Diversity and Inclusion: Best Response To Increased Sexual Harassment

By:  Amy Epstein Gluck

On Halloween, I intend to head down to the U.S. Equal Employment Opportunity Commission (EEOC) for a public meeting titled “Revamping Workplace Culture to Prevent Harassment” with EEOC Commissioner Chai Feldblum. I plan on adding my 2 cents.

Why? Well, I’ll tell you.

Earlier this month, the EEOC released preliminary data for this year reporting increases in sexual harassment charges and litigation. In fact, the EEOC notes that “hits” on the EEOC’s harassment webpage doubled since the start of the #MeToo movement one year ago.

My erudite partner Eric Meyer told us here that, according to this data:

  • The EEOC filed 66 harassment lawsuits, including 41 that included sexual harassment allegations, more than a 50% increase over last year.
  • In addition, charges filed with the EEOC alleging sexual harassment increased by more than 12% from fiscal year 2017.
  • The EEOC recovered nearly $70 million for the victims of sexual harassment through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.

Numbers don’t lie—sexual harassment in the workplace remains a major problem and a destructive force, and it sucks.

(Me: “Alexa, I need a synonym for sucks.” Alexa: “Sorry, I don’t know that one.”)

What Can We Do?

As I imagine I’ll discuss with the EEOC glitterati, I think organizational intolerance to sexual harassment will go a long way. We know that organizations that tolerate offensive behavior typically have far greater problems with sexual harassment.

Remember, I told you here that scientific studies show that organizational “tolerance” is the single most powerful factor in determining whether sexual harassment will occur. One scholar noted that “[s]tudies have shown that strict management norms and a climate that does not tolerate offensive behavior can inhibit harassment, even by those with a propensity toward such conduct.”

Ok, got it. We know that organizational tolerance or climate must be part of your HR planning.

Anything Else?

Well, yeah.

Consider the demographics of your workforce—do you foster a top-down commitment to anti-discrimination, anti-harassment, and diversity and inclusion? Understand that true diversity is not about statistics. While we all bring our own backgrounds and experiences to our workplaces, diversity is about having a wealth of different perspectives and experiences—and enriching the workplace because of it. That’s why a diverse culture is key.

For example, as my partner Rich Cohen and I debated in a series of articles for Above The Law about our various perspectives on certain sexual harassment issues, you have to stand in another person’s shoes somewhat to understand discrimination and why diversity is so important.

So, What IS Diversity And Inclusion, Exactly?

Let’s get some definitions straight here and draw some distinctions.

Affirmative action (AA) remediates historical wrongs by trying to eliminate the present effects of past discrimination. AA is commonly known as a legal directive requiring government contractors to measure employment practices and build a workforce that reflects the actual community in which they work.

Diversity and inclusion are different animals entirely, though the same species.

Diversity refers to the components of a workforce; inclusion measures how fair and inclusive the interactions and practices are within the workplace.

A diverse workplace has individuals who represent different races, national origins, ethnicities, genders, abilities, sexual preferences, ages, interests, backgrounds, levels of educational achievement, socioeconomic statuses — and the list goes on.

Diversity embraces cultural differences in the workplace, and, as such, come closest to reaching true parity.

But how?

Workplaces that implement diversity initiatives do so by valuing and managing the whole idea of diversity (and its BFF, inclusion). A workplace that values diversity achieves it through awareness, education, and the recognition (in a positive way, of course) of cultural differences within the workplace and not just on changing the representation of various types of people in the workplace to fill a quota. It values the unique contribution that each employee can make, then creates an inclusive work environment where awareness of, and respect for, those of different cultures is promoted. The management of diversity establishes the business case for diversity—as an organizational goal. There are no legal requirements, just the understanding that diversity is part of a company’s business plans.

Inclusion refers to how employees working in diverse workplaces feel that they are treated—do they feel respected? Do they have opportunities within the organization to grow and succeed?

A great example of a company that does both is Dow Chemical, which I wrote about in discussing their LGBT policies here. As I noted then, Dow fosters an inclusive work environment, which has translated to less attrition and increased profitability for the company. G.E. does the same, which we told you about here, as does Marriott International.

Is it successful?

Well, the Harvard Business Review (HBR) stated here, in an article aptly titled “Diversity Doesn’t Stick Without Inclusion,” that leaders have long recognized that a diverse workforce of women, people of color, and LGBTQ individuals confers a competitive edge when selling products or services to diverse end users.

But. (Why is there always a “but”?)

HBR identifies the rub—“a stark gap persists between recognizing the leadership behaviors that unlock this capability and actually practicing them.”

You’ve heard me say this before, most notably when talking about minimizing bias: if you’re gonna talk the talk, you gotta walk the walk.

How Can Employers Attract and Retain a Diverse and Inclusive Workforce as Opposed to Simply Filling Quotas AND Revamp Their Cultures To Prevent Sexual Harassment?

As we wrote about heretrue parity in the workplace can raise productivity and efficiency while enhancing employee satisfaction and increasing revenue. Moreover, solid anti-discrimination and anti-harassment policies and dismantling workplace biases and discrimination must “trickle down” from the top.

Here are some additional tips we’ve previously provided:

  1. Make a compelling case for the benefits of diversity. You can do this in your policies by telling your employees why diversity is so important and how it benefits the entire company. And, as we’ve said time and time again, senior leaders play a key role. Have open, candid conversations about it, and be transparent about where you think you are and how far you have to go.
  2. Ensure the fairness of hiring, promotions, and reviews. Have a strong policy promoting diversity and inclusion, and implement it, filtering out inherent bias where you find it. One example suggested by one study is to conduct blind résumé reviews to reduce any chance of gender bias.
  3. Employee training. As I emphasized herehere, and practically everywhere, substantive, hands-on training for your employees and supervisors, including the C-Suite, is critical. It should be interactive and tailored to your workplace and company culture. As my partner Eric Meyer said here, trainings work when they are up-to-date.

The lesson on training? Make it mandatory, but make it interactive, current, and engaging. Address real life examples. Otherwise, what’s the point?

  1. Focus on accountability and results. Target goals for hiring, promotions, and equal pay.
  2. Involve everyone, and not just those negatively affected by a lack of diversity and inclusion.
  3. Take a long, hard look at your organizational culture or climate, and do some of the above to change it, if needed.

The lingering effect of harassment continues and is, indeed, rising, but if, as employers, we embrace the concept of diversity and inclusion, we might obtain a state of efficiency and equity that will only benefit our workplaces. As Rich wrote here, “better decisions come from diversity.”

I’ll be sure to pass this on to Commissioner Feldblum when we talk about revamping the workplace culture next week.

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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.