This year's Golden Globes, spurred by the #MeToo movement, has made it clear that despite ubiquitous human resources (HR) policies and training requirements, harassment and abuse in the workplace continues to be a major problem. The scale of the challenge is staggering. According to an NBC News and Wall Street Journal Poll, nearly half of working women in the US say they have experienced harassment in the workplace. This epidemic is not just an HR challenge, it is a human rights challenge.
As human rights consultants to business, we regularly help our clients identify and address risks related to discrimination and harassment. These risks may differ by degree, but they exist across all industries and all geographies. As part of our corporate human rights assessments, we have spoken to hotel workers who have been sexually abused by guests, apparel factory workers who have been harassed by supervisors and reviewed accusations against companies from corporate-level employees claiming assault.
Addressing these risks, however, remains a challenge. One potential barrier to creating safe workplaces for women is a belief that discrimination and harassment are issues that fall within the domain of HR rather than human rights.
This is a false binary. Article 23 of the Universal Declaration of Human Rights lays out the fundamental right to “just and favorable conditions of work” while Article 7 outlines the right to “equal protection against any discrimination.” To ensure that these human rights are respected for all employees, the role of HR departments must shift from a focus on managing risks to the employer to also mitigating the risks to employees’ rights. Indeed, this shift is a fundamental principle outlined in the UN Guiding Principles on Business and Human Rights (UNGPs), the preeminent global standard when it comes to corporate respect for human rights.
A clear example of how the application of the UNGPs to HR policies and practices could promote the realization of rights relates to corporate grievance mechanisms. Most companies have a type of grievance mechanism available to employees – whether it is an employee hotline, a whistleblower instrument or an escalation process. However, it appears that very few women are using them when discrimination or harassments occurs. One study found that of the 1 in 3 women ages 18 to 34 who have been sexually harassed at work, 71% did not report the incident. This presents a huge challenge for companies. If companies are unaware of an issue, how can they take steps to address it?
Sadly, the problem does not end there. For women who have reported instances of sexual harassment, many believe that the HR department failed to adequately respond. Some of the leading voices in the #MeToo movement, including Susan Fowler of Uber, Weinstein accusers and Fox News employees reported their experiences to HR and found that their concerns fell on deaf ears.
Trust in available grievance mechanisms diminishes if employees do not believe that their concerns will be taken seriously, or if they believe the HR department serves the employer interests rather than the employee’s.
The UNGPs provide clear guidance on how to effectively implement grievance mechanisms, recognizing that “a grievance mechanism can only serve its purpose if the people it is intended to serve know about it, trust it and are able to use it.” The UNGP effectiveness criteria outline the need for mechanisms to be legitimate, equitable and transparent and call on companies to ensure that settlements do not “preclude access to judicial or other non-judicial grievance mechanisms.” Assessing the degree to which existing mechanisms meet these criteria is an important first step in realizing women’s rights in the workplace.
The #MeToo movement reaffirms for us the importance of dialogue and collaboration between HR and human rights departments. Indeed, both companies and employees can benefit if companies increasingly:
- Mandate that human resource departments become human rights champions by recognizing that respecting worker rights is a business imperative. This can be done through robust human rights training and clear expectations set by senior leadership;
- Cross-reference and align corporate human rights policies with HR policies to ensure respect for human rights for all employees;
- Ensure all policies are rights-compatible, specifically by eliminating barriers to judicial remedy for victims of harassment and abuse, such as forced arbitration clauses;
- Involve human resource departments in human rights due diligence efforts, especially in labor markets where human rights risks are significant.
These steps will not solve all instances of discrimination and harassment in the workplace, but they will contribute considerably to a culture shift across companies. We are heartened to see some of our clients start to take steps to strengthen the human rights protections of their own employees. Microsoft, for example, recently became the first Fortune 100 company to endorse legislation to end forced arbitration clauses in cases involving sexual harassment. This step not only helps protect potential victims within their company, but also supports Microsoft’s strong commitment to human rights as outlined in their Global Human Rights Statement.
We believe human resources departments can be effective champions for advancing human rights within companies. And in many cases, all the resources they need to do so can be found down the hall with their colleagues in human rights.