At this point, there is hardly anyone in this country – and even outside of it – who is not familiar with the #MeToo movement or the daily headlines of this film industry giant, that CEO, or another house representative against whom women have come forward with allegations of sexual misconduct.
While the #MeToo movement has highlighted the systematic failures of preventing or addressing instances of sexual misconduct, it has also brought to surface the discussion on another issue: the lack of inclusion of life experiences and voices of women of color, members of the LGBTQ community, and undocumented immigrants, among other segments of our communities. For example, as noted in a Bustle article, “[d]espite the participation of many LGBTQ people in the ‘Me Too’ campaign, some members of the LGBTQ community feel that the campaign focuses too strongly on the gender binary, and seems to erase nonbinary or genderqueer people from the conversation.” In another instance criticism has been continuous about the omission of the founder of the #MeToo movement, Tarana Burke, who is African-American, from the Time Magazine cover at the end of last year and an overall “hijacking” of the movement from those women who are the most marginalized or vulnerable to sexual harassment or assault. This same narrative has also surfaced during this year’s Women’s March where many articles, such as “Why This Black Girl Will Not Be Returning to the Women’s March” tackled this lack of inclusion and intersectionality.
But what cannot be denied is what significant impact these movements have had in forcing a discussion of how we individually, within our workplaces, and as country define what constitutes these various acts of sexual misconduct. Instead of waiting for a scandal or a lawsuit (or maybe some may be brewing underneath the surface), some entities are trying to be proactive about staying out of the breaking news feeds and are taking a look at their organizational culture to check for “blind spots.” There may be an inclination to have the knee-jerk reaction of cranking the talent pool through a “one size fits all,” “cookie-cutter,” mandatory training in order to be able to check off the “Well, at least we can say that we had a training if we get sued” box. Given the current state of affairs such a posture will most likely not lower the risk of liability or actually increase the likelihood of a safe and respectful work environment. Even those entities that want to push the “reset” button and do better are often left scratching their heads on how to meaningfully set out to a better path.
So, where to begin? Establishing a meaningful and inclusive definition of what constitutes sexual misconduct in your specific entity should be the first step. When surveying the various reactions to these stories in recent news, one comment seems to be a leitmotif throughout most of them: “I didn’t think [insert conduct] was offensive.”
A recent Reuters opinion poll gave some insight into this. 3,000 American adults were given eight situations to decide whether they would personally determine these situations to constitute sexual harassment. “The variation in responses showed a need for employers to spell out expected standards, employment experts said.” From the poll, a general agreement that acts such as intentional groping or kissing (without consent) should be considered sexual harassment. And one could say that there is a general agreement as to more aggressive misconduct such as sexual assault. The issues arise in between these two ends of the spectrum. The Reuters poll showed that the adults surveyed disagreed over a number of other actions such as uninvited/non-consensual touching or hugging, lude jokes or gestures, sending or showing nude images.
While there are federal and state laws that define and describe different acts of sexual misconduct, differences in interpretation of such terms have not done much to clarify the issue, even in the courts.
Suzanne Goldberg, director of the Center for Gender and Sexuality Law at Columbia Law School, states in this DiversityInc. article, that “[t]he onus is on employers.” That should be the case before there is an incident or a complaint. Entities should have clear sexual misconduct policies and complaint and disciplinary procedures that put all staff on notice of what is not tolerated and what the consequences of non-compliance are.
So, what are entities to do? The first step should be to understand who makes up your talent pool, from top to bottom. The point of this exercise is to “scan your system” for all of the behaviors people currently making up the fiber of your organizational culture would deem “offensive,” thereby creating a hostile environment. According to the Reuters’ article, “Americans differ widely in their views of what constitutes sexual harassment, with age and race as well as gender throwing up the dividing lines, posing a challenge for those who police for such conduct in the workplace.” Age and race are but a few of the many different possible factors that will need to be taken into account in this definition formulation. Religion, ability, sexual identification, are all among those factors one should include as well.
So, how can one go about conducting this organizational “scan”? There is no one right. Often, a combination of methodologies can be quite eye-opening.
- Consider providing an online platform, such a question or scenario-based online survey for your employees to complete. One shortfall of that methodology would be the inability to pose follow-up or clarification questions, among others.
- Another method would be to create or utilize Employee Resource Groups (ERGs) within your organization and have a council constituted by ERG representatives to educate your organization’s leadership on commonly experienced issues, particular to certain members of your organization, specifically misconduct directed at them.
- Utilizing a neutral and unbiased “outsider” such as a consulting firm to conduct in-person focus groups could be another option. This methodology is very beneficial as it provides a real time and real live pulse on what and how your employees experience interactions in the workplace on a daily basis.
Armed with that data, your organization should be in a better position to formulate a sexual misconduct definition, policies, and procedures that will be more inclusive and aware of your members’ differing experiences, taking the guessing out of the equation and increasing the likelihood of misconduct prevention.
Carla M. Kupe-Arion is a litigation attorney, Title IX coordinator, and founder and president of The Impact Alliance NFP, a non-for-profit consulting firm that assist entities to create and foster socially just and inclusive organizational cultures.
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