Sexual harassment witnesses are speaking out in greater numbers, but are they being heard?

In a recent talk on the future of harassment prevention, Jackson Lewis’ Samia Kirmani told an audience of HR professionals and compliance experts what she sees for the #MeToo movement’s future.

“#IHeard; #ISaw; #IWitnessed,” said Kirmani. “We wouldn’t be surprised if next we see and hear people speak out—not just the targets of harassment, but those who witnessed it.”

As #MeToo continues to spark a renewed interest in harassment prevention, her prediction raises two questions: are sexual harassment witnesses better empowered to speak out? And, what can HR and compliance professionals do to ensure witnesses are able to prevent repeat incidents?

Witnesses misconduct reporting is at an all-time high.

A recent survey from Bentley University researchers has in fact found an increase in employees who report witnessed misconduct; from 64 percent in 2013 to 69 percent in 2017 (70 percent of respondents cited sexual harassment as a “leading type” of misconduct).

This represents “a historic high,” according to the report’s authors.

And while this may seem like a victory for the #MeToo movement, the increase doesn’t appear to be substantially larger than prior years, and the report notes a “disturbing” corresponding trend: a steep rise in retaliation.

Retaliation against misconduct reporters is rising faster than reporting itself.

Rates of reported retaliation for disclosing misconduct—which authors of the Bentley University study say have been on the rise due to economic conditions—have doubled since 2013.

The authors described the finding as “troubling.”

“After nearly a quarter of a century studying employee perspectives of ethics in the workplace, ECI has shown that companies can curb the negative impact of external forces, such as the economy, by taking steps to strengthen their cultures. Yet, this report indicates the state of ethical cultures across the country remains unchanged. Unless organizations take action, it is our view that trouble may be ahead.”

Fear of retaliation is a top reason why both witnesses and victims don’t report sexual harassment. Such high rates of retaliation suggest that reporting misconduct may not be safer today than before #MeToo.

A review of 380 lawsuits from whistleblowers for alleged retaliation—conducted by Fraud Magazine—found that 74 percent of reporters were terminated, 15 percent were demoted, given poor evaluations, or harassed, 6 percent were suspended, and 5 percent were transferred.

“Retaliation is a real fear,” said Debra Katz, civil rights attorney and partner at the employment law firm, Katz, Marshall and Bank. ”Often what we hear [from witnesses] is ‘Don’t use my name in your letter but when an investigation comes up, I will come forward and say what I know.’”

Sexual harassment witnesses still face hurdles in reporting.

Workplace cultures that prevent harassment often share a sense of freedom in discussing the subject. If employees don’t feel comfortable publicly acknowledging the occurrence or possibility of harassment, it reduces sexual harassment witnesses’ incentive to intervene, and, of course, report.

Learn the latest research and best practices in harassment prevention.

Check out our webinar on the future of sexual harassment prevention with Samia Kirmani, Principal at leading employment law firm Jackson Lewis.

What’s more, discouraging bystander intervention creates an atmosphere that gives potential harassers opportunities for further abuse. This obviously lends a degree of urgency towards HR and compliance professionals, especially when the potential cost of witnesses coming forward is more severe than their silence can convey.

“At best [reporting harassment] does not make things worse,” said Mindy Bergman, an expert of industrial-organizational psychology at Texas A&M, in written testimony to an EEOC task force. “And at worst, [it] leads to retaliation, minimization of complaints, and additional injury to the reporter.”

Beyond this fear lies two additional roadblocks for sexual harassment witnesses: the social conditioning that leads witnesses to doubt the misconduct they see, and further obstructions awaiting in the legal system.

Social and psychological factors sometimes make misconduct seem normal.

Witnesses are subject to the bystander effect, a psychological phenomenon where third parties are less likely to help victims when an incident occurs with others around. When witnesses don’t call out the behavior, a frequent occurrence, it suggests to all that the behavior in question is tolerated.

Secondly, reporting has traditionally been more difficult for those who work in an environment that’s either male-dominated or subject to a highly masculine culture. In such workplaces, men often put down women as a method of relating to other men in the workplace—a dynamic that can be reinforced when it leads women who desire to be a part of the masculine, “high-status” group, to take part.

Witnesses face roadblocks to resolving sexual harassment complaints in the courts.

Employment lawyer Debra Katz described her experience in finding sexual harassment witnesses as “difficult.” Not only are they moved to silence by fear of retaliation and blacklisting, she said, they face significant legal roadblocks.

Essentially, to grant that person legal protection for speaking up, the EEOC is required to prove that the witness’ act of reporting constitutes a “protected activity.” But to do so, according to Katz, the EEOC has to “prove that the witness followed every step, and affirmatively opposed the harassment throughout the process.”

Even when witnesses pass that hurdle, they have to remain patient—and financially solvent—through a court battle that could take years.

There’s a number of clear steps HR and compliance professionals can take to ease fears of retaliation. Note, though, that the following steps won’t be able to overcome issues deriving from a hostile culture:

It’s too early to tell whether the full force of #MeToo will move the needle on retaliation and other factors that make reporting potentially devastating. Yet, there are a number of approaches and policies available that effectively remove the ability of abusive coworkers to imperil a workplace.