2018-2-24 HR in the Wake of Weinstein, FINALMar 28, 2018 · Source: American Management Association Survey of 3,247 Executives, Managers, and Professionals, December 2017, as reported

Copyright © 2018 by Strategic Labor & Human Resources, LLC. All rights reserved. Not for quotation,

duplication, distribution or attribution without the express permission of the author.

HR in the Wake of the Weinstein Sex Scandal

LERA of Southeastern MichiganMarch 28, 2018

Presented byRobert Chiaravalli, Esq.

Strategic Labor & Human Resourceswww.HRStrategy.biz

This information is general in nature and should not be construed as legal advice, nor the formation of a lawyer/client

relationship. Persons are encouraged to seek independent counsel for advice regarding their individual legal concerns.

#MeToo Ubiquitous

Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.

Ford tackled a factory harassment culture before. Why is it still happening?Dec 22, 2017 6:40 pm

EST PBS Newshour

RBG – Sundance 2018

THE SALT

Allegations Against

Celebrity Chefs

Reveal Abuse In

The Restaurant

Industry

Under cover of darkness, female janitors face rape and assault

#MeToo Brief History


Date What

20-JanWomens March

8-FebAnd yet she persisted

19-Feb Former Uber engineer Susan Fowler publishes a blog

19-Apr Fox fires Bill O'Rielly

15-Aug Taylor Swift wins suit against DJ who grabbed her butt

14-SepThree women file class action against Google for pay discrimination

19-Sep Ellen Pao v Kleiner Perkins

5-OctNY Times reports Weinstein

16-OctAlyssa Milano starts #MeToo on facebook18-OctAmazon's Roy Price Resigns

9-NovKeven Spacey replaced

10-Nov Louis CK alleged

16-NovAl Franken accused

21-NovRoy Moore defended by Trump

29-NovGarrison Keillor fired

29-NovMatt Lauer fired

4-DecWomen in film hotline established

6-Dec The Silence Broken by Time

Incidence of Harassment by Type

0 20 40 60 80 100

Sexual Assault

Unwanted Genital Flashing

Being Physically Followed

Cybersexual Harassment

Unwelcomed Sexual Touching

Verbal Sexual Harassment

Men

Women

Source: Stop Street Harassment, as reported in NPR February 21, 2018.

First Experience of Harassment

0 5 10 15 20 25 30

Don't Recall

> 40 years

31 to 40 years

23 to 30 years

18 to 22 years

14 to 17 years

11 to 13 years

6 to 10 years

0 to 5 years

Men

Women

Source: Stop Street Harassment, as reported in NPR February 21, 2018.

#MeToo Movement

Source: American Management Association Survey of 3,247 Executives, Managers, and Professionals, December 2017, as reported in WSJ, January 25, 2018.

Percent of People Who Have Been Direct Victim of Sexual Harassment At Work

12

51

0 10 20 30 40 50 60

Men

Women

Direct Victim in the Work Place

#MeToo Movement

38

51

0 10 20 30 40 50 60

Men

Women

Witnessed Harassment


Percent of People Who Witnessed Sexual Harassment At Work

#MeToo Movement

12

24

0 5 10 15 20 25 30

Men

Women

Uncomfortable Reporting


Percent of People Uncomfortable to Report Sexual Harassment

At Work

SHRM 2018


#MeToo Movement

0 10 20 30 40 50 60

Shame or Shared Blame

Fear of Retribution

Won't Result in Any Action

Avoid Creating a Fuss

Reasons for Not Reporting by Percent

Source: Fairygodboss survey, November 2017, as reported in WSJ, January 25, 2018.

Project XX


#MeToo Automotive


The Project XX Automotive News

Oct. 23 autonews.com/projectxx.

Survey of 900 women conducted

In collaboration with Stanford

Corporate America is clean as a

whistle on all of this. It’s the

entertainment industry, politics,

publishing, and all these people who

thought they could live by different

rules,” Lutz said.

Interview with Cynthia Canty and Bob

Lutz Dec 6, 2017 – Stateside on

Michigan Public Radio

Project XX


Project XX


Project XX


Project XX


Ford


Chicago Ford Plants Subject of Report Claiming Widespread Sexual Harassment – Autoguide.com Dec 21, 2017

Published by the NYT on Tuesday, the report serves as an in-depth investigation into the culture at Ford’s Chicago Assembly and Chicago Stamping plants. Unfortunately, the accusations are nothing new for the facilities, with Ford reaching a $10-million settlement with the Equal Employment Opportunity Commission in August relating to sexual and racial harassment at the two Chicago sites. A number of lawsuits also led to a $22-million settlement in the 1990s following another EEOC investigation into the culture at the manufacturing sites.Ford tackled a factory harassment culture before. Why is it still happening?Dec 22, 2017 6:40 pm

EST PBS Newshour

Three women tell harrowing stories of sexual harassment at Ford Chicago plantsBUSINESS 02/20/2018, 03:05pm Chicago

Sun Times

How Tough Is It to Change a Culture of Harassment? Ask Women at Ford - Decades after the company tried to tackle sexual misconduct at two Chicago plants,

continued abuse raises questions about the possibility of change.

By SUSAN CHIRA and CATRIN EINHORN Photographs by ALYSSA SCHUKAR DEC. 19, 2017

Where Labor Hurts


Women at Mitsubishi Say Union Fell Short on Sexual HarassmentByRochelle Sharpe Staff Reporter of The Wall Street Journal

Updated July 10, 1996 12:01 a.m. ETNORMAL, Ill. -- Feeling tormented by sexual harassment, women at

Mitsubishi's auto plant here pleaded with their union for help.

But many became disillusioned with the United Auto Workers, complaining that the union often ignored their claims.

Terry Paz, for instance, told the UAW local five years ago that a co-worker

had grabbed her breasts, wiggled his tongue at her and asked what sex

positions she liked best. But she couldn't get the union to file a grievance

against the company for allowing a hostile work environment.

After she hired a lawyer and filed charges with the Equal Employment

Opportunity Commission, the company fired the man. Only then did the union file a formal grievance. It was on behalf of the co-worker, trying to get him his job back.

Where Labor Helps

“¡YA BASTA!”

Tipping Point

� Evolution: from unaware, to aware, to commitment to change, to legal prohibitions, to enforcement, to culture change

� SCOTUS

� Expanded protections:

� Meritor ‘86, Anita Hill ‘91,Harris ’93, Oncale ’98

� Diminished protections

� Faragher-Ellerth ’98, Vance ’13

� #MeToo Movement


Stakeholders

� Employers

� Employees

� Unions

� Schools

� Hospitals

� Patients

� Visitors

� Vendors

� Regulatory Agencies

� Courts

� Media

� Investors

� Military

Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without

the express permission of the author.

Retaliation

� Companies may not retaliate against employees who

� Are alleged or actual victims

�Make a claim

�Oppose illegal activity

� Exercise a legal right

� Refuse of violate the law

�Whistleblow

� Assist in an investigation


� Show #That’s Harassment Video Clip


Company Duty

� In most cases, develop a written policy

� Encourage reporting

� Prompt and thorough investigation

� Prompt remedial action


HR’s Compliance Duty

� Policy

� Procedure

� Licensing Standards of Behavior

� Regulatory or Governmental Standards

� Law


Is There a New Role for HR?

� Is HR an advocate?

� Is HR a neutral?

� Is HR an investigator?

� At what level of the organization are HR roles?

� Is HR a policy maker?

� Is HR a risk manager?


Trends

� Suffer in silence

� Denial of inappropriate or illegal conduct

� Harmless work place joking

� Part of the job

� Stereotypes


Trends

LGBTQIA

� Identify Pitfalls Involving Transgender Transitioning

� Determine the Difference Between Sexual Harassment, Discrimination, and Stereotyping

� Ensure Compliance with the Duty of Confidentiality

� Appropriate LGBTQIA-related training


Trends

� Harassment by EMOJI

� Traditional evidentiary standard of review for hostile work environment to a non-traditional trend

� Severity

� Pervasiveness

� Unwelcomed

� Emoji’s are a fast growing language

� Ninety-two percent of worldwide mobile messages during 2016

� Seventy-one percent of texts/messages in USA

Source: Polls by Harris 2017 and Emogi Technologies 2016, as reported in Workforce, January/February 2018.

Trends

� Separation Agreements

� Confidentiality

� Non-disparagement

� Statutory approach to limiting concealment via separation agreements

� Challenge on mandatory arbitration agreements


Impact of Our Conduct

Non-Compliance

� People Feel Disrespect

� Employee Distrust and Disengagement

� Lessened Public Distrust

� Lessened Safety and Security

� High Litigation Cost

Compliance

� People Feel Respect

� Employee Trust and Engagement

� Enhanced Public Trust

� Enhanced Safety and Security

� Low Litigation Cost


Predictive Indicators

� Homogenous workforces

� Age distribution of employees

� Isolated locations

� Cultural/Language differences

� Work places that rely on customer service or client satisfaction

� Decentralized work places

� Monotonous or low intensity tasks


Risk Management

� Eliminate or Reduce Non-Compliance

� Develop Effective Policies and Practices

� Train

� Ensure Proper Documentation and Record Keeping

� Remediate Non-compliance Timely

� Use Friendly and Professional Approaches

� Perform Regular Periodic Reviews and Audits

� Work Closely with Compliance Office

� Read and Understand The Company Plan Compliance Policy

� When in Doubt Ask

� Use formal and informal indicators

� Assume Higher Levels of Scrutiny


Investigation Considerations

� Who should do the investigation?

� What is the investigative strategy?

� Internal

� External

�Due process

�Completeness

� How should the investigation be done?

� What is the investigative authority?

� How do you treat confidentiality

�Right to know

�Need to know

� Issues of defamation


Ineffective Training

� Efficacy Under-Researched

� Not Mandatory

� Largely focused on legal compliance and litigation avoidance

� Does not focus on moral or principled approaches

� Legal avoidance’s unintended result is isolation and not inclusion

Elzabeth Tippett, “Harassment Trainings: A Content Analysis,” Berkeley Journal of Employment & Labor Law, forthcoming 2018. EEOC Select Task Force on the Study of Harassment in the Workplace – June 2016

Initiatives: Overview

� Work place harassment is persistent

� Work place harassment is often unreported

� Preventing harassment benefits

� People

� Business

� Creativity and innovation are important for prevention

� Leadership and accountability are important for prevention


Initiatives: Strategic OD

� Organizational design and development

� Values

�Magna Charter

� Toyota Respect for Humanity

� Leadership

� Training

� Succession

� Role definition and autonomy

� Will HR take the lead or some other function?Copyright © 2018 by Strategic Labor & Human Resources, LLC, All rights reserved. Not for quotation, duplication, distribution or attribution without the express permission of the author.

Initiatives: A Pledge

� “It’s On Us” pledge (borrowed from colleges/universities)

� Recognize that sexual harassment is not tolerated

� Identify how and when it can occur

� Intervene to prevent it

� Create an environment where is it unacceptable


Initiatives: EEOC

� Workplace risk factors evaluated

� Training is important, but the right training

� Compliance training needs to be effective

� Workplace Civility Training

� Bystander Intervention Training

� “It’s On US Campaign” could be effective


Initiatives: Training Principles

� Virtuous Business Principles as a core topic of training to eliminate sexual harassment

� Prudence – self discipline, reason & good judgment

� Justice – proper rules administered equitably

� Temperance – level-headedness, moderate responses

� Courage – overcome fear to follow the moral path

� “Bystander” Interventions and “workplace civility”

� Unconscious bias

� Anti-retaliation

� Innovate and evaluate different approaches

� Curriculum Design based on

� Cause and frequency

� Agents with high propensity to harass

� Role reversal sensitivity

� Authentic content


Initiatives: Independent Investigators

� Ombudsmandry

� Hotlines

� EAP

� JustUs


Initiatives: Better Checklists

� Leadership and accountability

� Holistic prevention efforts

� Anti-harassment policies

� Reporting and investigation procedures

� Training

� Risk Factors and Responsive Strategies

� Compliance and enforcement


Initiatives: Strategic Communications

� Multiple forms of communication (hint: ask your teenager)

� Persuasive and authentic messaging

� “Good for people” is more important than

� “Good for business”

� Litigation avoidance

� Productivity improvement


Initiatives: Specialized Board Committee

� The potential for closure of Weinstein Company is a central issue for the Board of Directors

� Specialized committees safeguard the company

� Strategy

� Diversity

� Compensation

� Ethics (think Sarbanes-Oxley)

�Why not sexual harassment?

� Board composition


Initiatives: Independent Review Boards

� UAW/Public Review Board – Since 1957

� “…insuring a continuation of the high moral and ethical standards in the administrative and operative practices of the International Union and its subordinate bodies….”


Initiatives: LMC

� Labor-Management Committees

� A topic with common interest

� Allows for voice of stakeholders

� Amenable to root cause analysis

� Durable commitments


Thank You

Robert Chiaravalli, Esq.

And

Kathy Chiaravalli

Strategic Labor & Human Resources, LLC

[email protected]

[email protected]

www.HRStrategy.biz

Documents

2018-2-24 HR in the Wake of Weinstein, FINALMar 28, 2018 · Source: American Management Association Survey of 3,247 Executives, Managers, and Professionals, December 2017, as reported