Former EEOC Commissioner on What’s Next for Employers in the Wake of the #MeToo Movement

Wednesday, March 13, 2019

New Morgan Lewis partners Chai Feldblum and Sharon Masling helped lead a Select Task Force on the Study of Harassment in the Workplace at the Equal Employment Opportunity Commission (EEOC), where they spent 18 months studying what companies can do to stop harassment. The resulting bipartisan report issued by Commissioner Feldblum and then-Commissioner Victoria Lipnic in June 2016 laid out a roadmap for harassment prevention. Now Feldblum and Masling bring the culmination of their research and experience to Morgan Lewis as directors of the firm’s workplace culture consulting practice, advising companies on what they should do in the wake of the #MeToo movement.

What are the biggest issues facing employers right now in terms of workplace harassment?

While at the EEOC, Sharon and I examined the myriad and complex issues associated with harassment in the workplace, which accounts for nearly a third of claims brought to the EEOC—and those are just the incidents that are reported. When employers consider the costs of workplace harassment, they often focus on direct legal costs. But as we described in an article for Harvard Business Review, legal costs are just the tip of the iceberg. Employers face problems with productivity and job turnover, and many of those problems can be traced back to harassment in the workplace. So it’s time to change everything, from the way leadership communicates its commitment to harassment prevention, to anti-harassment, respectful workplaces and bystander intervention training that works, to concrete steps employers can take to hold people accountable in a way that will ultimately stop harassment before it starts.

How can you help employers?

We will help companies and organizations create safe, respectful, and inclusive workplaces, where harassment does not occur in the first place, but if it does, where it is dealt with quickly and appropriately. This extends to companies that want to be “best in class,” even if there are no imminent problems looming (at least that they know about), as well as companies that are coming off bad experiences with harassment (even if those experiences are not public). The techniques used to achieve this kind of workplace will vary in each instance. We will learn from senior leadership about policies and accountability measures they currently have in place; we will do a workplace culture assessment using a range of techniques; and we will develop and help the employer implement a strategic plan that includes ideas for leadership, accountability, policies, procedures, training, diversity and inclusion

What do you mean by a safe, respectful and inclusive workplace?

A safe, respectful and inclusive workplace is one in which all workers are safe from harassing behavior, are treated with respect regardless of who they are, and following diversity efforts to bring women and people of color into the workplace, feel truly included in the workplace. These type of workplaces minimize legal risks by reducing the likelihood of illegal harassment occurring and they also maximize an employer’s bottom line.

What techniques will you use to perform workplace culture assessments?

Morgan Lewis has already developed and used various innovative techniques to assess a company’s workplace culture. Sharon and I will bring what we have learned from our research and experience over the last few years, where we spoke with sociologists, industrial-organizational psychologists, investigators, trainers, lawyers, employers, advocates, and anyone else who had something useful to convey on how conduct and behaviors that are left unchecked may set the stage for unlawful harassment. Our focus is on prevention, so we will look far beyond the legal definition of harassment when working with companies. Using both qualitative and quantitative tools and a combination of surveys, interviews, and other approaches, we will seek out those areas that could breed harassment and we will help the employer address those areas. Nothing about this will be cookie-cutter—we will use different techniques based on the unique needs and structures of each particular client we are serving.

Do you think companies will be interested in examining their workplace culture? Do you think they will want to know if there are problems?

One of the reasons we are excited to join Morgan Lewis is that the firm has already done culture assessments for major clients and they have resulted in positive outcomes. We think this track record will make other clients interested in our services, particularly as enhanced by our research and experience.  To create a safe, respectful and inclusive workplace one needs to understand the current culture of the workplace and then one can develop the most effective policies, procedures and accountability measures that meet the unique needs of that workplace. Doing a sophisticated cultural assessment will be worthwhile for employers. Our expectation is that there will be a significant demand for our services, as companies and organizations want to get ahead of the curve during this moment of #MeToo. We believe this is the moment to make real change by helping employers create the safe, respectful, and inclusive workplaces they want.

What’s next?

One of the biggest issues we found in our research is that workplace harassment still often goes unreported. But that is changing. The success of the women and men who were brave enough to report harassment and effect positive change in the workplace is inspiring others to come forward. But what does that mean for employers?

Leadership at the highest level must make it clear that workplace harassment is not tolerated. And it can’t just be lip service. There has to be an accountability program in place to hold every single employee to the same expectation of contributing to a harassment-free environment. That means training must change. These standard harassment trainings cannot just focus on avoiding legal liability. They must be part of a more comprehensive program to create an atmosphere of respect. And that must be modeled not only by the leaders of the company, but by middle managers and first-line supervisors as well.

Harassment in the workplace will not stop on its own—it's on all of us to be part of the fight. Sharon and I hope to help employers create the good workplaces we know they want.