American business and #MeToo

“I DIDN’T wait for a pay cheque. I didn’t tell anyone. I was scared, ashamed and just ran,” is how Daniela Contreras recalls sexual harassment—as she now knows to call it—by her employer when working as a nanny in her teens. Twenty years later she feels able to say “This happened to me”, and works with the National Domestic Workers Alliance in New York to ensure others can do so sooner. Over the past year she has seen a big increase in women phoning, almost daily, for legal advice. #MeToo catalysed this rise, she says. “The hashtag helped start the conversation by writing it, saying it and sharing it: ‘This happened to me.’”

It is almost a year since revelations emerged about the behaviour of Harvey Weinstein, a film-studio boss charged with multiple counts of rape and sexual assault. In response Alyssa Milano, an actor, invited anyone who had been harassed or assaulted to tweet #MeToo. The hashtag has since been shared over 15m times. Victims of harassment in workplaces of all sorts, from S&P 500 companies to small-and medium-sized firms to startups, have come forward in unprecedented numbers to share their harrowing experiences.

Many powerful men have been forced out. Earlier this month one of the most-praised bosses in media, Les Moonves, the chief executive of CBS, was forced to leave following accusations of sexual harassment (which he denies). A handful, including Mr Weinstein, await trial. This week Bill Cosby, an actor once known as America’s Dad, became the first post-MeToo A-lister to be sentenced to prison.

Firms are under growing pressure to change how women are treated at work. Not a week goes by without a fresh example of an organisation finding itself in the spotlight. Earlier this month workers at McDonald’s, one of several firms being sued by workers, protested against a culture of harassment, replacing the “M” on their MeToo banners with the golden arches. In the same week the board of the New York Review of Books, under pressure from advertisers, pushed out its editor, Ian Buruma, after he published a controversial essay by Jian Ghomeshi, a Canadian broadcaster and alleged abuser.

Some people worry that the movement has gone too far, warning of a “witch hunt”, “trial by Twitter,” and the end of innocent office romance. Others fret about a backlash for women at work, where senior male executives may no longer want to mentor them or travel or dine with them alone (a code of conduct sometimes referred to as “the Pence rule”).

Some responses have felt knee-jerk: Netflix, a media company, was mocked when in training it reportedly suggested a rule against people gazing into each other’s eyes for more than five seconds on film sets. Yet the occasional overreaction may be part of the messy process of changing norms across society, business and politics. Although the majority of those over 65 say it has become harder for men to interact professionally with women in the wake of MeToo, a minority of those under 30 say the same. Indeed, the real question is not whether the pendulum has swung too far but whether it has swung far enough. The answer to that is clearly “no”.

It is true that some notorious sexual predators are now facing justice; Mr Weinstein’s next court appearance is in November. But most of those accused of harassment or assault have faced the court of public opinion, not the law itself. In America the Equal Employment Opportunity Commission, a federal agency, has noted in preliminary findings just a modest, 3% uptick in sexual-harassment complaints filed by employees this year.

Their day in court

This is in part because few victims report abuse, let alone press charges. Those who do rarely manage to get their complaints heard in court. In America the Time’s Up movement set up a $21m legal-defence fund to try to change this. Since January it has had 3,500 applications, two-thirds of them from low-income workers.

Many American states are reviewing their laws. Washington now bars employers from mandatory non-disclosure agreements for employees, which stop workers from speaking out publicly about their experiences. Several are exploring extending or ending statutes of limitations, spurred on by revelations of child abuse in the Catholic church in America. California is in the process of passing several “#MeToo bills”, including banning forced-arbitration clauses in contracts, which require workers to waive the right to take an employer to court in the event of a dispute.

Meanwhile, the number of shareholder class-action lawsuits based on gender claims has risen, says Kathleen McKenna, an employment lawyer at Proskauer in New York. Last November, 21st Century Fox reached a $90m settlement with shareholders over losses related to two harassment scandals. Employees are taking firms to court too—including Google, where a plaintiff cites a “bro culture” that allegedly allowed harassment to go unpunished, and Ford, which faces a class action by workers claiming they were sexually harassed and their complaints obstructed. Yet the uptick in workers’ class actions has been modest, partly because in May the Supreme Court upheld employers’ rights to block employees from bringing them.

What the law can do is in any case only part of the picture. Many, if not most, of the accounts of harassment that have emerged in the past year point less to a failure of lawmakers than to one on the part of employers. Big companies in America are keen to be seen to “do something”: the number of public declarations about zero tolerance of harassment has gone up. Yet whether or not their actions are meaningful, or whether they are still dodging deeper problems around power imbalances in the workplace, is very much in question.

Customers, investors, boards, employees, stock analysts and even insurers increasingly ask for information on what a company does for women, including the protection it affords against harassment. Equileap, which ranks firms on gender-equality criteria, now includes sexual-harassment policies. It is seeing strong demand for such data. That is partly because the headline costs of a scandal are clear: shares of several big firms have fallen sharply after executive departures (see chart). But less obvious costs, such as to productivity, turnover and reputation, are also becoming harder to ignore.

In a recent survey by Deloitte, a consultancy, business leaders cited the #MeToo movement as the news story that had most affected what they call “inclusive growth initiatives”. “As with the first cyber-risk incidents, #MeToo is helping make boards realise ‘this could happen to us’,” says Jane Stevenson from Korn Ferry, a consultancy.

Even so, few firms want to talk publicly about what they are doing inside the organisation. Those that do often have reputations sorely in need of burnishing. Uber, a ride-hailing firm, replaced much of its top management and claims to have prioritised culture and safety; it is adding a safety function to its app, has ended forced arbitration for harassment and assault and will start publishing data on assault reports. The Old Vic, a London theatre tainted by a scandal involving Kevin Spacey, its former director, will next week announce a “Guardians network” to better protect workers in the performing arts.

Less visibly, several employers have made efforts to improve internal procedures for reporting harassment. Victims often fear retaliation, both from their harasser and their employer (particularly when they are the same person). Independent, anonymous helplines overcome conflicts of interest and several report growing demand. A non-profit called Callisto, based in San Francisco, has developed software that allows employees to enter a complaint which will be filed only if a second complainant accuses the same person.

But many other firms appear to be shirking the task. Less than a third of Americans surveyed in May said that their employer had done anything new to deal with sexual harassment following #MeToo, according to the American Psychological Association (APA). Of those that had, the commonest approach was to remind employees of existing harassment training or resources. Other favourites include reviewing company policy, revising codes of conduct and refreshing training material.

Listening to Everywoman

Some of the most promising solutions to the problem of harassment come not from S&P 500 companies nor from Hollywood, but from workers in low-wage sectors, who were grappling with this issue well before it became a hot topic. Domestic servants and farm workers face some of the highest levels of harassment and some of the flimsiest protections.

Decades of work by a Florida farmworker-advocacy organisation, the Coalition of Immokalee Workers, has seen its practices copied in other states. As well as training workers, the organisation persuades tomato growers to sign up to a Fair Food programme, binding them to strict conduct rules, including on pay and harassment. In exchange growers can sell to retailers such as Whole Foods or Taco Bell, which will buy only from Fair Food farms. During the 2016-17 growing season, 70% of farms reported no sexual harassment at all.

Away from the fields, nearly six in ten hotel housekeepers have been sexually harassed or assaulted and 65% of casino cocktail-servers have been groped, grabbed or touched in an unwelcome way, according to UNITE–HERE Local 1, a Chicago union. Its campaign, “Hands Off Pants On”, successfully lobbied for a city-wide ordinance that obliges all hotels to issue housekeepers with panic buttons. Although the campaign was under way before #MeToo, the movement undoubtedly played a role in the recent decision by several chains, including the Hilton and Marriott groups, to start issuing such buttons nationwide.

But panic buttons and reporting systems still put the onus on victims rather than abusers. The bigger step is to prevent harassment in the first place. In most companies this requires deeper cultural change. “Organisations struggle most with behaviour that’s unwelcome, unacceptable but not unlawful,” says Pam Jeffords of Mercer, another consultancy.

The worry is that most employers have spent the year since the Weinstein scandal broke carrying out symbolic actions and conducting a sort of phantom reckoning. Lots of companies have done the minimum necessary to reassure compliance departments. Announcing a “zero-tolerance” policy sounds tough but is often empty rhetoric; it can even be counterproductive, by putting victims off reporting if they know that a sacking is bound to result.

Having rid itself of Mr Moonves, and previously of Charlie Rose, a star presenter accused of decades of harassment (which he denies), CBS shows little sign yet of wanting to change its culture. It may still pay a big severance package to Mr Moonves. One of its executives reassured the Washington Post that “I’m confident the culture of the entertainment division is very safe, very collaborative and very welcoming.” But Patty Wise, an employment lawyer, questions whether CBS’s culture can recover from the serious damage caused by Mr Moonves’s abuse of power.

A similar question about culture change looms over Nike, which fired 11 senior managers over harassment and discrimination earlier this year. It has at least issued a public apology, and taken some steps—introducing an anonymous hotline and hiring a chief diversity officer. Yet whether this will be enough remains to be seen. Four former executives are suing the sportswear company for alleged gender discrimination in pay and promotion.

Few firms have got to grips with the fact that harassment is often a symptom of bigger, subtler problems: unequal access to power and unaccountable cultures. “All the training, policies and punishments won’t have an impact on harassment if you don’t address power differentials, pay equity and gender equality in organisations,” says David Ballard from the APA. In its survey, employees for organisations that have women in senior leadership said they were more likely to report sexual harassment at work (56% vs 39%) or to confront a co-worker engaging in it (53% vs 34%) than those without. Several studies found that harassment is more prevalent where men outnumber women and where supervisors are mostly male.

A survey carried out by Pew, a research outfit, this week found that the majority of Americans consider men and women equally capable of being leaders in politics and business. Yet in the time that #MeToo has been trending the number of female Fortune 500 CEOs has fallen. Progress in closing the pay gap has stalled in several rich countries. Until the barriers that stop women from having an equal stab at reaching the top are cleared away, #MeToo will struggle to succeed.