tv Wall Street Journal CEO Council Discussion on Workplace Sexual Harrassment CSPAN December 4, 2018 5:58pm-6:26pm EST
>> i worked with for people who -- four people who want -- jimmy carter, bill clinton, barack obama, and to my surprise, donald j trump. >> publisher of many best- selling nonfiction books >> i also came to understand about donald trump, and this is profoundly important for the way things work now, is donald trump and his heart of hearts believes he always wins. here is a guy who has been in new york real estate, gambling, real estate, boxing, wrestling, beauty contest, television, construction, never been the target of a criminal investigation. that is astonishing in new york city. >> a conversation with a long- time journalist and publisher. sunday night at 8 pm eastern.
the wall street journal held its annual ceo council meeting, including speakers just -- such as john bolton, and congressman steny hoyer. you can see the entire event beginning at 8:30 pm eastern on c-span 2 or any time on c- span.org. right now, part of the conversation on how companies can handle sexual harassment complaints. and address cultural issues in the workplace. this is about 20 minutes. good morning everyone. it has been a year of horrendous revelations of workplace behavior, as evidenced by some of the headlines we will show you right now. and many more. coming across the screen now. workplace culture is something
that is generally seen as more about a soft topic for ceos, but our -- we have a different take on that. so today we're going to get you some free legal advice on some of these issues. tina, you have said workplace culture should be not so much as a soft thing, but -- >> thank you jamie. and thanks to the wall street journal for having this discussion because i think it is really important. i started a practice after he left the white house on workplace culture. i did 23 years of corporate governance securities litigator. i have this intimate recollection of implementation. but it is that rigor, the thing about the soft issues,
historically, that is been one of the problems. we are 30 years since the case that made sexual harassment under title vii. 30 years later we have all done training. i can probably quote you all your sexual harassment policies verbatim because every company in america has pretty much the same ones. and here we are. it has not worked to stop it. we don't have diversity and inclusion. and my personal analysis on my some of that is is that we have been treating these issues like hr employment issues three levels down in the organization instead of being leading from the top and being ac suite and corporate board governments issue. and we stay within the confines of the law, which is pretty limited. >> lisa, you are a plaintiff lawyer. let's say something happens at one of our ceo companies.
things happen no matter how great your policies are, and what can people do to make sure that when it is all done, you don't have a case. >> best practices. >> which are what? >> -- give us an example. how should the kit company handle it anyway to protect them from you? >> i think the number one thing in any company is leadership and accountability. so there has to be a tone at the top to begin with. to show that we care about this issue, we take this issue seriously, and when things do happen, we are going to deal with them promptly and effectively. so the first thing i would like to see happen is the victim, assuming it's a woman, nowhere she has to go. or knows that there are options in place she can go to report. and then when she does go to report, her concerns are heard and taken seriously.
and that they are dealt with promptly. that there is an investigation immediately, and that the investigation is thorough. that it is fair and impartial, and that she is being communicated with throughout the process. i hear from far too many clients that they report something to hr or whatever mechanism is in place, and they never hear anything again until they may be here something akin to it's been taking care of. but nothing ever happens. so i would like to see more communication, and then >> but what are you allowed to tell, and where does it get to? out the communication piece is really important. i agree with lisa i have heard from any employees and clients that hr was a black box. everything went into it and nothing came back out. it is one of those problems with language like zero- tolerance because everybody believes that everything is a fireable offense and the guy is still there even after the
investigation. employees have told me what was the point? even if the person has been sent to mandatory counseling and there's a lot of employees who say i actually don't want to see the guy get fired, i just want the bad behavior to stop. i have had employees tell me they did not report because he was actually good leader for the company, he just was a really bad actor in some respects. but the problem with communication is that best practice historically in employment law has been confidential. he goes into hr and nothing comes back out because of confidentiality. and that has eroded trust for many companies. they're dealing with a trust deficit. because people don't trust calling the hotlines are calling it because they don't trust what will happen. it to reestablish the trust, you do need to start communicating. and actually, in many states, about half the states have laws that will protect you as an
employer from providing truthful information to someone who has an interest in knowing it. the victim reporting has that interest. so there is -- there is more leeway to provide communication that historically people have believed in employment investigations. but where the line is is difficult. i think we're still working that out. part of my analysis has not worked, we have to do some new things and have to figure out, and one of those is how much do you tell. once beyond the victim, how much you tell the workgroup, the immediate supervisor >> investors >> how much do you tell investors? that is pretty interesting. where is the materiality standard in this? we are seeing from some news reports, if it is your ceo, and if he is sitting on $120 billion parachute, there may be material.
but i think we are in a very rapidly changing landscape for that because i think historically you can see all the settlements done over many years for senior executives that are now coming to light were handled quietly without any disclosure. >> i want to go to a poll question to see how the audience feels there are doing on the subject. do you feel your company pursues best practices for a fair and safe workplace? so far -- let's talk about mandatory arbitration. google and facebook are backing away from it following uber and microsoft. is this an easy answer? >> i don't think it is an easy answer. i think it is something that companies have looked to to say here is a place where we can
make a change and potentially make a difference. and i think the intentions were good, but there are unintended consequences. i don't think that's >> unintended for arbitration requirement and opening it up to the courts. what with those consequences be? >> not every victim really wants to go to court. and the reason -- i remember, when i -- we all did mandatory arbitration. clauses were put in because it was viewed as best practice on both sides. cheaper, faster, and the ability to reach an agreement in a quick way. not all that has proven true. it does -- there are plaintiffs who will not going to come through. the biggest thing is i am
troubled by the notion you can change this thing, mandatory arbitration, and that is a big solution to ending sexual harassment, when it is really the tail end of the process. not one of the things that really addresses how we are going to make sure sexual harassment doesn't occur in the first place. and i think you got latched onto that because people were so outraged by some of the secret settlements, it became the flagship issue. i'm not entirely sure this is -- we need to pick something that would and sexual harassment, ending arbitration would not be at the top of the list. >> limiting it to just sexual harassment can create problems. because you will say mandatory arbitration is not okay for victims of sexual harassment, but what about other victims who believe they have a claim in the workplace, and you've created this hierarchy of harm
that says we care more about sexual harassment and it is not okay in that context. so why is it okay another context? you might have a backlash from your workforce down the road if you just identify sexual harassment as the issue. >> one thing on the front and in terms of structure is to whom should a diversity officer report? this is another thing from the google walkout. sure that person report to the ceo? should there be an employee on the board of directors, another demand from the google workers? what is the best practice now? >> i do think part of what i said early, you have to elevate these issues. whether you actually have a diversity and inclusion chief that reports to the ceo or some other structure, i think it is really important to have responsibility and accountability for these issues residing at the top of the organization. and whether that is through your corporate governance committee on the board taking a look at the issues, whether it is the ceo or coo having
someone reported them, have this in their portfolio, i think that is very key. both for the signal it sends of how important this is, and also to manager. we have not managed these issues. historically, and this is by no means to be critical, this is what everybody thought was best practice, employment cases were to be handled and contained. employment costs were to be contained. so you took the case that came in, you settled it as quickly as you could, and you moved on. he dealt with lisa as quickly as you could, and you contained your cost and moved on. nobody looked at patterns. i sort of understand why companies say they did not, because no one had a practice of saying we now did 10 settlements for the same issue for the same guy or in the same sales office. to see i have a pattern happening, especially if you're running a large organization. >> and that is how it was treated.
now we know that is led to toxic work cultures. in the business case for addressing toxic work culture in your businesses, people will not come work for you. millenials are looking at the values. they're looking at the news reports. i have had people tell me once they are in the news, they had prospective employees say i am not coming anymore. we are in a tight labor market pick talent in the information economy is the business investment you need to me. i am suggesting a different paradigm. instead of employee cost being something we have to control and limit, it's time to make an investment. it is time to extend yourself, invest in what your culture should be. take it as a c-suite. you are investigating your r&d. what is your business investment you need to succeed in the future? and i think it is having a better and more talented workforce. having a more diverse workforce, not just because it is the right thing to do in your consumer base is diverse, but you have all this research,
including from other business journals, so you need to have diversity. >> each of you has been involved in endeavors tied to current events. and i want to ask you lisa, you were on the legal team for christine blasey ford. can you share with us how she is doing? and what you think the impact has or has not been long term of those signature historic hearings? >> i can say that she is doing pretty well and trying to get back to normal life. she is still not living at home. she is still fearful. she is receiving threats. it is not safe yet to be back in her home. she still has security detail with her everywhere. i think the impact of what she did is significant. and i think it came on the heels approximately a year after the weinstein matter exploded in the #metoo movement began. and i think what she did was
incredibly courageous. women who have been coming forward in the workplace looked at her and said, wow, what courage to come forward on a national stage. and i think she took the conversation and made it national in a way that it had not been before. and moved us forward. and i think that is important, and i think that will resonate with the country. and move us forward as a society. >> tina, you are involved in this times up defense fund. can you tell us, this is for people who need help, legal help bringing their concerns forward. what are you learning in that experience? >> we started the fund last january 1 when the movement was announced, led by the women of hollywood. the legal defense fund was this first-rate tangible effort by that movement to provide
structural change and some assistance in this area. we have the center in d.c. we reached $22 million and counting. >> not that much. >> it is well appreciated, but when you 3800 cases which have come forward so far, $22 million will not go really far. so we are increasing that effort. that was intended for anyone who is a victim of workplace harassment, sexual harassment, to find legal help. and also, anyone -- and this is happened on several occasions, if you are someone who has spoken out about being a victim of sexual harassment and you are being sued by the person you have accused, which is happened on more than one occasion, the first was brett ratner, the director who sued an actors -- production assistant. with the defamation
case you have no access to legal fees, so the fund is there for a -- for that. low income women are the targets a two thirds of those lawsuits. it turns out, because of the efforts of lisa and her colleagues, low income workers actually don't have enough access because it is all in the wages and attorney fees -- and it turns out, which we do not expect, there are thousands of low income workers with no access to help. that is what the legal defense fund is therefore. >> let's go to questions. >> thank you very much for these comments.
all of us are navigating through a changing world on a lot of these issues and trying to do the best we can. my question has to do with the double-edged sword of what is literally affirmative-action. i will give you the example. i will tell my executive recruiter firm, you need to give me more diverse candidates. you need start putting some of these resumes the represent diverse individuals at the top of the pile. and that is an entirely legitimate thing for me to say. but upon hiring a person who happens to satisfy this criteria, that person certainly doesn't want to hear that they got special preferences because it devalues their talent and skill if they know their skin color or gender was a factor in hiring them. so how -- in terms of creating a culture, how do you avoid having an affirmative-action culture where, as the company becomes more diverse, people may feel like there is criteria other than talent or qualifications being brought
into it? >> these are the kinds of issues resonating far beyond business. in the harvard college case. >> that is the tone at the top. if you're setting a culture to say we want a diverse workforce, we value that, for all the reasons, the business reasons, the way we want to reflect our consumers and the culture we are in, and then you set the criteria. going to the top of the pile is fine, but i actually say, the best thing to do is what you're saying, prevent -- make sure all people you're hiring are looking from a diverse place. but then set the criteria to say we are not asking for different criteria to be set, you want everybody still to be judged by the same criteria, but after you make sure the criteria themselves are gender-
neutral, because remember there's a lot of criteria out there, is this someone i can take to the board, is a someone who is aggressive enough, that are actually not necessarily true gender-neutral criteria that are relevant to actual performance on the job. they are in themselves infused with bias. you want to make sure you are sitting criteria that are truly neutral criteria. but then you should i apply that. let the people know you apply the criteria to across all the slates, but you want the slates to be diverse. of you have diverse slates at the start and let people make their own decisions, you will over time become more diverse. and i think so long as you are sending the message or holding everybody to the same standards , because you have to make sure their fair to everyone, that is a message that will resonate. >> thank you for your efforts. thank you to the wall street journal for raising this issue. have you seen outside of
publicly traded company sectors that seem to be doing a better job of this? the military? academia? government? not-for-profit? >> i think there are -- no is the short answer. i think there are entities, organizations and companies across the board that are doing it well, and i think there are many that need to do it better. and i don't think there is one particular industry that is standing out and leading the way. >> i get that question all the time. i can't really come up with one. one reason i think, and an important point i want to get to, i think one of the reasons there is so much difficulty across the board is we had treated these issues like legal liability limitations. you think about your sexual harassment training, historically, it has probably
been legal liability limitation training. not training to the culture you want. that was best practice in the past, but it has led to the workplace cultures because the law is really limited. there's a lot of bad behavior that is not illegal like, if you have a guy who is just bad to everyone, not based on gender or race, that is not illegal. it is probably actually defense. they're people accused of engaging in sexual harassment essay i just do that to everybody. and actually, it is a good defense. equal opportunity harasser. that is probably not the culture you want. the other example i often give is the bystander. you are not required to protect bystanders who come forward. i have actually sat in training where the trainer has said, it would be nice if you spoke up for your coworker, but you don't have to. it is not required.
again, that is probably not the culture and message you want to send your workforce. i have been telling clients, you need to step outside your legal comfort zone and start to articulate standards for your workplace that are just -- not just limited what the employment lawyer is telling you , you need to do things like protect the bystander who comes forward, even though you're not required to do so, even though that might expose you to additional liability, but this is an investment you need to make in one of your greatest resources. >> what does it mean not to protect the bystander? >> if he bystander comes forward and says, i observed the supervisor hitting on her and she was really a comfortable, i'm coming forward to report. if the company doesn't take it seriously or something happens and the supervisor ret against the bystander, if you have given the bystander protection, the bystander canal say under your code of conduct i was retaliated against for coming forward. that is a protection you're not
currently required to give. >> what you're saying maybe you should. >> maybe you should. >> if there is any company doing great at this, that is a standout company, what companies are moving towards this in the best possible way that you have seen that are good examples? >> i think a lot of companies in this era are trying to move in the right direction. and they are moving away from this focus on how to avoid liability to a focus on how to change the culture so that the bad behavior is stopped essentially because, if the tone at the top is we don't tolerate bad behavior, which includes illegal behavior, or just simply uncivil bad behavior that you don't want to see, the bullying etc., then you're going to move in the right direction to be able to implement these policies. and i see a lot of companies now moving in that right
direction and trying to determine what are the best practices to make ourselves a better company. >> i will give you one example in a slightly different way. there may be some executives in the audience -- i have been working with american hotels and lodging association. one of the things that they did , the first time i have seen an entire industry step up. in september they announced with all their competing ceos, marriott, hilton, on the stage together, announcing an industrywide five-star promise around the panic button technology, but going beyond that, talking about training and culture and investing in their people as part of this five-star effort. and that was pretty remarkable to reach across competitors as an industry. and it is one that realized
safety in their properties is a pretty important feature of the business. but you can't also be authentically safe if your employees are not also safe. and they realize that as an industry and came together. >> fascinating discussion. thank you very much. [ applause ] live coverage of the state funeral for former president george hw bush continues as he lies in stay in the u.s. capitol rotunda for public viewing until wednesday morning at 10 am eastern. then the departure ceremony from the capitol, followed at 11 by the funeral service at washington national cathedral. the state funeral for president george hw bush. watch the live coverage all this week on c-span and c- span.org or listen on the c- span radio app.
washington journal live every day with news and policy issues that impact you. coming up wednesday morning, we discussed the life and legacy of president george hw bush with a chicago tribune columnist and ethics and public policy senior fellow. be sure to watch c-span washington journal live at seven eastern wednesday morning. joined the discussion. next, healthcare official talk about the medicare payment system and make suggestions on ways to improve it.