Sexual harassment.
It is common, career-altering and currently celebrity-driven.
And it is a serious workplace issue that three New Jersey power women are facing head on.
“The calls became more frequent in the fall and come in almost daily,” Karen Kessler, principal and co-founder of Evergreen Partners, a strategic communications firm in Warren, said. “We have had calls from not-for-profit, educational, religious and both medium- and large-size corporations. … We (also) have been engaged in cases involving politicians and other high-profile types, both in New Jersey and in other states.”
Nancy Erika Smith, partner and co-founder of Smith Mullin, a law firm in Montclair, said she has even seen it persist in mom-and-pop stores, gas stations and diners, as well as in the Fortune 500.
“It has been a problem in New Jersey since I began practicing law,” she said. “There are no exceptions.”
And Gloria McDonald, a Madison-based independent organization development consultant with more than 20 years of practice in workforce diversity and inclusion and leadership and talent development — including a career with Prudential Financial that spanned more than a decade — said it is an issue that the leadership in many organizations have taken for granted.
“Some felt that their company values covered them and did not take it seriously enough, while some thought it better to sweep such concerns under the rug,” she said. “Now, it has become abundantly clear that men and women need not only understand what is appropriate in terms of workplace behavior but also how inappropriate behavior can impact them as individuals and their organizations.
“It is not simply about the financial cost of a settlement, but rather the cost of employee engagement and productivity that occurs when gender, race and power dynamics allow any group to be treated poorly in the workplace.”
New Jersey businesses in every industry are as likely as anywhere else to soon face publicized sexual harassment claims and issues of consent, both Kessler and Smith said.
Kessler, known best for her more than 25 years of crisis communications and reputation management in the state, said the news is far from being old.
“There are many more accusations to come in industries that have not yet been in the spotlight,” she said. “There is sheer panic in the voices we hear in the phone calls from employers who are really stressed over how to handle it.
“People have gotten away with some really unbelievably aggressive and ugly behavior for far too long.”
As ugly as it may be, Smith said it could be a good first step.
A pit-bull employment lawyer in New Jersey for nearly four decades, Smith said publicity — and the fear of being next — can help to move the needle forward.
“Now is the time to change our workplaces,” she said.
ROI-NJ spoke with each of these women to find out more about what they and other businesses are doing to tackle the issue of harassment and assault in the workplace. Here’s what they had to say:
ROI-NJ: What is the first piece of advice you would give an executive or a company when it is their employee who is accused or making a public accusation?
Nancy Erika Smith: You need to allow people to have lawyers so that they feel safe. Why wouldn’t you allow a lawyer into an interview with someone who may have a case? As soon as an employer says that to me, I know what the outcome is going to be. It’s not about getting to the facts — it’s about intimidating my client, trying to trick her into saying things or making her feel uncomfortable so that she doesn’t tell the whole story.
Karen Kessler: It’s really been challenging for a lot of employers when the person involved was someone who generated a great deal of the bottom line. Then, it involves a big internal discussion and a question of how many others are impacted when you cut a person loose versus the kind of culture that you want your company to have. … We’ve also (worked with) smaller, private companies that have made partnerships where this sort of thing is now ripping at the seams. Companies may choose to either dissolve or reform based on this kind of thing. … Still, there is only so much an employer can do to make up for what happened in the past, but you can be proactive about your future. Those are the employers that I think people will gravitate towards.
Gloria McDonald: I work with businesses that feel there may be a possibility of easily ending up on either side. The first thing I would recommend they do is everything possible, within the rights of the individuals, to find out the full story. Next would be to determine the impact on the organization and take corrective steps. Overall, a company needs to be transparent as possible as quickly as possible. While there is an immediacy to the accusation being made, there also is the fallout that lives within an organization way beyond and a culture that has been build up prior to the accusation itself. All of that needs to be dealt with.
ROI: How might human resources departments need to adjust their training to address the severe and pervasive issue of harassment?
KK: It is no longer just about training employees and managers about discrimination and harassment — how did your own human resources staff handle a situation? Then, there are the mid- to small-size companies that don’t even have human resources professionals. … At one point, it used to be mostly attorneys that would conduct corporate training, but now there are all sorts of educational organizations and even workplace theater groups that will offer it online or in person. With so many different forms, it can be difficult to know what is truly effective training.
GM: Training has been around for decades. But, for example, many companies have training ‘suites’ to say that all employees have been informed. Many companies even conduct online training because it is the least expensive and time consuming to do. While this sort of thing may be good at delivering policy messages, it does not get at what is causing the underlying behaviors, which are getting companies into trouble. … The main thing that needs to be changed is that training should no longer simply be viewed as compliance. Companies need to look more deeply at the drivers of gender, race and power dynamics. They need to create forums in which employees can have the chance to discuss how harassment impacts them and their organization. We don’t usually talk about what it feels like to be harassed and the energy it takes to work in an environment like that. … The basic legal requirements may have been met but if you are going to change the culture, discussions must become deeper and leaders must lead the way by being held accountable for the environments they create.
NES: Human resources has been in a conflicted position from the beginning, being that their job often is to protect the corporation. I’ve been doing this for 37 years, and all I can tell you is that I have seen a thousand times how HR has not been my client’s friend. The employee often is immediately looked at as someone HR has to get rid of before she starts complaining. Almost without fail, when I get involved, HR already has found no substantiation, meaning that they believe the woman has made her claim up, for some reason. … And, out of the thousands of people we have represented, there were maybe just one or two who weren’t asked or forced to leave their employment. … I think now we can see how women don’t feel like tolerating that anymore. They understand now that HR is not there to help them. So, most corporations should now look to independent investigators, such as former judges with reputations on the line, to come in and really look at things. Women want to work with someone who won’t start from the proposition that a woman is probably lying because she wants to destroy her career. Often, all my client wants is for her company to fire the harasser and let her do her job, but that never happens.
ROI: How do you see these issues affecting New Jersey businesses in particular in 2018?
GM: It is going to be important for New Jersey businesses not to underestimate the impact that will be felt. This will be public. Both potential employees and current stakeholders will be made aware of what businesses do if there is a problem. New Jersey businesses who are attempting to grow and attract and retain talent will not be able to compete going forward if the culture has supported harassment of any kind.
KK: The legislation that Senator Loretta Weinberg introduced (see below) could have a huge impact on the way most employers in New Jersey operate. I think it’s going to be very controversial and will receive a lot of pushback because (nondisclosure agreements) are one of the principal ways in which companies have worked to try and have these sorts of things not be public events that could impact their reputations.
NES: We are not going to ask for — we are going to demand — a seat at the table, not just in our state Legislature, but in our town councils, our Congress and our corporations. We are not going to accept anymore that we are ‘allowed’ to run human resources and legal and some stuff in operations, but the people who make the real money and the business decisions will all still be white men. … Because we have a highly educated workforce, women will start demanding equal pay, and I think that will be at the forefront in New Jersey. … In general, we have a very conservative appellate division, which I think we will be challenging a lot more. (Gov. Chris) Christie had eight years of appointing judges, many of them being from the prosecutor’s office with very little experience in discrimination law. I think that, with the new governor, we may actually see public defenders and civil rights attorneys get to be judges — maybe even more women and minorities. That will have a tremendous impact on the development of good law, and good law is good business.
ROI: Sexual harassment and assault have been topics at the forefront of a comprehensive discussion concerning the equality and increased leadership of women in both politics and business. How can and why should companies be more proactive in addressing all of these issues?
KK: Every study has shown that, when the leadership of an organization, from the board on down, is one in which women are well represented, it changes the culture of an organization. But I have been involved in a number of organizations for decades that have been trying to get more women on boards, and no matter how hard they try, no matter how many job banks exist, no matter how many big, fat notebooks there are with the names of all kinds of accomplished women, in the end, it’s still about who you know and how much trust they have in you that you will support the current management.
GM: Since most of leadership at the top is typically male and white, any other dimension of diversity that attempts to move up the ladder will run into challenges around the dynamics of power. The biggest challenge I often see is that leaders need to better understand their responsibilities. … Companies need to audit the cultural health of their organization just as they would their financial health. They need to give more thought to morale and to whether or not equality and equity exists within their organization. … They can do this by first conducting self-audits. A company may employ their human resources department or a consultant to conduct focus groups and interviews and make use of employee opinion surveys to understand how individuals feel about being employed there. Then, leaders need to understand their responsibilities around making sure that workplaces are safe and allow all employees to be engaged and do their best work. This may require training at a higher level, perhaps with one-on-one coaching, than a company may have had in the past. Lastly, employers should make it possible for everyone in an organization to speak up about what they experience without offense or retaliation.
NES: Businesses could give their own cultures and their own bottom lines huge benefits if they really allowed us all to challenge the cultural mores that have been sold to us by white men in the patriarchy. If we really challenge them, we can have a more cohesive, more productive and more creative workplace everywhere with better morale. … When women are allowed to thrive in non-harassing environments, we are going to see new inventions, more collaboration and creative ideas, and companies will thrive. It is going to be good for business. It’s only bad for the businesses that refuse to change or embrace diversity or pay women equally. I hope those businesses suffer. I hope I find them and sue them. … Businesses have deprived themselves of valuable workers. By keeping the harassers who are costing money and time and interfering with productivity and morale, they have made a bad decision. Let women come in and thrive and compete equally. That is all we want.
ROI: Do you feel as if the tides are changing for women in the workplace? Why or why not?
NES: I do. I really do. For example, Microsoft has vowed to stop mandatory arbitration of sexual harassment claims and we are pressuring the rest of Silicon Valley to do the same. In addition, a bipartisan bill (entitled “The Ending Forced Arbitration of Sexual Harassment Act”) was introduced in Congress in early December that will hopefully be signed into law. It was about to be the law because of the (President Barack) Obama-era regulation that anyone who did business with the government could not force people into mandatory arbitration, but Trump undid that with an executive order.
GM: Right now, the tide is being carried along by the public and company stakeholders who are demanding accountability at both individual and organizational levels. The fact that the most visible cases concerning high-profile leaders are being addressed in a very public way gives the sense that there is a lot going on. But, if we are talking about tides, there are people still out there in the ocean wondering if and when they will be rescued. There are lower levels of business where people are subjected to such poor treatment every day. Although I believe it is good and healthy that the discussion has gone public, we need to pay attention to what it’s really been about: women and men in high profile positions, which has done little to advance, at this point, discussions about mid- to low-level workers who experience this every day.
KK: I’ve been down this path for a long time, on many different levels, so I am cautious to say that the genie is out of the bottle and can never go back. For many men, I think this has been a real eye-opening past few months and a time of reflection for a lot of employees and companies. Whether that reflection is out of all kinds of wonderful motives or defensive and concerned ones, it doesn’t matter to me, as long as they are thinking about how they can change the culture to be more responsive to what’s going on in the world. … It’s also a time of a lot of confusion. We are asked a lot of questions now about what exactly is appropriate — ‘Is it OK if I say you look nice today, or I like that outfit?’ I respond that, if you really want to compliment her, tell her you’re promoting her. Tell her she’s damn smart. Tell her she made an important point in that mattering. Those are compliments to me.
Changed for good
Since July 2016, Nancy Erika Smith, partner and co-founder of Smith Mullin in Montclair, has been busy managing a flood of gender discrimination and sexual harassment suits against the Fox News network, including those concerning the late Roger Ailes, former chairman, founder and top executive; Bill O’Reilly, former political commentator and host; and Bill Shine, former co-president.
She has filed suits on behalf of Gretchen Carlson, a former Fox News anchor; Julie Roginsky, a former Fox News on-air contributor and longtime New Jersey Democratic strategist; and Rachel Witlieb Bernstein, a former producer at Fox News.
That is just to name a few.
“I became a lawyer to change the world, not to move money around, so I feel really good that women have started to feel empowered to speak up, starting with other victims of Roger Ailes,” Smith said. “It has been heart-wrenching to listen to their stories, from many who had never told their stories before, not even to their husbands or their children, because of the cultural shame they felt as a victim.
“I feel incredibly proud to have sparked something — if we did, and I think we did — because Gretchen bravely spoke out against someone with a lot of power.”
Smith said she also learned to truly appreciate the work of journalists, such as Gabriel Sherman of New York Magazine and Vanity Fair, in helping to share such stories.
“Women said, ‘We don’t have to be shut up anymore and, maybe if we all speak out, we’ll change something,’ and then wonderful journalists, who were sensitive and willing to listen, started digging deeper,” Smith said. “Then we got O’Reilly and Weinstein and the added momentum of social activist Tarana Burke’s #MeToo movement.
“I also think the election of Trump made women say, ‘Oh, my God — we better do something.
“’We can’t be complacent anymore.’”
Things you can’t unsee or unhear
There often is a misconception, Karen Kessler said, that her strategic communications firm can be hired to “make it all go away.”
“That is not what we do at all,” Kessler, principal and co-founder of Evergreen Partners in Warren, said. “What we do is try to work through with companies how to communicate with their employees, the public, their stockholders and their vendors, that they’ve been going through a challenging time, that they are handling the issue and that times will be better because they have learned from this.
“This is not about suppressing news. That is not how we would ever handle it.”
Especially when Kessler has seen what she has seen and heard what she has heard, she said.
“We have had a lot of difficult conversations with a lot of difficult people over these last few months,” she said. “There are certain themes that we have heard over and over that almost have become routine.
“It almost always starts with, on behalf of the person who is being accused, that it was consensual. That is the most misused and misunderstood phrase right now. We have had to say, many times, that when you are the person signing the paycheck, it is not consensual. It is amazing how many people don’t get that.
“The other line we’ve heard too many times is, ‘I was mentoring her.’ And one of our favorites was, ‘Because it was after 5’ — as if all the rules had been suspended because it was 5 p.m.”
The most challenging part of her job — and, all too often, the responsibility of employers caught up in such scandals — is to actually find out the truth, Kessler said.
“There are so many different versions of how people will rationalize their behavior,” she said. “Very few people will acknowledge what really went on, because they have families at home or it will jeopardize their career or, in some of the most amazing cases, they don’t understand that what they did was wrong. If someone reciprocated, wasn’t it OK?
“This is never the kind of discussion where there is a lot of proof. Sometimes, there are text messages and photos — I mean, really, too many photos that none of us ever want to see again — but, often times, there are not and you still have to be able to really ascertain what went on and be able to correct it in the future.”
A senator steps in
State Sen. Loretta Weinberg (D-Teaneck) reintroduced to the Legislature this month a bill barring provisions in employment contracts that waive rights or remedies, as well as agreements that conceal details relating to discrimination claims.
Nancy Erika Smith, partner and co-founder of Smith Mullin, a law firm in Montclair, said she could not be more thrilled.
“Silence has allowed these monster, serial harassers in our workplaces; silence has not only often taken away women’s dignities, but often their jobs, their voices and their truths,” Smith said. “The next victim will therefore not know that there have been prior victims and that the case is stronger than she thought. The judge and the jury will not even know.
“It’s a really terrible system, to be selling silence instead of stopping harassment. So, if Loretta Weinberg’s bill is passed, every company better start looking at their practices and fix them before they get sued.”
Conversation Starter
Reach Nancy Erika Smith at: nsmith@smithmullin.com.
Reach Gloria McDonald at gd.mcdonald5@gmail.com.
Reach Karen Kessler at: kkessler@evergreenpr.com.
