Today’s post is prompted by all of the recent activity and heightened awareness about sexual harassment, sexual assault, and disparate sexual treatment. Those of you who have followed this blog may know that, in my long career and as the principal of Business Excellence Solutions, I have worked in the field of conflict resolution as an attorney, mediator, arbitrator, organizational consultant and ombudsman since 1979. So, I am writing as a professional who has managed functions responsible for addressing sexual harassment concerns in a wide range of settings, including statewide law enforcement systems, large university campuses, corporate, and high-tech research and development settings. I’ve litigated these issues in court, directly investigated and supervised their investigation as an employee relations manager, and worked to help resolve these issues a mediator, and an organizational ombudsman. In these roles I have witnessed the evolution of how our society responds to sexual harassment and assault, and I want to share some perspectives.  Warning!  This is a long post.  No pretty pictures. No catchy marketing tools …

To any observer of the national zeitgeist, it’s clear that this area is now a major part of the national dialogue. It’s disappointing and distressing to me that so much work and commitment has gone into this area over the years in terms of enhancing legal protections, workplace awareness initiatives, and formal training, all with apparently limited effectiveness. As a society, it seems we find ourselves not much farther along in reducing the long-standing, abhorrent, and chronically destructive harassment behaviors that continue to confront American women – people who are simply seeking to perform their jobs, participate in society, or gain their education.

It is undeniable that American law in this area has evolved significantly over the span of my career. Landmark Supreme Court interpretations of civil rights laws have ostensibly enhanced statutory protections, prohibiting hostile work environments and protecting more individuals from sexually motivated harassment and intimidation. So why do we now see this phenomenon of women coming forward? Why is it that so many have remained silent, when court rulings and national legislation such as Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 have been put in place and reinforced by the courts? In the face what we are seeing, I think that we can only conclude that the phenomenon demonstrates that the system now in place fails to meet the true needs of victims of assault and harassment, and must inadvertently include barriers that inhibit victims from coming forward.

Indeed, in my view, while our current systems are intended to provide avenues for victims of harassment and assault survivors support, they all unwittingly include huge disincentives to the victim coming forward. Every compliance system now in place includes latent barriers. A major barrier is that the harassment victim or assault survivor coming forward must take gigantic, personal leap of faith, trusting that the system will respond to their concern in a meaningful, sensitive, and confidential way leading to effective results. Whether the issue stems from a workplace sexual harassment concern or a campus sexual assault, our current systems share a common attribute that they strip the victim or survivor of any choice in how to move the matter forward. This process-driven approach removes any sense of control over resolution and options from the victim or survivor and places it in the hands of an employer or campus administrator. The established law in this area requires a “prompt and thorough investigation” and meaningful resolution. But, meaningful to whom? The victim? I would say, often not. The usual standard is the generic “reasonable person,” which is invariably initially determined by the organization and potentially later by the court, and very typically not the victim.

The law requires employers and universities to have systems in place to respond to harassment and assault. And, by in large, these entities do a fine job in articulating anti-harassment policies and encouraging victims and survivors to come forward, with encouraging words about how “safe” it will be to use the system, and how sincerely committed they are to prohibiting harassment. However, in the final analysis, what is the primary concern of the university or the employer in these situations? Is it truly driven by what is in the best interest of the reporting survivor or victim? The cold, hard reality is that the number one consideration for any organization is how to minimize its own potential liability. True, this assessment can involve considering the rights and options of the “alleged” victim. But, it also includes an assessment of the liabilities potentially created when action is taken against an alleged perpetrator, and all of this measured against a remote, third party standard, and often based on vague and illusive facts. From the campus or employer perspective it seems responsible and appropriate to consider all interests and balance them to minimize the odds of a claim against them.

When viewed from the perspective of a victim or survivor, all too often the perception is that they were induced to report their concern trusting that the organization would protect them and resolve the issue, but discovered that the organization truly only cared about its own risks. The victim’s needs became part of a larger risk minimization concern to the organization, where the victim, herself, represents risks to be managed. This phenomenon has become widely recognized and is now sometimes characterized as “institutional betrayal.” Survivors and victims discover that their needs and interests are subordinate to the organization. Victims often conclude that rather than being protected by their institutions, as promised, all resulted from coming forward was to trigger defensive and retaliatory actions by the accused and perhaps also by the organization. They find that the process-driven system unavoidably results in their situation becoming more widely known, with strangers asking detailed, intrusive questions and second-guessing their actions and responses.

Beyond the phenomenon of institutional betrayal, there are many other reasons why victims and survivors don’t come forward. Among them are fear of being accused of contributing to the situation; fear of social isolation and subtle retaliation by peers, the perceived shame of the situation – even if objectively there is no reason for guilt; the lack of confidence in a fair review, and the perception that the organization will look after its own interests at the expense of the victim; the fear of wider public awareness, and the potential of guilt of being responsible for inflicting more harm on the perpetrator than necessary to simply get the unwelcomed behavior to stop. At a higher level, though, the one common thread to these barriers is that the harassment victim or assault survivor feels a loss of control over their options, and must place their trust in a system that involves a set process to resolve the matter in a way that will protect the organization from future liability and satisfy a court or an enforcement agency.

This analysis assumes that unwelcome behavior even occurs in an environment that is covered by traditional legal protections. Recent public disclosures illustrate that abuses occur in many relationships involving power differentials exist where a formal student or employee relationship does not exist and legal protections are less clear. Many whole professions and industries are now structured with massive power differentials, and little, if any protections. In addition to the “Hollywood” and “politician” scenarios that have recently been exposed, we have whole industries with deep traditions of abuse. High tech venture capitalism and contractor-based operations such as transportation, and small high-tech sub-contracting come to mind. What protections and resources have been put in place to protect people in these areas? Sadly, one could argue that there are very few. This is an area where workplace realities may have gotten out in front of legal protections. Given all of these factors, is it really any wonder that victims and survivors suffer in silence rather than facing the gauntlet of the current processes?

So, how do we address area in a way that affords victims and survivors true confidence in a system that works? As one who has worked using many different models to find effective results, I’ve come to understand that we must create systems with ZERO BARRIERS, if we are to expect people to use those systems. How do we preserve fairness, while eliminating the barriers that inhibit victims from coming forward in a timely way? Perhaps counter-intuitively – at least to lawyers steeped in Title VII or Title IX law – a zero-barrier system approaches resolving the victim’s concern very differently. It is not premised on compelled disclosure, but on preserving and restoring a sense of control to the victim. In this approach, the victim, herself, retains choice and control over every option by providing a strictly confidential, informal resource – at least until the victim elects to use a formal, established process. Depending on the specific circumstances, there are a number of services that can provide this approach. In the case of a sexual assault, there are established campus survivor advocates and support systems, designed to absolutely respect the survivor and her preferences, while assisting the survivor to preserve evidence and, her more formal options. In Harassment situations, employee assistance programs and campus student counseling centers can also often fill an important niche in this system.

In the case of either workplace or campus harassment the concept of an organizational ombudsperson, or “ombuds,” provides a flexible and adaptable process with a proven track record of success. An ombuds program is premised on four key pillars: confidentiality – to provide a safe space to explore options and alternatives; neutrality – to afford both the victim and its sponsoring organization with a sense of trust and confidence that the services provided by the ombuds will be fair and balanced; informality – providing distance from the formal fact-finding and investigative processes to assure the victim of her own control over the options, and independence – a program established with a reporting level that essentially protects the program itself from bullying and pressures that could skew outcomes or to compel disclosure into the set formal processes – at least prematurely.

The ombuds model has proven itself in this country and around the world as a very useful tool to encourage early reporting and resolution of harassment concerns. Research also shows that providing victims with the opportunity to confidentially discuss their concern and gain better understanding of what to expect when a formal case is initiated can actually increase reports into the formal investigative system. For example, after implementing the ombuds program for a major research organization, formal sexual harassment investigations actually increased as a result of offering confidentiality and control over their options. Meanwhile, a truly significant number of victims came forward wishing to resolve their concern using their own approach. During the particular timeframe, more than half of the harassment cases reported to the ombuds did not include a formal investigation. Yet, in every case, the matter was resolved to the satisfaction of all parties involved and in this multi-year window not a single law suite was initiated by anyone who resolved their concern using the ombuds model. Meanwhile, about the same percentage of formal cases, continued into litigation. Overall, there was a substantial increase overall in harassment reporting – formal and informal.

The organizational ombuds model can be an important component of a zero-barrier system. A system that ensures that every victim is empowered to make her own choices after being made aware of her options and rights. A system that provides an avenue for the person to resolve her concern with a variety of choices appropriate to the severity of the situation and includes safely exploring all options, not just a one-size-fits-all legally driven investigative process. Options may include facilitated conversations, assistance in developing requests and communications to officials or to the harasser, or safe discussions and explanations of what to expect from the formal system, while not automatically triggering that system simply by making inquiries. It allows expectations to be clear and the risk of perceived institutional betrayal to be reduced.

Ombuds programs are not a panacea. Their effectiveness is depends on the particular ombuds’ experience, competence, true independence, and their individual ability to connect with a wide range of people. This said, the model has proven itself overall to be effective and is embraced by hundreds of college campuses, many national laboratories, corporations, non-profits, and NGO’s. At a time when legislatures, governmental entities, industries, and individual corporations seem to struggle for effective solutions, I would urge them to evaluate whether an ombuds model might be a good fit for their needs.

About the author: 

Bruce MacAllister holds a Bachelor of Science in Biology and Chemistry, and a Juris Doctorate. He has practiced law and conflict resolution for 38 years, focusing his practice in employment and discrimination law. He began his work in the area of sexual harassment as the general counsel for a large state law enforcement agency. He then served as Section Leader for Employee Relations at Los Alamos National Laboratory, where he led a team of investigators responsible for resolving sexual harassment complaints. He has twenty year’s experience as an organizational ombudsman. He served as the first ombudsperson for Los Alamos National Laboratory, designing and leading its ombuds program for ten years, before leaving to help other organizations design and implement ADR and ombuds programs. He served as the University Ombudsperson for the University of Oregon, where he launched its then-new ombuds program and currently serves as the Ombudsperson for the International Foundation for On-line Responsibility. He is currently the Vice President of the International Ombudsman Association, and a frequent speaker and author in the ombudsman field.

 

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