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Written Testimony of David G. Bowman, Partner, Morgan, Lewis & Bockius

Meeting of October 31, 2018 - Revamping Workplace Culture to Prevent Harassment

Good morning and thank you to the Commission for inviting me here today. I am pleased to appear before you. My name is David Bowman and I am a partner at the law firm of Morgan, Lewis & Bockius where my practice largely focuses on diversity consulting, independent investigations, and workplace training programs. I am here today to address the importance of culture assessments and trainings in order to combat workplace harassment and discrimination.

Creating A Safe and Respectful Culture

For decades, employers have prohibited harassment in the workplace and have had anti-harassment policies in place. In addition to policies, employers have provided regular training programs for managers and employees. With the emergence of the #MeToo movement, however, it became apparent that many of those policies have been ineffective in many, but not all cases. What is also clear from the #MeToo movement, is that neither victims nor witnesses (commonly referred to as "bystanders" or "upstanders") of harassment have felt comfortable coming forward to report misconduct. To create a culture of compliance, in which employees feel safe reporting misconduct, it is vital for organizations to engage in a multi-faceted campaign, focusing on (1) organizational leaders setting the right tone from the top and demonstrating integrity, (2) developing policies and practices that align with the organization's cultural goals, (3) increasing diversity within the workplace at all organizational levels through hiring and promotions, (4) conducting trainings to convey cultural expectations and requirements, and (5) implementing systems and engaging in communications that emphasize the importance of reporting bad behaviors and that hold bad actors accountable consistently.

The Role of Culture Assessments

During our ongoing culture assessments and diversity initiatives, we have experienced an increased focus on the types of issues raised by the #MeToo movement. Indeed, in the wake of #MeToo and in conjunction with organizational campaigns to create workplaces free from harassment and discrimination, routine culture assessments are increasingly becoming a best practice for employers. While in the past, the burden rested on employees to complain and reveal workplace misconduct, today, some employers are taking more proactive steps to identify issues. By investigating what happens "on the ground" in the workplace, employers are able to identify potential risks and develop concrete solutions that promote an inclusive, harassment-free work environment. For example, culture assessments can reveal whether employees feel safe reporting harassment without retaliation or have confidence in an organization's ability and will to promptly investigate concerns. Cultural assessments also help employers identify high-risk teams and behavior trends (e.g., alcohol consumption, off-premises conduct, etc.). Assessments may also be used in response to a prior incident or allegation, but not as a substitute for an investigation.

Conducting A Culture Assessment

When initiating a culture assessment, we first identify the organization's goal(s) for the assessment and any specific issue(s) that the organization seeks to address through the assessment. We then develop a set of interview questions, focusing on the identified goal(s) and issue(s). For example, if an organization wants to learn whether women face discrimination or harassment at work, the interview questions might focus on whether employees feel that implicit biases affect hiring, promotion, or compensation opportunities, whether employees have faced harassment or various forms of discrimination at work, and whether and how they would report these issues within the organization. While many organizations have primarily focused on sexual harassment issues in the wake of #MeToo, we encourage organizations to strongly consider looking at diversity issues as a whole. Not only do broader questions regarding diversity and inclusion solicit constructive feedback from individuals of all protected classes, but by showing that anyone can be a victim of harassment or discrimination, these discussions create empathy, which in turn, creates behavioral change.

After a set of questions is developed, employees at all levels of an organization are then asked these questions in one-on-one interviews and/or focus groups. To ensure that participants feel comfortable being candid, and to be able to attribute specific findings to discrete parts of an organization, focus groups should generally include individuals within the same business unit, tenure, role, gender, and any other relevant metrics. Analysis of the data gathered during the interviews and focus groups yields key themes and other specific areas of concern or vulnerability. Based on these themes and findings, the assessment concludes with recommendations designed to remediate organizational problems that are informed by its findings.

Individual interviews are generally used for senior leaders of a business unit. This is done to create a safer environment in which leaders can talk without concern that they may disclose something that should remain confidential. Additionally, we intentionally remove senior leaders from more junior focus groups so that the presence of the senior leader does not inhibit any participant's willingness to share. Focus groups are generally used to promote efficiency and increase the number of employee opinions that inform that data.

It is important to note that additional compliance concerns other than discrimination, or harassment allegations may arise in the course of an assessment. In order to respond to these concerns, it is important that investigators are trained, before beginning the assessment, to recognize these issues, report them to the appropriate internal channels, and remove them from the purview of the assessment. It is important that companies take prompt corrective action in response to identified problems uncovered during an assessment.

Sample Themes and Recommendations Post-#MeToo

Culture assessments conducted since the #MeToo movement began have produced many themes, including the following:

  1. Most employees do not have good information about procedures for reporting harassment or other workplace issues;
  2. Employees are afraid of retaliation or retribution for raising issues;
  3. Men are worried that companies are "pulling the trigger too quickly," while women fear potential unintended consequences of the #MeToo movement (e.g., senior male leaders not engaging in the mentoring and development of women for fear of sexual harassment claims); and
  4. Relationships in the workplace involving the significant imbalances in power (superior/subordinate relationships) cannot be truly consensual.

There are many recommendations that we have offered employers in response to the themes reported throughout assessments. First, it is important that organizations create a healthy top-down culture, where managers and leaders actively support the prospect of creating a healthier work environment. Having managers and leaders demonstrate their dedication to correcting workplace harassment issues and promoting diversity and inclusion efforts is a highly effective way to modify and improve an organization's overall culture. Leaders can "set the tone" for organizational culture through proactive, individualized messaging, and should seek opportunities to discuss, both in person and in writing, the importance of creating a safe and respectful work environment. Organizations should also seek to increase the presence of executive leadership who demonstrate their commitment to workplace culture, by physically integrating them into the workspaces and work lives of employees.

Additionally, we often recommend personnel changes; new hiring, review, and promotion criteria and systems; alternate reporting channels; and training. Recommendations relating to personnel changes are generally focused on supporting the advancement of diverse employees into leadership positions and increasing HR staffing, training, and visibility throughout organizations, with support from organizational leaders. Changes to hiring and promotional criteria are aimed at reducing the effects of implicit (and sometimes explicit) biases and addressing imbalances in power that might perpetuate bad behaviors. Additionally, in order to encourage reports of sexual harassment, companies have begun using non-traditional forms of reporting. For example, escrow policies allow allegations to be "banked" until two or more victims allege wrongdoing by the same perpetrator. Phone apps and web platforms may encourage more victims to speak up, and the accessibility of this reporting option may deter potential perpetrators. Companies are also using other tools to encourage reporting, which are: (1) waiving previously enforced non-disclosure agreements of employees who reported sexual harassment; (2) encouraging employees to sign an anti-harassment pledge; (3) eliminating forced confidential arbitration for employees who make sexual harassment claims, in an effort to not force silence from victims; and (4) making the company's sexual harassment policy public, to increase corporate accountability.

The Role of Training in Creating a Culture of Compliance

While cultural assessments are critical for an organization to get a pulse on the health and culture within the workplace, companies must also develop tools and resources to empower their workforce on a go-forward basis. One such tool is a robust and tailored training program to educate and empower its workforce.

I. Purpose of Training

When training is centered solely on informing employees about policies and strictly prohibited conduct, employees oftentimes fail to grasp the importance of creating a harassment-free culture. Such training lacks the engagement necessary to instill positive cultural values throughout a workforce. This is especially true when harassment training is not supported by an organization's leaders. In conducting engaging training sessions where managers and leaders are involved in conveying the importance of the messages at hand, it becomes more likely that a culture will shift and employees will modify their behavior in a positive manner.

It is critical that training is practical and tailored to the particular work environment. While well-intentioned, training that is outdated or doesn't focus on the everyday slights and gray areas fails to address the most commonly experienced forms of harassment that, if unaddressed, may grow in frequency and severity to become highly offensive and disrespectful behavior. At its best, harassment training has the opportunity to educate and prepare employees for how to identify and address disrespectful behavior to create a safe and inclusive workplace.

To be successful, workplace training should not aim just to inform employees what conduct is prohibited from a legal or compliance perspective. Rather, its goal should be to inspire the audience to appreciate that they control the culture of their workplace and they can have affirmative steps to build a positive environment. An inspired audience will be excited and empowered to use the tools and resources from the training to build a better culture for themselves and their team members.

Finally, for training to be effective in creating a lasting impact on the culture at a company, it must be a piece of a larger program of change that speaks to multiple drivers within the organization. Training should be supported by well-written policies, equality-based initiatives, diversity and inclusion activities, and an impactful and responsive human capital team. Such a well-rounded program communicates to employees that training is just one tool that the company utilizes to create a safe and respectful workplace.

II. Designing an Effective Training

There are various tools that trainers can build into a training to leave the audience equipped to identify and address disrespectful behavior that they experience in the workplace. The training should address realistic scenarios and provide memorable lessons and tools for the audience to put into practice in the workplace.

First, training should provide the audience with a useful and practical framework to identify disrespectful conduct and understand the impact that such conduct has on the morale of the workforce. It is important that the training focus on the subtle, everyday misconduct that negatively impacts the organization's culture.

Second, to provide a practical framework for action, the training should walk through the potential roles that come into play when harassment takes place. For example, training provides the opportunity to help employees understand how they can best capitalize on their role as a bystander to address disrespectful behavior in the moment, reassure victims of harassment that such conduct was inappropriate and not tolerated, and foster a culture of compliance by reporting the behavior to management. Additionally, training is an effective way to educate management about their unique obligations to report harassing conduct and instill a compliant culture from the top down.

Third, training provides a productive forum to create transparency regarding the complaint process. More often than not, employees do not report harassment that they experience or witness because they are afraid of the consequences for themselves, as well as the individual who engaged in the misconduct. Some methods of encouraging reporting include waiving previously executed non-disclosure agreements, encouraging employees to sign anti-harassment pledges, emphasizing that retaliation for reporting harassment will not be tolerated, and making harassment policies available to the public, in an effort to add corporate accountability. Training provides an opportunity to discuss the role of the human resources team in investigating misconduct and scaling corrective action to appropriately address the misconduct identified. Further, employees will be instructed how early corrective action-including verbal warnings and coaching-can prevent future misconduct and address their team member's behavior before it escalates to a point where that individual might lose his or her job.

Fourth, training can focus the learners on the common pitfalls or mistakes that lead even well-intentioned employees to engage in misconduct. For example, employees often fail to grasp when and how company policies apply to off-premises conduct. Similarly, employees often mistakenly assume that where inappropriate conduct is welcomed or consented to-such as with inappropriate humor or conduct that is mutually engaged in among employees-that misconduct is somehow excused from the scope of the policy. Finally, training has the opportunity to clarify the roles that the actor's intent and the audience's perception play in identifying where conduct crosses the line.

III. Delivery

When conducting training, it is important that employees are not just engaged, but that they remember the messages conveyed long after the training is completed. One method to combat retention issues is to have less-formal follow-up sessions at scheduled intervals. Such "refresher trainings" are most helpful when the initial sessions are engaging and held with a positive tone, as memory recall serves best when the event was engaging and interactive.

While live training consistently provides for an optimal learning experience for the audience, there are benefits to engaging in different types of delivery. Live sessions allow for more individual engagement and provide the opportunity to involve participants and utilize different learning tools and paces, depending on the audience. Further, live training allows for tailoring of a training session to the issues most pertinent to the individual learners and can respond to any questions real-time. While these opportunities do not exist to the same extent for online training, online training does offer some advantages. Online training allows greater accessibility and can be used to reach a broader group of employees than live training allows. It also guarantees consistency in content and messaging. Given the varying benefits, we recommend alternating between live and online training sessions. Online sessions can also serve as follow-ups to live training, in attempting to improve recall, reinforce positive workplace actions, and address any changes in policy or law.

In delivering effectively, it is important that presenters are practiced at communicating with their audience through discussion. Presentation tools such as PowerPoint can often detract from the engagement of a training session and are too often used as a crutch for presenters. Such presentation tools do offer the benefit of effectively displaying technical information and information graphics, but their use should be limited to allow for open and cooperative discussions when the content is more behavioral focused, such as harassment training. The facilitator should also frame the sessions in a positive light. Skilled presenters will be able to generate excitement and positivity throughout. The tactful use of humor can also foster audience engagement and diminish the stress and anxiety that often coincides with harassment and discrimination concerns.

When conducting training, it is important to understand that adult learning is unique in several ways. Adults are shown to learn best when training is self-directed to some extent, opportunities for reflection and discussion are provided, personal experiences are shared and discussed, and an overarching purpose for training is defined at the outset. With this information in mind, presenters can outline training plans in accordance with methods that work well for adults. This process maximizes the critical reflection that is needed for training to have an impact on employees' daily decisions.

Finally, considerations such as the gender or ethnicity of a presenter should only rarely be considered when evaluating trainers. Strong trainers are versatile in their style and account for varying issues, cultures, and demographics when training. Additionally, strong trainers are engaging and have a mastery of not only the content, but skills in how to deliver the content.

Closing Remarks

Thank you for your time today and for the opportunity to be part of the effort to understand, prevent, and stop harassment in the workplace. I welcome any questions that you have.

David G. Bowman, Partner, Morgan Lewis, Labor & Employment
Mary Grace Patterson, Associate, Morgan Lewis, Labor & Employment
Margaret M. McDowell, Associate, Morgan Lewis, Labor & Employment
Sarah Butson, Law Clerk, Morgan Lewis, Labor & Employment