telecommuting in jobs where face-time is not necessary.
  9. Provide pay transparency, which Ms. Harris omitted, but I think is so important. As I talked about here (when singing the praises of my forward-thinking law firm), transparency gives women a level playing field for negotiating salaries and pay increases.

We’ve provided “the plan,” and now it’s up to you, employers in Silicon Valley and elsewhere.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.