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tv   Wall Street Journal CEO Council Discussion on Workplace Sexual Harrassment  CSPAN  December 5, 2018 12:39am-1:05am EST

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in argentina i feel very optimistic about the prospects for enhanced relationships in the key countries in ways we haven't seen since the collapse of the soviet union. there are problems, cuba, venezuela have called them a tyranny. we need to deal with those regimes and free their people and i think across the hemisphere not just an america project it is increasingly a project of leaders of al the democratic countries. >> thank you. [applause] in this next part of the council, sexual harassment experts spoke about how companies can handle worker complaints and fix their corporate cultures. this is 25 minutes.
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>> good morning everyone. it's been a year of her and its revelations of workplace behavior as evidenced by some of the headlines we will be able to show you right now and many more coming across the screen now. workplace culture is something generally seen as more of a soft topic for ceos. but our panel here today has a different take on it and so today we are going to get you some free legal advice. tina you said workplace culture should seem more akin to sarbanes oxley. >> thank you for actually having the discussion because i think it is a really important audience tomp hear it. i started a practice after i
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left the white house on workplace culture as a law practice but not as an employment lawyer. i did 23 hours with a securities litigator and that is why i have a pretty intimate recollection of sarbanes-oxley implementati implementation. it is that rigor you say these things were soft tissues historically i think that's been one of the problems. we are 30 years since the case that mad made sexual-harassment unlawful under title vii. 30 years later we vote on sexual harassment training. i can probably quote you all of your policies verbatim because every company in america has pretty much the same one compared to the language of the supreme court case and it hasn't worked .-full-stop it. we havees conclusions despite several decades of efforts. my personal analysis on why that is if we've been just trading
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these issues like hr employment issues three levels down in the organization instead of bleeding from the top and being a corporate board governance issue and we've kind of stayed within the confines of w the law. >> would say something happens as one of our ceo come me is things happen no matter how great yourap policies are and wt can people do to make sure that when m it's all done you don't have a case? >> best practices. >> give us an example of something happens how should the company handle it in a way that is going to protect them from you? >> the number one thing in any company's leadership andd accountability so there has to be a tone of the to at the top n with to show we care about this issue and we take this issue
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seriously and when things 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, knows where she has to go or knows that there are options in place she can go to report and when she does go to report, her concerns are heard and taken seriously and they are dealt with promptly. there's an investigation immediately and it is thorough and fair and impartial and that she is being communicated with proper process. i hear from too many clients that they report something to hr or whatever mechanism is in place and they never hear anything again until they hear something akin to its been taken care of nothing ever happens so we would like to see more communication and then ultimately -- >> but what are you allowed to
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tell and when does it get messy? >> i agree with lisa. i've heard from many employees that hr is a lockbox. every time we went into it, nothing came back out. it's one of those problems using language like zero tolerance because it is a zero-tolerance everybody believes that everything is a fireable sensebl therefore 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 for example which nobody knows about. there's a lot of employees who say they don't want to see the guy get fired i just want the bad behavior to stop and if firing is the only way to heaven. heaven. employees told me i didn't report because he was a good leader for the company, just an overly bad actor in some respects. the problem with communication is the best practice historically in the law has been
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its all confidential. it's all confidential. it goes into hr, nothing comes back out because of confidentiality and that hason eroded the trust for many companies. given what the trust deficit in their hr process because people don't trust calling because they don't trust what will happen and to reestablish the trust we need to start to communicate and actually in many states they have laws that will protect you as an employer from providing truthful information to someone who has an interest in knowing it and in the victim reporting they had of interest so i think there's more leeway to provide more communication than historically people have believed in the employment investigations. but where the light is as difficult. we are still working that out. part of my analysis hasn't worked. we've got to realize we've got so many things we've got to figure out and one of them is how much do you tell one is beyond the victim how much do you tell your work group or the
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immediate supervisor. >> and how much do you tell investors. >> investors is pretty interesting we were talking backstage where is the materiality standard in this and i think we are learning in the seeing and some of thend news report is this your ceo and if he is on a 120 million dollar parachute you have to dismiss them. i think we are in a very rapidly changing landscape for that because historically you can see all the settlements over many years for the senior executives coming to light that were handled quietly without any disclosure. >> i want to go to a question to see how the audience feels they are doing on this subject which is do you feel your company pursues best practices for a safe and fair workplace and so
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far there are some things to be worked on much talk about the issue right now on a mandatory arbitration. the mandatory arbitration. google and facebook are backing away from it. is this an easy answer? >> i think it's something companies have looked to to say here's a place we can make a change and potentially make a difference and i think the intentions were good but there consequences. >> doing away with the arbitration opening up to the courts which was with some of those be? >> not every lawyer wants to go to court and the reasons i are when i was there we all did mandatory arbitration, the clauses were put in because it was needed on both sides of this cheaper, faster and the ability
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to reach an agreement so quickly not all of this is proven true [inaudible] but there are a lot of plaintiffs who are not going to want to come through. i am troubled by the notion that you can change this on arbitra arbitration when it's the tail end of the process. it's not one of the things that addresses how are we going to make sure sexual harassment doesn't occur inn the first plae and i think it got latched onto just because people were so outraged by some of the secret settlementbe that got reached it became kind of the flagship issue. i'm not sure that this is the one we should fix that and sexual harassment.
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>> and it can create problems and that's what i'm talking about in terms of unintended consequences because you're going to say it isn't okay for the victims of sexual harassme 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 so why is it okay in other contexts. i think 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 end to the structure of who should be diversity officer report and this is another thing from the walkout should that person report to the ceo, should there be an employee on the board of directors come a demand from the workers, what is the best practice now. >> i think part of what i said earlier you've got to elevate
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these issues if there is some other structure i think it is really important to have responsibility and accountability for these issues residing at the very top of your organization and whether that is through your corporate governance committee taking a look at these issues and your ceo or coo have been someone that reports to then have them send this in their portfolio i think that is the key both for the signal and on how important this is but also to manage it. we have not managed these issues. historically what the hr department was doing and this isn't to be critical this is what everybody did it because we thought it was best practice. cases were to be handled and contained, costs were to be contained so you took the case that came in, settled as quickly as you could and moved on. you don't put lisa as quickly as you could, contained the cost and moved on.
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nobody looked at patterns. i understand why the companies did what they did because nobody had a practice of looking to see we've now done ten settlements for the same issue for the same guy with the same sales office to see that i've got a pattern happening especially if you are running a large organization. >> that is how it had been treated but now we know in the business case for addressing the work culture in your businesses people are nothing to come work for you. maloney also looking at the values, looking at the news reports. i've had people tell me once they've been in the new news the had prospective employees say i'm not coming anymore. we are on a tight labor market. talent in this economy is a business in us what you need to make so i'm suggesting a different paradigm instead of the costs being ones we have to control and limit its time to make an investment and extend your self and investing with
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your culture should be, treated like a business compared up on the latest technology 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 diverse workforce not just because it's the right thing to do into the consumer base is diverse but you've got research from different business journals that say they make better options so -- >> we are going to go to questions in a minute but because the time is tight each of you has been involved in fascinating endeavor is tied to current. you were on the legal team for doctor blassey ford. can you share with us how she's doing and what you thinkse the impact has or hasn't been on those signature historic -- >> i can say she's doing pretty well trying to get back to
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normal life. she's still not living at home, she is receiving threats and it's not safe yet to be back at home. she still has a security detail that goes with her everywhere. i think the impact of what she did is significant and it came on the heels approximately a year after the weinstein matter exploded and the need to movement began and i think what she did was incredibly courageous. women who had been coming forward in the workplace looked at her and said what courage to come forward on a national sta stage. and i think she took the conversation and made it national in a way that it hadn't been before and moved us forward. i think that's important and that will resonate with the country and move us forward as a society. >> you are involved in this
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times up defense fund. this is for people who need legal help bringing their concerns forward. what are you learning in that experience? >> we started last january when the movement was announced by the by the women of hollywood and it was this tangible effort by that movement to provide structural change and assistance in this area. it is administered by them and raised $22 million counting at this point. >> when you have 3800 cases that have come forward since january, for those who pay legal bills in a $22 million isn't going to go real far but we are still increasing that effort but it was intended for anyone who is a victimnt of workplace harassment
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to find legal help and also anyone, and this has happened on such several occasions if you are someone who's spoken out about being a victim and you've are being sued by the person that you have accuse accused whs happened on more than one occasion. first was the director who sued a young production assistant years ago who wrote a blog post response to me. she has no action to legal fees. but it turns out low-income women in particular is a target of two thirds. farm workers, hotel workers who turns out with the effort in the place of employment low income workers actually don't have enough access because their recovery is so low onhe the wags and for the return attorneys recovery fee.
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and it turns out we didn't expecexpect there are just thous of low-income workers with no access. >> thanks for sharing that. let's go to questions and if you can please identify yourself. >> yes, tell us who you are. >> thank you for these fascinating 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 a affirmative action so i will give you an example. i will tell my executive meruiter you need to give more diverse candidates and start putting some of these resumes that represen represente individuals at the top of the pilepi and that is a legitimate thing for me to say that upon high hearing a person who happens to satisfy those criteria that person doesn't
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want to hear that they got special preferences because it devalues their talent and skill if they know thatt their skin color or gender was a factor in hiring so in terms of creating a culture, how do you avoid having an affirmative-action culture where as the company becomesac more diverse, people may feel like there's criteria other than talent or qualifications being brought into that? >> these are the kind of issues resonating far beyond. but please try to take that one on. >> you are starting a culture to say we want a diverse workforce we value it for all the reasons that the business reasons, the way that we want to reflect our consumers and the culture that wwe are in and you set up the criteria because we are not
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asking for -- the best thing to do is to present and make sure all people that are hiring are looking at a diverse slate but then the criteria is the same. we are not looking for different precarious. not everyone still judged by the same criteria back to you after you've made sure they are gender-neutral because remember there's a lothe of criteria is this someone i can take to the e board come is this someone aggressive enough but are actually not necessarily true gender natural criteria that are relevant to actual performance of the job they are confused with bias, so you want to make sure you're sitting criteria that are natural but then you should apply the criteria and let people know we are applying the criteria across the slate but we want them to be diverse and i think if you have diverse slates at the start what people made their own decisions at the back and i'm what you will over time become more diverse and we
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are holding everybod everybody e same standards because they think sure the standards are fair to everyone and that is the message that will designate. >> thank you for your efforts into "the wall street journal." have you seen outside of the sectors they seem to be doing a better job of this in the military, academia, government, not-for-profit? >> know is the short answer. these companies across the board that are doing it well there are many that need to do it better and there isn't one particular industry standing u out and leading the way.
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>> name a company that was measuring things while one reason i think there is so much difficulty across the board is we have treated these issues like legal liability limitatio limitations. it's probably been legal liability limitation training not to the culture you want. that's again was best practice to the past. ..
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. >> you are not required for go i have sat in the training for they say it's nice to do that for your coworker but you do not have to. it is probably not the culture and message you want to saide so i tell clients step outside your comfort zone and articulate standards for your workplace people you are not required to do so and that is the additional liability that serve my earlier point. >> but the bystander says to
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hit on her she was uncomfortable i am coming forward to report.po i should say under your code of conduct i retaliate you coming forward. >> that is a protection you're not required to give. . >> with the real standout company with all the best possible ways that we see? . >> trying to move in the right direction.
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and with the world liability how do we change the culture so the bad behavior is stopped? we don't tolerate bad behavior that i illegal behavior that is uncivil then you move the right direction. so trying to determine what are the bestac practices? . >> and that is in slightly different way that i have been working extra with the lodging association. in september s to announce and that they obfuscate together.
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and then to be mostly reported. and then investing in people. and then to reach across the competitors. that your employees are not safe and i think they realize that as an industry.


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