#BoardsToo

The social movement has shone a light on the prevalence of sexual misconduct in the workplace and makes it imperative that boards and businesses respond appropriately. Reports Amy Braddon and Narelle Hooper.

Since last October, the #MeToo phenomenon has swept the world, spurred on by social media, celebrity and society. And while it may have started in the United States and gathered momentum with the Harvey Weinstein scandal, a distinguishing characteristic of this and its related social movements is the degree to which it has resonated across cultures. In South Korea, revelations in the legal, cultural and entertainment sectors sparked a #WithYou response and prompted public protests.

In Australia, there have been allegations against entertainers including Don Burke and Craig McLachlan, partners and staff at four professional services firms, and former Melbourne Lord Mayor Robert Doyle (which has been upheld). #NeverAgain, #TimesUp and #MeNoMore are coming to big and small enterprises across the sectors.

Speaking on the 21st century workplace at a recent South by Southwest forum in Austin, Texas, Melinda Gates, co-chair of the Bill & Melinda Gates Foundation identified a dramatic shift in social attitudes.

Gates described the #MeToo movement as causing a reckoning —shedding light on what is happening in society. She emphasised that while the workforce had changed dramatically in recent years, the workplace had not.

She recalled the aggressive, combative behaviour of colleagues during her days working in technology and her eventual realisation that she wasn’t the problem; it was the mould she was trying to fit into.

“This is a story that repeats itself, industry after industry, generation across generation,” she said. “We can’t keep building the same old blueprint that created the old boys’ club.” The #MeToo campaign represents a unique generational opportunity to challenge social norms of acceptable workplace behaviour and the way personal relationships are managed within organisations, according to directors.

It also brings into view how allegations of harassment and sexual misconduct are handled and the widespread failure of policies, procedures and complaint mechanisms across workplaces — driving boards and businesses to review operations and get their house in order.

Dr David Cooke MAICD, chief executive of Konica Minolta and a male champion of change, says a very clear line in the sand has to be drawn and the definition of harassment well understood.

“Sexual harassment is an issue that has existed in various forms within the workplace and our wider society for a very long time. Let’s make no mistake, we are talking about a human rights issue, one that many will see as a part of the broader gender equality discussion that has started to assume its rightful prominence at board and executive level.

“I think it is an indictment on our workplace culture today that it took the #MeToo and #TimesUp campaigns on social media to focus the minds of many organisations in Australia.

“CEOs need to be responsible for removing any ‘grey’ around this issue through education, constant reinforcement and, of course, their own behaviour.

“When issues surface they must be investigated quickly and comprehensively and action taken that sends a clear message in regards to the company’s lack of willingness to accept wrongdoing, if that is what is found to have occurred,” he says.

Risk register

Dr Abby Bloom FAICD, a risk and audit committee member whose directorships include Sydney Water, says, “I think that most boards would — should — put a risk and audit lens on the issue. There has been a major shift in perception of sexual harassment and companies’ participation in and response to the issue. There has also been a major shift in the tolerance levels of community, customers and staff.

“We would put a risk and audit lens on any similar change in the internal and external environment and we must do so here,” she says.

“This is because the risk appetite for these issues has shifted dramatically in the past year. The fact that so many organisations have had to emphasise a zero tolerance of sexual harassment is evidence that if it does exist, the zero tolerance message hasn’t been communicated, followed up, or respected.

“Clinically speaking, consistent with good practice in risk management, boards should seek assurance that management has done a thorough review and updating of policies and procedures. A by-product of the process is also likely to be dispassionate discussion of the issues at the board level.

“The usual questions apply: are risk management processes in place, and are they consistent with, and will they deliver on the updated risk appetite? Has management considered the full range of risks and their impacts? Are there any contingent risks left unaddressed?” asks Bloom.

Focus groups

It’s important for boards to be mindful about getting underneath what’s really going on, Bloom says. She recommends that boards request further activity as part of the risk assessment process, for example independently facilitated, staff focus groups designed to examine cultural features that might support or cause an environment conducive to sexual harassment.

When an issue emerges

Ming Long GAICD, a director of AMP Capital Funds Management and a member of the board of the Diversity Council of Australia, says that one question she has reflected on is: how would we have responded if a complaint similar to the one made by women against US gymnastics team doctor

Dr Larry Nassar had been made in an organisation?

“What procedures would we have executed, how would we have treated the girls, would we have looked after them, and how would we have handled it with the media and public?” asks Long. “Our response to this goes to the heart of the wellbeing of our employees and the reputation and enduring value of our organisation.

“Work health and safety laws require organisations to ensure that workers are physically and mentally safe,” she says.

“One way directors can start dealing with this is by asking questions — either through their work health and safety or through human resources reports — about the number of complaints of bullying and harassment, which may be indicators of problems with the culture within an organisation or in certain teams.”

Long says employee surveys or turnover statistics may give indications of problems with culture, but sometimes information is opaque.

“It is important to understand whether an organisation’s standard practices or procedures via human resources, legal or communications have been crafted to be a disincentive for employees making complaints like #MeToo,” he says. “Many organisations also have employee assistance programs (EAP) and there may be a need to relaunch these programs to ensure employees have an ability to make a complaint without necessarily involving human resources, which has been seen as a company advocate rather than an employee advocate.”

Directors also need to be mindful of the unequal power dynamic that can be at play within an organisation, says Long.

Executive responsibility

Dr David Cooke GAICD says boards may well set the tone and issue directives but the real work must be done at the executive level.

“The importance that the CEO places on creating a safe workplace, free of sexual harassment, is paramount and true leadership must be publicly demonstrated. However, it is inadequate if the standards being espoused are not driven through every level of management, and understood and practised by all employees, contractors and other stakeholder groups.

“Every aspect of ensuring equality, equity and fairness, for any group experiencing discrimination, is important. However, when it comes to sexual harassment, it needs to be amongst our highest priorities.

“I sincerely hope, however, that this focus is driven by a determination to eliminate abuse because it is completely wrong and totally unacceptable, not simply because of some reputational risk mitigation strategy,” adds Cooke.

Time for Leadership Action

The #MeToo movement is a game changer for three reasons, says Sex Discrimination Commissioner Kate Jenkins GAICD, but real progress will depend on the actions of business leaders.

1. Exposing the true prevalence of sexual harassment

The definition of sexual harassment has largely remained the same since its introduction in the Sex Discrimination Act 1984 (Cth). Quite simply, it’s unwelcome conduct of a sexual nature that is reasonably likely to offend, humiliate and intimidate. Yet somehow, assumptions have been made over time that unlawful sexual harassment equates to criminal sexual assault or stalking, and that everyday kinds of sexual harassment — innuendo, inappropriate emails and text messages, practical jokes and flirting — is acceptable.

Research shows that sexual harassment is far too common in our workplaces. A 2012 survey by the Australian Human Rights Commission found that one in four women had been sexually harassed at work in the past five years and studies have confirmed that most incidents go unreported.

Movements like #MeToo and #TimesUp have highlighted the magnitude of the problem, started conversations and given strength to many to share their personal experiences.

2. Highlighting the harm and cost of harassment

The movement has also highlighted the harm and cost of sexual harassment. It can affect the mental and physical health of victims, who are often prevented from reaching their full potential. Sexual harassment, and how it’s dealt with, can lead to lower employee morale, absenteeism and high staff turnover. It can also have a devastating impact on business reputation.

Over time, sexual harassment has become a workplace hurdle that women need to negotiate if they wish to succeed and advance their careers. Women have learnt to steer clear of situations where they might be at risk, and avoid people who might be potential harassers, which affects their access to mentoring, networking, sponsorship and social interaction with colleagues.

The ability to work in a safe environment, free from sexual assault or harassment, is a basic human right. These are all issues that employers cannot afford to ignore.

3. Explaining the silence of victims

Remembering that the laws prohibiting sexual harassment in the workplace were introduced more than 30 years ago, it is sobering to learn that many victims have endured this behaviour in silence.

Research tells us that the reasons people do not report their experiences of sexual harassment include:

• fear of not being believed;
• fear of negative consequences for their career;
• fear that it will harm their reputation;
• believing it is not serious enough to report;
• believing that reporting would make no difference;
• not wanting to hurt the offender or get them into trouble; and
• because the alleged offender was senior.

These fears are not without foundation. Research tells us that many people who do report harassment have terrible experiences, earning labels such as “troublemaker” or being ostracised, victimised or ignored by colleagues.

While there is much discussion about the need for women to feel safer to speak up, there is an even stronger need for leadership. A system that relies on the bravery of individuals to come forward will not work to prevent sexual harassment.

Board leadership can make a difference by setting the tone in organisations and demanding more from leadership teams and staff.

As Australia’s Sex Discrimination Commissioner, and someone who has been involved with sexual harassment litigation for more than 20 years, I see the main drivers as being attitudinal and systemic failures.

The 2013 National Community Attitudes Towards Violence Against Women survey found that:

• more than one in four people thought that men make better political leaders than women;
• almost one in five people thought that men should take control in relationships and be head of the household; and
• more than one in 10 people thought that women who are sexually harassed should sort it out themselves.

These attitudes are also common reasons why bystanders do not call out sexual harassment.

Workplaces are key to shifting these attitudes. All employers, regardless of size, are liable for sexual harassment unless they can show they have taken reasonable steps to prevent sexual harassment.

Policies, training and complaints procedures delivered by human resources have not prevented sexual harassment or been effective in addressing breaches.

Organisations need to better understand the prevalence and nature of sexual harassment in their workplace; leaders and staff must be committed to eliminating harassment; and workplaces must tailor prevention initiatives to change culture and attitudes, as well as facilitate effective responses to breaches.