Workplace Sexual Harassment And Bullying: Can Anything Be Done?
What can we learn from the experience of other countries?
The problem of workplace bullying is huge, but neither the U.S. nor any state has taken any legal steps to rein it in.
As Christine Comaford reported in Fortune, “Research from Dr. Judy Blando (University of Phoenix) has proven that almost 75% of employees surveyed had been affected by workplace bullying, whether as a target or a witness. … According to the Workplace Bullying Institute (WBI), bullying is four times more common than either sexual harassment or racial discrimination on the job.”
Even with this upsurge in bullying, bullies are largely immune from any legal remedy in the U.S. unless the bullies commit something like assault, or bully others because of their protected class status, such as age, race or sex. That’s where something like sexual harassment comes in.
Not All Legal AI Is Created Equal
A good place to review how bullying and harassment are legislatively treated globally, as in Australia, is Ellen Cobb’s excellent updated book, Workplace Bullying and Harassment: New Developments in International Law, which I have recommended before.
Is there anything that can be done to stop bullies – by either their victims or employers?
Around the world there are a lot of ideas… will any work?
Are We Hardwired To Harass?
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According to writer Michael Price, a new study shows that “Male baboons that harass and assault females are more likely to mate with them… adding evidence that sexual intimidation may be a common mating strategy among promiscuous mammals.”
What, if anything, does this say about us?
Price says that “The study’s authors even argue that the findings could shed light on the evolutionary origins of our own species’ behavior,” although Duke biologist Susan Alberts (who praised the study) said, “I also think it’s a big stretch to infer something about the origins of human male aggression towards women.”
Whew.
Anyway, What Can Be Done?
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Let’s get back to Ms. Comaford in Fortune:
“The reality is that the leadership team is responsible.… It’s up to you to create an environment that is safe and healthy for the entire team.… The first step is to confront the bully.… Agree on objective performance measurements. Make sure that the bully transfers their feeling of threat from their target to the organization. Give them specific ways to manipulate and control their own outcomes—turn their skills into assets if possible. …”
Are Diversity And Inclusion The Answer? Female Mentors?
Isha Salian, in The San Francisco Chronicle, wrote about the yearly “Female Founders Conference,” where Silicon Valley speakers recently commented that “Diversifying industry leadership and investing in the right people will be crucial to fixing the industry. … Y Combinator partner Kat Mañalac said that ‘Having female mentors or feminist mentors is critical and necessary,’ and that ‘the fact that now we are speaking up more, that has changed.’”
Sam Levin writes in The Guardian that “The Tech Leavers Study … [reported that] Tech workers most frequently cited ‘unfairness or mistreatment’ as the reason for leaving” and suggested that “strong diversity and inclusion initiatives, such as explicit diversity goals, unconscious bias trainings, employee resource groups and bonuses for referrals of diverse candidates, can significantly improve retention.”
What About The Rest Of The World?
One Australian woman, tech developer Karolina Szczur, “runs inclusive and diverse tech events in an effort to increase visibility of women in the industry, changing the culture will be supported by three major pillars. ‘Activism, education, and creating a safer platform online and offline [for women to share their stories].’”
Angela Priestley wrote about a public statement in Australia signed by hundreds of “leaders across the ecosystem” of start ups, which “calls on founders, startup execs, investors and journalists to have a no-tolerance policy to sexual harassment — and to think twice about promoting or working with individuals they know have acted inappropriately towards colleagues or founders.”
The Indian Express reporter Priyanka Sahoo wrote that one tech startup has a “gender sensitisation session” or “compulsory workshop” which is “aimed at helping attendees understand the nuances of sexual harassment at work. Aspects such as how does one report an instance, how does a superior officer handle such a complaint, what are the rights of the complainant and what is a bystander’s role in such cases were taken up. ‘Our aim is to make our office as inclusive and safe as possible. The workshop was an initiative towards that goal,” said the founder.
Are Unions The Answer?
In New Zealand, Japan, and Australia, people are organizing unions to deal with workplace bullying and harassment. One Australian woman said, “There are basically no unions. There’s very little representation of groups of employees. Most tech companies don’t have an HR department, or if they do it’s seen as kind of a joke. The motto is ‘move fast and break things.’”
The Japan Times reported that female employees at an investment fund who claim to have been sexually harassed by its executives “have formed a labor union and are calling for information disclosure and steps to prevent similar cases, claiming the entity’s handling of the alleged harassment cases is unsatisfactory.” The lawyer for the union said, “We intend to seek improvements to the workplace and working conditions through the labor union.”
Workplace bullying is at very high levels in New Zealand, where a decade ago it had the second-worst rate of occurrence in the developed world – 20%.
One article reports that the Director of Culture Safe New Zealand, Allan Halse, believes that “it has escalated since the 1991 implementation of the Employment Contracts Act, which stripped trade union authority.… It is treated as an employment issue, which employers often deny and try to identify as employment relationship issues and the problem of those complaining of being bullied.”
He was quoted as saying:
“It’s a lot worse than I ever believed it could be.… probably 25 per cent of our clients . . . have actually entered the mental health unit because they have either had mental breakdowns, they are suffering from post traumatic stress disorder or something similar.…” He said he wants workplace bullying to be treated “as a health and safety issue, rather than an employment issue.”
Takeaway
The bad news is that harassment and workplace bullying are ubiquitous. The good news: there are initiatives being implemented worldwide by folks who feel empowered to do something about it, or at least to “speak up more.”
Richard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.
