As the #MeToo movement continues to ripple across the country, more women are publicly telling their stories of sexual assault and harassment. The movement has focused on incidents in the workplace, which leaves executives and human resource managers rethinking policy to protect their employees from mistreatment – and themselves from liability.
In March 2017, U.S. Equestrian Federation made a move toward tackling the problem for equestrian athletes when it announced its participation in the U.S. Center for SafeSport, a new initiative to protect competitors and encourage abuse prevention. The Center for SafeSport operates as an independent authority for U.S. Olympic and Paralympic governing bodies to investigate allegations of sexual assault or harassment against athletes. The center also provides education and outreach to all sports organizations. USEF's new policy will route harassment complaints through the Center for SafeSport, require its designated officials to undergo awareness training every two years, and will complete criminal background checks every two years on key professionals like coaches and veterinarians.
For the moment, the Center for SafeSport is restricting its reporting and investigation activities to governing organizations for Olympic and Paralympic sports. Center for SafeSport spokeswoman Kate Brannen pointed out the U.S. House and Senate recently passed legislation requiring amateur athletic organizations, including collegiate teams and local recreational leagues, to use the Center as a resource for policies and procedures to prevent abuse of athletes.
Where does that leave racing?
“Regardless of industry, as long as you have people, you're going to have the potential for harassment, so everybody really needs a good policy,” said Brian Simmons, senior business consultant at CMI Human Resource Consulting in Lexington, Ky.
Which means it's a good time to dust off the old employee handbook.
What's the problem?
Although the Center for SafeSport is not prepared to take on consulting work for a racing stable or serve as a third-party reporting service yet, there are HR firms and lawyers who will.
Beverly Clemons, president of CMI Human Resource Consulting said it's not uncommon in her experience to find equine industry employers somewhat ill-prepared in this department. Many experience high turnover or might have such a small number of full-time employees that they haven't given much thought to formal human resources policies in general, let alone sexual harassment policy.
The first step in building such a policy is defining what constitutes ‘sexual harassment' in a company policy. Perhaps surprisingly, Clemons and Simmons say the formal definition harkens back to the concept of harassment generally and is considered by HR professionals to be in the same vein as racial discrimination or ageism.
“One of the things people don't seem to realize about harassment is it is a type of discrimination,” said Simmons. “It's defined as unwelcome conduct that's based on being treated differently due to a protected class — the protected classes of race, color, religion, sex, national origin, age, disability, genetic information, things like that. Sexual harassment is derived from gender harassment.”
According to a report published by the Equal Employment Opportunity Commission in 2016, there are subtypes of gender harassment, including unwanted sexual attention, sexual coercion, and gender harassment (the latter of which is aimed to insult and reject a group of people, usually without sexual interest). The EEOC places the determination of whether the attention is desired on the victim, rather than the alleged harasser.
Why should employers care?
Besides being an ethical consideration, an employer who allows sexual harassment to continue in the workplace leaves themselves open to a world of legal hurt. Simmons said sexual harassment in a professional setting could result in sanctions from the EEOC, state or local human rights commissions, or even the Occupational Safety and Health Administration. Civil litigation is also possible from the victim.
Then, there are the intangible consequences.
“What does that accusation do to the image, the morale of the organization?” said Simmons. “There are the hits to productivity, the attitudes of employees, the loss of teamwork, the things beyond a monetary penalty. It's all of those other, indirect costs that really hurt businesses when we talk about harassment.”
And that's assuming word of the alleged harassment doesn't end up in the media.
The EEOC report found these considerations become amplified the higher up the company's hierarchy the alleged harasser is stationed.
For racing industry employers who assume their business is exempt from the problem of harassment, Simmons says: You're probably wrong. The same EEOC report estimated somewhere between 25 percent to 85 percent of women have experienced sexual harassment at work (the number varied depending upon how they were surveyed and what parameters were given to define the term). An estimated 70 percent of cases go unreported. Victims may be afraid they won't be believed, worried they'll be blamed for the incident, or concerned about retaliation from their alleged harasser or their superiors for reporting.
Simmons believes historically male-dominated businesses like racing might be at greater risk than other industries for issues with sexual harassment. The EEOC task force report laid out a list of risk factors gathered from academic and professional sources, which are likely to increase the risk for harassment. The list includes: lack of diversity in the workforce, workplaces where a limited number of employees come from a different demographic from everyone else, cultural/language barriers, a young workforce, workplaces with “high value employees” or significant power disparities, social discord in society at large, customer service-oriented businesses, businesses with monotonous work, isolated workspaces, cultures that tolerate alcohol consumption, and decentralized organization.
What should a good policy accomplish?
Besides defining sexual harassment for the purposes of that company, Simmons and Clemons say a good sexual harassment policy should include instructions for employees to report harassment, with more than one specific individual designated. It may be appropriate to leave this somewhat open by naming a handful of people and saying ‘or another member of department management,' to increase the chances this will include someone the victim knows well.
One of the biggest fears that keeps victims from reporting sexual harassment is the worry the company won't do anything about it. A good written policy should make it clear the company takes accusations seriously and will launch an investigation. It should also include a whistleblower policy stating those who report such behavior should not be subject to retaliation.
The policy shouldn't spell out exactly how accusations will be investigated, however. Clemons and Simmons say many cases are not a result of an employee maliciously seeking victims to harass, but outlining each step of a potential investigation would give a calculated aggressor the chance to cover his or her tracks.
It's critical that a third party be appointed to look into allegations of harassment. Some attorneys offer this service as do HR consultants, though Clemons advises employers to inquire about a firm's experience in this area before engaging one. That third party should also come in without a presumption of guilt toward the accused harasser.
“There has to be a balance with the rush to judgment,” said Simmons, recalling a particularly devastating case in which a man lost his job but his accuser later admitted their report was false. “This person was ostracized and penalized just based on allegations alone. We see that a lot of times where people will rush to judgment without doing a proper investigation.
“A lot of impact is being felt beyond the initial allegation,” agreed Clemons. “We've seen suicides, we've seen careers destroyed, families destroyed. That's also going to trickle into the workplace.”
More than a policy
The most important thing about a sexual harassment policy is that it shouldn't begin and end with the company's game plan in the event of a complaint. It should be part of a schedule of awareness training and an employer-driven culture. Lower level employees should receive training as soon after beginning work as possible, and managers should also be given instructions on how to handle complaints and what to do if they see something inappropriate take place. Clemons acknowledges this can be tough in high turnover businesses, but it has to be done.
“Many times, what we see companies do is they have a situation like this and they realize, ‘Oh gosh, we have not trained our employees or our managers on this subject thoroughly. We've kind of let that slide by thinking that people can be adults and use common sense,'” said Clemons. “Brian and I have talked about this a lot – things that have been ‘acceptable' in the workplace now aren't acceptable. Then it was allowed and people turned their eyes away. Too much awareness has been brought to this. They key is: you could be next. That's what we're telling our clients is, we're trying to keep you in the know but not in the news.”
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