KEVIN F. HALLOCK: ILR School. Since its founding in 1945, the ILR School has been addressing, through research, education, and outreach, the most pressing and challenging workplace issues of the day. Today's topic, sexual harassment at work, is one of those most challenging topics.
The turnout here today is testament to the importance and urgency of this issue. A special welcome to our distinguished guests who have taken time out of their busy schedules to be with us today. To begin today, I'm honored to introduce Cornell's 14th president, Martha E. Pollack.
President Pollack is a professor of computer science, information science, and linguistics. She is a remarkable person. She's brilliant, driven, and inspiring.
As president, she works to sustain and enhance Cornell's academic distinction to support a culture of educational verve, and to ensure that Cornell fulfills its civic responsibilities. Among her highest priorities are standing up for knowledge, evidence, and reason, protecting freedom of expression, and creating a community that is truly diverse, inclusive, and egalitarian. It is these priorities that underpin our event here today.
In addition to President Pollack's conversation with Senator Gillibrand, we'll have a panel of four distinguished practitioners and scholars, who will discuss the challenges of workplace sexual harassment through the lens of employment law and workplace practice. We'll save the last 15 minutes of our time today for questions from the audience.
This event is happening because of many beyond those who you'll see on the stage today. Special thanks to Diane Rosen, Cornell CHRO Mary Opperman, the Catherwood Library, Linda Barrington, and Tom Addonizio, and most importantly, all those who pushed this issue to the daylight and the headlines. Please join me now in welcoming President Pollack.
MARTHA E. POLLACK: Thank you, Dean Hallock, and welcome, everyone. It is an honor and a great pleasure to welcome Kirsten Gillibrand back to Cornell to be part of this important discussion of sexual harassment and assault in the workplace. Trained as an attorney and serving as US Senator for the state of New York since 2009, Kirsten Gillibrand led the effort to repeal the Don't Ask, Don't Tell policy that banned gays from serving openly in the military.
She wrote the STOCK Act, which made it illegal for members of Congress to financially benefit from inside information, and she won the long fight to provide permanent health care and compensation to the 9/11 first responders and community survivors who are sick with diseases caused by the toxins at Ground Zero.
Senator Gillibrand has also pushed for legislation on raising the minimum wage, childcare affordability, universal pre-K education, and equal work for equal pay. Of special interest for those of us here today, she has been an advocate for legislation on reforming the justice system for sexual assault survivors in the military and on college campuses. Senator Gillibrand, we're looking forward to your presentation and the conversation that will follow.
Thank you all.
KIRSTEN GILLIBRAND: It's wonderful to see so many people here-- students, community members, friends. It's delightful. I want to thank President Martha Pollack for her leadership here at Cornell, for her vision, for her dedication-- it makes a huge difference-- as well as Dean Kevin Hallock for his leadership, for his introductory remarks, as well. And I want to thank the Industrial Labor Relations School for all of your outstanding efforts related to workplace harassment issues.
I want to talk to you today a little bit about why I think this is so important that we are having this conversation about sexual assault and sexual harassment in the workplace. I believe fundamentally that we should care about one another. Sexual assault and harassment comes from a place where that principle simply does not exist. And for too many institutions that protect predators, it shows that they fundamentally do not value women.
Whether it's the US military, a college campus, the NFL, or corporate America, survivors are often disbelieved, blamed, and even retaliated against. This stops when we value all people, when we value women and men who are assaulted or harassed. This stops when we listen, when we believe them, when we create a system where justice is actually possible.
My job is to lift up their voices so they can actually fight for justice, because one of the things that the #MeToo movement has shown us over the last year is that sexual harassment and sexual assault are far more pervasive in society than many people have realized. They're not just in places that have received all of the attention and all of the headlines, like Hollywood, sports, the military, politics, or the media.
These problems also exist in areas where there is no spotlight, where there is far less attention from the press, and where are the risk posed by just speaking out is far too great for people to take, places like restaurants or farms, factories, hotels, even office buildings in big corporations and in small businesses. And we've seen this over and over again in institutions all around the country, a culture where power and fear keep sexual assault and sexual harassment in the shadows.
Harassment can be debilitating. It can be demoralizing, destructive to a person who's just trying to do their job and provide for their family. It can inhibit somebody's ability to do their best work, to excel, to earn a promotion, or even stay employed. It can also create lasting scars, reduce self-confidence, and destroy trust and morale.
Fundamentally, it's toxic to an organization, and it can ruin people's lives. So what can we do? As students, as leaders, as teachers, what can we do to change this? First, when someone speaks out about harassment or abuse, listen to them. Our schools and our businesses must take these kinds of claims seriously, and investigate them fairly and thoroughly.
Second, we need to change the climate so that people are not afraid to come forward, where they know a fair hearing and even justice is possible. Workplaces and schools should never protect predators. They shouldn't protect predators even when they're powerful, especially if they're powerful.
And most of all-- and this is a global message-- we must value women. This means equal pay for equal work. It means equal opportunity for advancement and promotion. It means having a real paid leave program, supporting legislation to do that nationally, and recognize that diversity is a strength in society and in business. And it means stopping sexual harassment.
So I'm doing everything I can in Congress to make sure that at least Congress is taking this problem seriously. I have two bipartisan bills in the Senate right now that I think will go a long way to solving this problem, and I'm working hard to get colleagues on both sides of the aisle to support them.
The first is my bill to end forced arbitration when harassment takes place in the workplace. As more and more stories have been coming out, one of the most painful details is that, even after employees experience such horrible treatment at work, they are forbidden from speaking out about it because of forced arbitration clauses and non-disclosure agreements.
When a company has a forced arbitration policy, it means that, if a worker is sexually harassed or assaulted in the workplace, they're giving up their constitutional right to a jury trial. They're often paired with non-disclosure agreements, which gives up their rights to speak about it publicly, even to their other work colleagues. And after enduring all this, they're expected to go back to work and keep doing their jobs as if nothing ever happened to them. So we need to finally end forced arbitration agreements in the workplace.
I have another bill that I'm fighting to pass that would address sexual harassment in Congress itself. Elected officials should be held to the highest standards, not the lowest, and Congress needs to show the country that it's taking this problem of sexual harassment seriously. First--
First, no taxpayer-funded settlements. And second, the survivor should decide whether to be public or not. So I'm urging my colleagues to pass our harassment bill. And Congress does need to finally send a message that we are taking this problem seriously, showing leadership, not making excuses, and making it clear that we won't tolerate it anymore.
Unfortunately, we found out today that the House and Senate leadership are not going to include these reforms in the must-pass omnibus bill. Now, it was in the bill, and leadership took it out of the bill. It's already passed the House of Representatives unanimously.
So I'm extremely disappointed about this decision, because it shows us that the House and Senate leadership are not taking this issue seriously, they're not showing the leadership that they should, and they're not committed to solving the problem. I think it's inexcusable, and I think Congress must do better.
So now we're going to turn this conversation to President Pollack, and maybe some questions from you all.
MARTHA E. POLLACK: So Senator Gillibrand, thank you again for spending some time with us this afternoon talking about sexual harassment in the workplace. Everyone is here today, I think, because they care about this issue. Tell me a little bit more about why now you think is the right time to have this conversation. Why is it that you've now chosen to focus so much energy on this?
KIRSTEN GILLIBRAND: This is something I've been working on for the past five years in Congress, because a lot of issues came to my attention that were happening in certain places. The first issue that I learned about was sexual assault in the military. And I learned about it because a friend of mine said, you need to look into this. And she handed me a movie that she had just made.
And it was called The Invisible War. And that film, if you watch it, is shattering. It is so upsetting, because what you have are men and women who are assaulted the military who report the assaults. Not only are they disbelieved, but then they're retaliated against for reporting, and often they're the ones that are kicked out of the military. So the entire system is set up to actually protect predators.
And that made me so angry and so frustrated that it just set me on this course that I wanted to figure out why can't we deal with this issue effectively. Why aren't we effectively prosecuting predators, putting them in jail? Why are excuses constantly made? And in that context, I found out really fast that the entire institution is set up to protect those predators, because they're valued more than the survivors. They don't value women in the military in the way they should. It's just as plain as that.
After working on this issue for a couple of years, some students came to my office and said, will you please meet with us, because this has happened to us on our college campuses. And these two young women were from Chapel Hill. Not only were they both raped, but they were retaliated against for reporting it, blamed, and never got any measure of justice. And so I began to learn a lot about that in that context.
The #MeToo movement I think really gathered steam this past year because we have a president who has more than a dozen credible accusations of sexual assault and sexual harassment. And I think watching that happen in our country inspired a lot of women and men to come forward to tell their stories. And that's why the #MeToo movement has become so powerful, where we can hold predators in major industries who are famous accountable by calling them out, by naming them, and by seeking justice.
So now I'm trying to amplify those voices and begin to look at other places, like Congress, the fact that, if you are a member of Congress and you sexually harass someone that works for you, if you reach a settlement, the taxpayer pays for it. That's outrageous. The process in and of itself is set up so that person never actually comes forward. They make you do about a month of mandatory counseling, followed by a month of mandatory mediation, followed by a month of cooling off, and then you can actually file your complaint. So it's very distressing because, in my own workplace, there is not really room for justice. And so we're trying to change those rules.
MARTHA E. POLLACK: Thank you. So Professor Alex Colvin, who's going to be on the panel following us, has published recent work reporting that, among private sector non-union employees, 56.2% are subject to mandatory arbitration procedures, and 65.1% of companies with more than 1,000 employees have mandatory arbitration procedures.
You've talked about the importance of this, and how you want to address it through legislation. But you know, the wheels of the legislative process move so slowly. What are the current prospects for change?
KIRSTEN GILLIBRAND: So the good news is it's already a bipartisan bill. Senator Lindsey Graham is taking the lead as the Republican in the Senate. We have a bipartisan bill in the House. So this is the kind of bill that I think should be able to pass. Right now, the Chamber of Commerce is opposing it. So we have to get business leaders to come out and say this is what's right for my business, this is what's right for the economy. And we are working on getting those voices to be elevated and be part of the debate.
But I'm optimistic because it's wrong that you, just by signing an employment agreement, you actually sign away your constitutional right to a jury trial. That's, I think, morally wrong. And these arbitration clauses often paired with non-disclosure agreements, which then says you can't talk about it, even to warn a colleague. Be careful of so-and-so, I've been harassed nonstop. I mean, that's really important for you to be able to tell your colleagues, you know, what happened to you. And it makes it hard for an employee to even stay employed. So I think it's really important that we just keep elevating this issue and trying to get that bill passed.
MARTHA E. POLLACK: Thank you. Tell us more about bipartisanship. I mean, I think there is consensus that, right now, the divide between the political parties is bigger than it's been in, really, recent times. You've found some bipartisanship support around the issue of sexual harassment. Tell me why, and tell me whether you think there are ways to have bipartisanship spread to other issues.
KIRSTEN GILLIBRAND: So interestingly, I have a lot of bipartisan support for the three bills I mentioned-- the sexual assault in the military, the sexual assault on college campuses, and ending sexual harassment in Congress. Every single one of those bills has multiple Republicans on it. I even have Ted Cruz on my sexual assault in the military bill, and Rand Paul. I have Marco Rubio on my sexual assault on college campus bill, and I'm working on this arbitration clause bill with Lindsey Graham and other Republicans.
So it is obviously a nonpartisan issue. People are assaulted and harassed regardless of your political party. Arguably, everybody should care about it, whether you're a Democrat or a Republican. And I think a lot of people do. So I do think this is something that we could actually have bipartisan support on.
I think all issues can be bipartisan. I have over two dozen bills. Every one of them, except for I think one, is bipartisan. Which is paid family leave, by the way. And I will find a Republican on that bill.
So I am actually hopeful. I think, even in this era of Trump, members of the Senate want to get things done because they may not agree with the president on all these things. And so they're eager to co-sponsor bills. We've had a lot of dysfunction, though, in the Senate, and obvious bipartisan bills aren't getting votes, like the one I just mentioned, where Paul Ryan and Senator McConnell for some reason do not think it should be voted on and shouldn't be part of the omnibus bill. That's upsetting. So I'm going to work hard to try to have a different conversation about that bill.
MARTHA E. POLLACK: One last question for you. What impact do you see the #MeToo movement having in launching women into political or other kinds of leadership roles?
KIRSTEN GILLIBRAND: Well, I think there's a moment in history we have right now that's unique. I don't know, did anybody participate in any of the women's marches around the globe?
So those parties were pretty amazing, and they were a call to action by America's women to say we need to be heard, and we disagree with this president. And what was so powerful about the Women's March is that it was intersectional. You could march for Black Lives Matter, you could march for women's reproductive freedom, or you could march for clean air, clean water, or you could march for LGBTQ equality. It was your issue, whatever you wanted to march for. You wrote your sign, and you marched.
And that was transformational because, for a lot of women, that was the first time they ever made a sign, first time they ever carried it around and marched. And that was important because it showed women how important their voices are, and it showed if we work collectively together, with millions of women and men responding across the country, we could do great things. And that activism has really continued into this election cycle.
Those special elections, we were able to elect a candidate in Alabama, we were able to elect a candidate in Pennsylvania, and a lot of local candidates in every state in between in special elections and local elections. And a lot of people were running, and women are running for the first time ever. In fact, EMILY's List would normally be trading about 1,000 candidates. Last I heard, they're trading over 25,000 candidates. So it's remarkable. In Congress alone, there's 400 women running for Congress.
So women are riled up, and angry and frustrated, and willing to take the risks of running, whereas they might not have historically chosen to do that form of public service. They might do something else-- work at a charity, work at a not-for-profit-- but to run seemed harder, seemed-- you know, you'd have to go into that gauntlet of negative ads and rough-and-tumble campaigning, and that's not something a lot of women choose for themselves. But in this environment, they're taking those risks, and they're putting their comfort behind them and saying, I'm going to do this anyway. And that's brilliant, that's powerful and important.
And I think all of that has continued to fuel not only #MeToo, but just this global activism, the fact that women are showing up to town-- everyone's showing at town halls, that they're calling their senators, calling their congressmen, writing letters to the editor, using social media. And the more we amplify our voices, the more we can actually get done.
And so I think, for a lot of people, there's a lot of change coming in 2018. I think a lot of incumbents will lose their seats because they're not representing our values and what we think is most important, whether it's on gun violence, whether it's on #MeToo issues, whether it's on the environment, whether it's on LGBTQ issues.
This president's really taken on basic civil rights and civil liberties. He's really undermined basic institutions, whether it's freedom of press or the independence of the judiciary or independence of the Department of Justice. And I think that makes people angry and frustrated, and pushes them to do more. So I see so much hope in the future, and a lot of opportunity for all of us.
MARTHA E. POLLACK: Thank you, Senator Gillibrand.
We really appreciate you joining us. And I want you to know that, in academia, we stand ready to be your partner. We have experts and expertise to do the kind of research that can inform policy decisions. And I hope you'll continue to call on us for help.
KIRSTEN GILLIBRAND: Absolutely.
MARTHA E. POLLACK: Thank you again for coming.
KIRSTEN GILLIBRAND: And thank you all for being here. I really appreciate you coming out today. Thank you.
JAMIE MORGENSTERN: Thank you, Senator Gillibrand and President Pollack. My name is Jamie Morgenstern, also co-president of the ILR School Student Government Association. Our discussion will now turn to the perspectives of employment law and workplace practice. Joining us for a panel discussion will be, seated on your left, Lisa Nishii, Vice Provost for Undergraduate Education for Cornell University and Associate Professor, Human Resource Studies, Cornell ILR School, and Mark Brossman, ILR alumnus and partner at Schulte Roth & Zabel.
And seated on your right, Alexander Colvin, Associate Dean for Academic Affairs, Diversity, and Faculty Development, and Martin F. Scheinman Professor of Conflict Resolution, Cornell ILR School. And Christine Pambianchi, ILR alumna and Senior Vice President, Human Resources, Corning Inc. Dean Hallock will moderate.
As our expert panel comes to the stage, I'd like to remind you that we'll save 10 to 15 minutes at the end of the panel for Q&A. At that time, we will ask those with questions to queue up at the microphone that will be placed in the audience aisle. Any questions must be kept very brief, on the order of 15 to 30 seconds, so please write your questions down and read it to make sure you stay within that time limit.
Also, if you're a Cornell student and wanting to attend the practical skills conversation with Diane Rosen, Mark Brossman, and Mary Opperman at 4:30 in 217 Ives, please exit the auditorium doors to your right, walk past the main entrance for the Statler Hotel, and bear slightly right. You'll see a student with a sign directing you to the best door to enter.
Please welcome again ILR Dean Kevin Hallock, joined by our expert panel.
KEVIN F. HALLOCK: Thank you, Jamie. I hope everyone can hear me. Can you hear me OK?
SPEAKER 1: No, you don't seem on.
KEVIN F. HALLOCK: OK?
SPEAKER 2: No.
KEVIN F. HALLOCK: How about now?
SPEAKER 3: Yes.
KEVIN F. HALLOCK: All right, great.
So thanks, everyone, for coming, again. And I know all four of Christie, Mark, Alex, and Lisa. I look forward to this. There's a lot to say from a lot of different perspectives. We have four remarkable people here who know a lot about this topic.
There are four main areas that I'd like to talk about. But to start, what I'd like to do, before we get into them, is to see if anyone wants to react to what the senator just had to say from a policy perspective. Were there aspects of employment law or workplace practice that policymakers generally, do you think, need to understand better with regard to harassment? What immediate reactions might you have, if anyone?
MARK BROSSMAN: start. In the workplace, I will say we've been dealing with sexual harassment in the workplace for at least 40 years. I wrote an article about it in 1980, when it was first becoming recognized by the judiciary. And there's a range of behavior. So Harvey Weinstein is-- you know, his behavior is monstrous behavior, and it's at one extreme. And it includes rape and sexual abuse and potential criminal violations.
On the other end of the sort of continuum is, you know, sort of what we call leering, somebody looks at you in a way you don't like, to tells a joke you may not like, to various degrees of maybe, you know, massaging, getting too close to you. So there's a range of activity which we see all the time in the workplace, and not all of those activities warrant immediate discharge. And I think that's one of the things which I think is worrisome from a practitioner's perspective.
KEVIN F. HALLOCK: OK, so let me start with asking, maybe to Mark and Christie to begin, what is sexual harassment at work, from a legal perspective and then maybe from a practical perspective in a company?
MARK BROSSMAN: I'll start with the legal perspective, very quickly, but this could be a long conversation. Basically, sexual harassment, harassment at work-- there's a bunch of areas of protected activity. You can't be discriminated against by law. There's Federal laws, state laws, New York City has a statute. So you know, you have to know where you are and what your applicable statute is.
But the laws basically protect you from discrimination for protected classifications, such as age, race, sex, religion, you know, sort of fill in the blank. There's plenty of protections that are out there. Sexual harassment has been carved out of Title VII of the Civil Rights Act to protect people who are harassed because of their sex.
And obviously, I think all of us are united in wanting people to go to work and not be harassed based on any protected classification, but sexual harassment is particularly terrible because it has involved touching and, you know, we've talked about bad sexual sort of behavior.
There's two different types of sexual harassment that have been recognized by the courts. One is co-workers, and one is supervisors. And supervisors basically have been held responsible for quid pro quo, have sex with me or you won't get promoted, have sex with me or you won't go on the good trip, work trip, or whatever it might be. Submission to such conduct is either explicitly or implicitly a term or condition of somebody's employment, and submission to or rejection by an individual is used as the basis of employment decisions. Obviously, terrible and illegal and not protected.
Hostile work environment is basically somebody goes to work, and they're subject to an intimidating, hostile, or offensive work environment. And there, the courts in New York, at least, New York state, in the federal courts have basically said it has to be severe and pervasive. It's not a one-time will you go out with me, and you're necessarily in trouble. New York City law is actually broader. One time, you can get in trouble. But generally, the courts have carved out for hostile environment that it has to be severe and pervasive. Those are the words of art.
CHRISTINE PAMBIANCHI: just briefly, as a practitioner, I would agree those are the two main tenets, either quid pro quo or disparate and hostile work environments, where people, based on their gender slash and then sex, are treated differently.
I've been practicing HR for 28 years. I graduated here in 1990. Very little quid pro quo incidences during my 28-year career, and a much greater effort to make sure that the workplace environment did not unintentionally create an environment where women were, or people were treated differently based on sexual intentions. I think what's so shocking about the events that you heard Senator Gillibrand speak about is this bringing forth these significant examples of quid pro quo sexual harassment in the workplace, which many of us I think had worked hard to stamp out decades ago.
KEVIN F. HALLOCK: I wonder about how this aligns, this sort of discussion of definitions, with the way sexual harassment is defined in the academic literature.
LISA NISHII: I think it's similar. In the academic literature, there are essentially three types. So one is the quid pro quo, sexual coercion, and then another form of sexual harassment, which is unwanted sexual attention. So it may not be tied to some type of job benefits, but it's still sexualized in nature. And then the third is referred to as gender harassment. So this is the kind of degrading attitudes, the hostile work environment.
And kind of to Christy's point, right now there's so much media attention on the sexualized forms of harassment. And I think that disguises, to some extent, the fact that those forms are a lot less common, and it's gender harassment, so this kind of hostile work environment, that is much more pervasive. And there's a good amount of research that shows that, even though the sexualized forms tend to be more traumatic, they also tend to be less frequent, that gender harassment, which tends to be more frequent, lower in intensity, can end up having similarly negative effects for women. So it's important that we don't lose sight of the gender harassment, as well.
KEVIN F. HALLOCK: I want to ask about cultural differences in workplaces around the world. And around the world, so they don't just have to be international differences in culture, but cultural differences. Even in the US, we have wide cultural differences in corporate cultures. What do you think about the idea that some have suggested that being inclusive of cultural differences is at odds with the strict definitions of harassment?
CHRISTINE PAMBIANCHI: I work at Corning Inc. We have 46,000 people worldwide. We operate over 70 manufacturing facilities around the world. Many of these employees are in different cultures. And we have a basic premise of what our corporate values are and what the expected behaviors are in the workplace.
And so regardless of local culture or norms-- there are many parts of the world where women don't have the same rights, and some of this that's legislated here is not legislated in those countries. And nonetheless, we say, if you're wearing a Corning badge and you're in our facilities, these are our behavior expectations. And we manage it accordingly. And we do a lot of training and a lot of expectation management for both employees and management as to what we expect.
MARK BROSSMAN: I just did a training for a European spirits company. And when we talked about what the law is in the United States, they were like, that's not what we do in France. We have very different sort of standards. But that's what's great about the law. The law is the law, and cultural differences in the United States really don't-- it's not a defense to say I'm Italian and I like to hug and kiss you, which I've heard as a defense. It doesn't fly. The law is very specific.
One thing I want to add-- and it goes to Lisa's point a little bit-- a lot of companies have civility policies, which are broader than the law. I investigate a lot of sexual harassment or harassment allegations, and we may conclude it doesn't violate the law, but we may conclude also that it violates the company's values and mores, because we don't want anybody to go to work and be in a situation where they're uncomfortable. It's not good HR, it's not good for productivity, it's just not good. And so most companies now that I deal with have policies that are broader than what the law requires for sexual harassment.
Last point. Most companies have sexual harassment policies because the Supreme Court has rendered a bunch of decisions where, if you have one, it's an affirmative defense. If we have a policy and someone doesn't complain, which we'll talk about later, about why people don't complain, but if they don't complain, generally that's an affirmative defense for the company. We have a policy, we've trained people, they didn't come forward and complain, therefore we shouldn't be liable. And for many harassment cases, that's an effective defense legally. So almost every company has a policy, every company does training. Whether or not it's effective is--
KEVIN F. HALLOCK: That's the thing.
MARK BROSSMAN: --a topic that we will be discussing, I understand.
KEVIN F. HALLOCK: If there's one standard for the law and there is a higher standard of policy, it seems that not enough companies either have the policy, even though it may be even economically reasonable to do so, or they're not following it. And I think that we may get into that a little bit later.
Another thing I wanted to ask about with cultural is generational differences. So last weekend-- I think it was on Saturday-- the ILR Women's Caucus held a conference on #MeToo, TimesUp, what's next. There they are. And the conversation raised a general-- one of the panelists, who is an alumna from the 1950s, talked about generational differences, from the workforce in the 1950s to where harassment is today, and felt that things were just much different then.
As you know, though, in the 1950s and the 1960s, workplaces were much more segregated by gender than they are today. Are there sensitivities to or wisdom in every generation? And I wonder if you are dealing with these generational issues from a practical point of view, either of you on this side. You two are welcome to chime in, too, but you're next, in the next section.
CHRISTINE PAMBIANCHI: I'd just like to offer my own experience as a testimonial. And I could talk a little bit about it, and then I'll pass it over to Mark. So I graduated here in 1990, and embarrassingly, having spent four years at the ILR School, which has the best faculty and curriculum available on women in the workplace, I didn't take a single class on women in the workplace, because I thought that was all fixed in the '60s. And I didn't realize it was an issue.
And I went to work in 1990, and I wanted to work in the manufacturing sector. And I was, at 21 years old, the only exempt payroll woman in the six locations that I was the HR manager for. And I couldn't believe it. And I called back to my profs here, and I was like, where'd all the women go? Because I had, like, 50% of my classmates were women. Well, they didn't go into the industrial sector, and they didn't go into manufacturing, and they didn't go into the kind of jobs I was going into.
And I've spent the last 28 years in professions and industry that have, you know, cracking the high 20s percent women. And so I think my experience-- I'm a Gen Xer, born in '68-- my experience was, oh, I thought the women before me solved that problem. I think the younger women today coming into the workplace may also not realize that there's still a lot of work to be done. And we have to work together with our male and other colleagues to continue to strive for the kind of workplace that we will be proud of, where all people are equal.
MARK BROSSMAN: My quick story is when I wrote this article in 1980, it was for a partner who had a column in something called the National Law Journal. I would write the column, and he would get his picture and name in the newspaper. But he would mark up my draft. And I did an article, and the markup was he added, of course it's not sexual harassment if I tell my secretary, my, you look beautiful today, I love your perfume, your hairstyle is beautiful. And I had to go to him as a young lawyer and say, I think that's problematic. I don't think that's what the law is getting it.
I always anticipated, however, Kevin, going to your question, that, as generations shifted, as the younger generation got into the workplace, that this problem would dissipate, because the younger generation has a much better sort of training as to dealing with each other, as opposed to sort of a sexist environment that the older generation may have experienced. It has not happened. I have not seen that. Effectively, this is still a problem, and it's probably a bigger problem than it's ever been before.
LISA NISHII: Yeah, I hope that what this movement will do is-- so research shows pretty clearly that, when you ask women, how do you think you would respond if you experienced sexual harassment, and almost uniformly women say I would feel angry, and I'd confront the person. It's wrong. But then, when it actually happens, the reaction is quite different, right? There's fear and a reluctance to speak up.
This paralysis that people feel in the moment often takes them by surprise. And so the hope is that, by seeing all these people speaking up, that we can close that gap, and people will feel more comfortable speaking up, because we really-- a lot of the organizational structures are predicated on the assumption that people will speak up. It's all about reporting structures, and then responses when people do report something. But that's all conditional on people actually feeling comfortable speaking up.
MARTHA E. POLLACK: I'm going to ask two more questions in this section, and then I'm going to switch over. One of them is I just think an issue that we ought to address here, even if we think we know the answer is obvious. And I'm going to address it to Mark. And that is, given boundaries and obvious power differentials, what is your thinking, from a legal perspective, on whether it's ever defensible that the interaction is consensual?
MARK BROSSMAN: Yeah, so let me just say this. In a lot of the press that's come out, the defense has been the sex was consensual. To me, that means nothing. If it's not consensual, it's rape, and you go to jail. By definition, it better be consensual. Consensual isn't the test. The test is whether it's welcome. And one of the things that we've learned over the years, particularly with a power imbalance in the workplace, is that people with power can take advantage of people without power in the workplace.
And so I've been giving a lot of thought to this, because a lot of companies have policies that don't prohibit romantic relationships in the workplace. You know, a lot of debate about that for years, should we prohibit romantic-- and the theory has been we're adults, and adults should be able to behave the way that they need to behave. But normally, with supervisors, the policies are if the supervisor is having a relationship with somebody, they'd better report it so we can make sure the supervisor doesn't exercise power in assignments, in wage increases. So get rid of the quid pro quo elements of the relationship.
The problem with that has always been that most of these relationships end, and you're still in the workplace. And by definition, it's problematic. The problem with that is, by the time they come forward, they're already in a relationship. And to get into that relationship, something has had to have happened where they've utilized their power. And the problem with that is we see repeated cases where it's years later where somebody comes forward and say, yeah, I had a consensual relationship with X, but now I realize it was because of the power imbalance, and they really took advantage of me and they shouldn't have done it.
So you know, we're fans-- and we're still sort of trying-- the world's changing right now in ways that are important, but this is one where I don't know where we're going to end up. But saying no sex between supervisors and subordinates--
CHRISTINE PAMBIANCHI: Not realistic.
MARK BROSSMAN: --may be the best legal place--
KEVIN F. HALLOCK: So Christie--
MARK BROSSMAN: --for a lot of reasons.
KEVIN F. HALLOCK: --can you comment on the sort of banning relationships issue?
CHRISTINE PAMBIANCHI: Yeah, so I don't think that's particularly realistic and I wouldn't advocate that, because if you look at how much we all work and how many men and women are in the workplace, people spend most of their lives at work. I'm sorry if that's bad news for all of you, but on a 40-hour a week, you're spending 2,080 hours a week at work, and I don't know, I'd love to have a 40-hour workweek.
So I think that this is a real issue that companies have to figure out. And I think yes, it would be easy to have a clean policy, but you're just setting up a policy that people are going to fail at. So what you have to do instead is do education, have policy, and then have really good channels to manage it.
What I'd talk about, though-- this is a big boardroom discussion, C-suite discussion, management discussion right now. And I deal with all the code of conduct complaints, I have the HR department that handles these things in the field. In the end, it's not that hard. Employees can do what they want to do. But when they engage in behavior that creates risk for the company, the company itself is an entity, an institution held accountable for damages, for reputational harm, et cetera. And the company will protect the company and the employees in it that abide by its values and such.
So what we talk to people about is of course you're welcome to have relationships with your colleagues. We want people to have lifetime employment. We're in a really small town. We have a lot of dual career couples, I myself being one of them. And so what we try to do, though, is educate people that, however, you need to understand, if that relationship goes south-- and as Mark points out, that happens-- you are responsible that that doesn't come into the workplace. Because if it comes into the workplace, now you, as an employee, you have a workplace problem. You may or may not be able to keep working for us, or in those positions.
And so I think we can delineate the argument more cleanly. And the company, I don't have to get involved in who broke up with who and who did what. I don't actually care. But if you bring it into the workplace, then I have to care. And my number one issue is going to be I have to protect Corning Inc, and I have to protect the employees that are working for Corning Inc to live and carry out our mission every day.
KEVIN F. HALLOCK: OK. Alex, it's your turn.
ALEXANDER COLVIN: OK.
KEVIN F. HALLOCK: So you've now been-- your work on mandatory employment arbitration has been talked about in the national press, by the president of Cornell, by Samantha Bee. He's been everywhere. So can you tell us-- you've talked about mandatory employment arbitration. Can you explain what it really is, and how it matters in sexual harassment complaints?
ALEXANDER COLVIN: Sure. So arbitration is something that's been around for quite a while. And in a lot of settings, it works quite well. So unions and management arbitrate disputes in the system that's been going on for decades, and both sides are generally pretty happy with how it works. What's become really controversial is now we end up in a lot of arbitration agreements that we don't really have much choice about.
So the classic example is probably everybody in this room has agreed to arbitrate disputes with your cell phone carrier, be it Verizon or AT&T. It's in those terms and conditions that none of us read. I don't read it. Nobody reads these, right? But it's in there. And so you can't actually go to court to sue AT&T or Verizon, no matter how crappy the service is.
This gets even more problematic, though, when we're talking about the workplace, where you show up at your first day of the job and there's a bunch of paperwork to be signed. You sign the stuff because you want the job, and in that stack of paperwork is an agreement that you're going to arbitrate your claims against the company, if you have any.
And that includes your civil rights claims. So race, age, religion, and gender discrimination claims. Sexual harassment is included in that. That means that if, a few years down the road, you are subject to sexual harassment, you want to sue the company, you can't sue the company. You have to go to arbitration, to a forum that the company's designated in this form that you signed a few years ago.
And that's where it gets really problematic. That's why it's called mandatory, right? You don't really have a choice. And you're left hoping, is this going to be a place where I can actually bring my sexual harassment claim. The evidence suggests that it's not necessarily going to be as friendly a forum for an employee to bring a claim as if they're in court.
KEVIN F. HALLOCK: And can you describe a little bit about what actually happens in [INAUDIBLE]?
ALEXANDER COLVIN: Yeah. So arbitration is a private forum. So you're not going to a public courtroom, you're going to an arbitration hearing that's in some conference room somewhere. There will often be non-disclosure rules around it so that you can't talk about what happened in arbitration. A good example of this-- so Samantha Bee, as Kevin mentioned, did this pretty interesting segment on arbitration, and she was interviewing Gretchen Carlson. Some of you may know her. She was a Fox News personality who had a sexual harassment claim against Fox News.
But she'd signed one of these arbitration agreements, and so she had to go to arbitration instead of in the courts. And she couldn't say what happened there. So she's doing this interview, and she's like, I can't say, I can't say what happened. Now, lots of stuff leaked out because it's Fox News and media and so on, but this happens to anybody in a sexual harassment case in mandatory arbitration. They can't say what's going on in arbitration.
And unfortunately, the research we've done suggests that employees aren't doing as well. They're not winning as much, they're not getting the damages. And so that means that, essentially, the employer then is a little bit off the hook. They're not worried in the way that Mark was sort of talking about, that he has to go to investigate these claims, if there's been a big lawsuit. They're not worried about the lawsuit anymore as much because of these mandatory arbitration agreements.
And they're really widespread. As Senator Gillibrand mentioned, I estimate around 60 million employees have signed these things. About half, just a little over half the workforce has signed these agreements. So those of you who are students, 50/50 chance you're going to have to sign one of these when you get out of here.
KEVIN F. HALLOCK: What about unionized companies that seem less likely to have mandatory arbitration? And don't unions have mandatory procedures of their own that limit the employee?
ALEXANDER COLVIN: Yeah, so unionized workplaces are really different. Unions do use arbitration for collective agreements, and they represent workers in that setting, but they generally aren't willing to kind of sign away civil rights claims, like sexual harassment. So in a typical union workplace, you know, you can proceed with your grievance against the company through this arbitration procedure or you can choose to go to court and make your Civil Rights Act-based claim, saying, hey, I was sexually harassed, that violates my rights, I can go to court. So the unionized setting, you get kind of both things operating in parallel. So it's really different from what goes on when you don't have a union in place.
KEVIN F. HALLOCK: OK.
CHRISTINE PAMBIANCHI: And can I add one thing to that?
KEVIN F. HALLOCK: Sure.
CHRISTINE PAMBIANCHI: So one of the things that's also beneficial is, in a union environment, first of all, the employees are electing the union representatives. They also then participate in things they want negotiated into the union contract. And the contract itself typically stipulates how an arbitrator is selected to resolve company and union disputes. And it's in both parties' best interests to have an alternative dispute resolution process to do that. These agreements between an entity, like a big company like mine, and a single individual employee, going to a forced arbitration is already a massive imbalance of power. So we don't have them at my company, and I wouldn't advocate that other companies have them.
ALEXANDER COLVIN: Yeah, I think that really is the key when you're thinking about what's the best way to handle these cases when they come up, you want to have both sides be well represented. You know, that solves a lot of kind of the imbalances. But you know, sadly, what we know is that, a lot of the time, it's an individual employee, typically female sexual harassment cases, typically they're lower paid, they're not getting the representation that allows them to really participate as an equal in dealing with these cases.
CHRISTINE PAMBIANCHI: And I just don't want Kevin to think I'm not in favor of alternative dispute resolution as an ILR alumni.
MARK BROSSMAN: I warned Alex that Professor Sherwyn, who's a hotel professor who's on his sabbatical in New Zealand, sent me the following to say. These are his words. "I know the senator and Alex will beat up on arbitration and extol the virtues of EEOC slash litigation." And he has a paper.
"Feel free to cite my paper showing that fewer than 0.5% of all EEOC cases go to verdict, and fewer than 2.5 of federal litigation goes to verdict. People are forced to settle litigation because costs and time make it impossible to pursue. I said in a conference last week that I would advise my daughters to never file an EEOC case. They find no merit in more than 80% of their cases, and you are tainted. An arbitration policy gives you a shot to stop the BS and not derail your career. A bunch of safe academics and politicians want young people to face financial and career derailment to sue. Unrealistic and unfair." So.
CHRISTINE PAMBIANCHI: I would like to add, though, with that note, one of the things that's really cool, on that note, that I see playing out with the generational differences in the workplace, on the last question, is you now have a generation of leaders at very senior levels in the company that have daughters entering the workforce. They didn't have that before. Right?
And so all of a sudden, their daughters are calling them up going, Dad, I can't believe this is going on in the workplace, can you believe this happened to me at lunch, or they went out and they all got drunk and went to a strip club, and I didn't get to go, and I didn't get that promotion because I don't follow basketball and I'm not in the March Madness pool. And there's all of this, all of a sudden, awareness with very senior male executives who now have well-educated or qualified daughters in the workplace experiencing these issues. And so I do find there's a much greater engagement level on the topic, as an example.
KEVIN F. HALLOCK: I want to ask about non-disclosure now. So in New York state, there's proposed legislation to ban non-disclosure agreements in the case of sexual harassment. So we're sort of not talking about arbitration anymore. What are the pros and cons and the necessity of such legislation, in your minds? Do we need legislation to make this organizational change, or can the existing systems from corporations or organizations do it? And should employers take the responsibility to set the higher bar than mandated by legislation? Maybe your answer will be yes because the legislation will take too long, but I wonder what your thoughts are about the non-disclosure.
CHRISTINE PAMBIANCHI: I think it's really a mixed issue. We talk about this a lot with all of our code of conduct issues, whether it's theft or gross misconduct or failure to perform in a job or sexual harassment. And so we are sort of, as an employer, kind of in betwixt and between, because you worry about defamation. We don't run a process inside our company that's going to meet a legal standard-- proof beyond a reasonable doubt. And so as we take action, because we have to uphold our premises, we also then try to say, well, our role is to make sure it's out of our workplace.
And are we out to ruin people's lives? No, we're out to get them out of our workplace if it's a problem. That said, when you then survey employees and say, do you feel safe reporting ethical violations on our code of conduct line or coming forward, yes or no, and without fear of reprisal, and when we got underneath that-- and we now have an 80% favorable answer on that in our annual climate survey, but when you get underneath the reasons why people won't come forward, it's because they believe nothing will be done about it.
So they're going to take all this risk, and they think it goes into a black hole because we don't do anything about it. So we've started internal communication on our internal Corning landing page where we cover, once a quarter, what were some big cases, and what are the actions that we took. Without naming the individuals and protecting their privacy, but at the same time wanting to have our workforce understand we really do enforce and we really appreciate when people come forward, because we're all interested in protecting and having the best workplace we can at the company we're working at.
MARK BROSSMAN: For me, the issue is retaliation. Retaliation is real in the workplace, especially at smaller, less sophisticated employers, and some pretty sophisticated employers. And so I think people are afraid to come forward and make a claim because it's basically the kiss of death. At some point, they're going to get me.
And so the mixed bag on the non-disclosure is some people want non-disclosure, because they feel that it protects them. I investigate a lot of sexual harassment-- harassment allegations, including sexual harassment allegations, and it's the old-- sometimes you don't know. It's he said, she said, she said, he said. It's 50-50. Who do you believe? There's no evidence. You get to evidence, you know, legal standards, it's not beyond reasonable doubt, that's for sure. It's probably not clear and convincing. Is the preponderance, which is 50.01%-- so it depends what standard you're using, to some extent.
But frequently, you don't know. But you know that somebody has complained, and you know that somebody is upset. And so the answer may be, OK, you know, we didn't find anything, but you, sir, or you whoever the harasser is, don't do it again. Or the woman or the man may say, I don't want to work here anymore, I want to leave. Pay me some money, let's have a release and a non-disclosure agreement so I can move on with my life, because I don't feel safe here long-term.
The recent tax law did put in, interestingly-- no one mentioned it, the senator mentioned it-- but there is a provision in the tax law that says-- it's very short-- no deductions shall be allowed under this chapter for, one, any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a non-disclosure agreement, or to attorneys fees related to such settlement or payment. So you can't deduct payments to settle sexual harassment, sexual abuse cases, and/or attorney fees related to it. And nobody knows what the impact of that is, but there's going to be an impact. It makes everything more expensive, because you're not deducting and attorney's fees are real.
KEVIN F. HALLOCK: Alex.
ALEXANDER COLVIN: Yeah, I think Mark really points to kind of tension that exists that the person bringing the complaint often doesn't want the kind of attention, exposure on them, you know, because they've already been subject to the sexual harassment, and then they're being often subject again to, you know, the question through the process. I mean, it's a really harrowing process for the plaintiffs in these cases.
At the same time, what we also see is this kind of contagion effect that, when one person is able to bring a claim, or comes out, then other people follow along. We saw this very powerfully with the Harvey Weinstein case, and then even more awfully with the Larry Nassar gymnastics cases, where it took, like, one person who's willing to come forward, and then suddenly person after person came forward saying, hey, the same thing happened to me in those situations.
And the non-disclosure agreements maybe protect the first person from that kind of, you know, further humiliation, but then, at the same time, they protect against getting that positive effect of other people coming forward and supporting the claimant. So I think that's where the tension lies.
KEVIN F. HALLOCK: I want to turn next to the encouragement of allies and victims to speak up. But I want to start with something that was brought up last Saturday at the-- again, at the ILR Women's Caucus event. One of the students raised a really, I thought, really excellent question near the end of the first panel on unintended consequences from zero tolerance policies.
And that is she gave a hypothetical situation where an employee works in a zero tolerance workplace-- that is, if something has happened, then the perpetrator is out-- was uncomfortable by a co-worker's actions, the victim, and the employee thought that what she was experiencing could be classified as harassment, but she didn't feel so negatively impacted that she wanted her reporting of it to lead to the potential harasser's firing.
And so the person being harassed was reluctant to come forward just because the firm had a zero tolerance policy, and sort of thought it should be such that she could file a mild complaint-- I hope I'm characterizing this right-- so that if there were others, then maybe-- but it wasn't enough, she thought, to lead to the dismissal of the person. But with a zero tolerance policy, she was in a little bit of a dilemma. I wonder if you have any thoughts on that.
MARK BROSSMAN: I mean, I'm not a fan of zero tolerance policies because, you know, where I started, the definition of harassment is very broad. And I think one of the sort of results of the #MeToo movement, and it's maybe an unintended consequence, is everybody's getting fired now. It's do not pass go. If you're found to sexually harass, no matter what that means, the answer is termination.
And it was interesting, I thought the original result of what's happening in the #MeToo movement would be the presumption would go to the accuser. As opposed to what I just said, the he said, she said, the presumption now is, OK, we believe the person who's coming forward. You know, as opposed to it's 50/50. I mean, you know, we give a presumption to somebody coming forward, because it's a big deal to come forward. We're all talking about it, it's not easy to come forward.
But it's more than that. It really is, right now, you get fired. And over years of investigating these kind of allegations, one of the things we always ask the person who comes forward is, what remedy are you seeking? What would you like us to do? Would you want us to fire the person? And the answer is, frequently, no, unless the person has really done something ugly. And so most people don't want to be the reason for somebody losing their job and losing their livelihood.
So zero tolerance is not my favorite because I think, in the real world, you know, there are different areas of gray. But I do think anybody should come forward if they feel that they're harassed, and are uncomfortable. And frequently, talking to somebody and saying, this person has come forward, this is what you're alleged to have done, you know, sometimes the answer is, oh my god, I had no idea that I was being perceived in that manner, and I'm horrified, and I will correct my behavior immediately.
And you know, there is a range. And that, I know, is somewhat controversial in today's time. But I think most practitioners believe that there really is a range that should be dealt with.
KEVIN F. HALLOCK: Christie.
CHRISTINE PAMBIANCHI: I would say I'm not in favor of zero tolerance, probably for a different reason. One is, as complaints come forward, we feel it's really important to have what we call due process in the company. So we want to hear from the person that's coming forward with their potential complaint, and what they feel has happened in the company that may violate our code of conduct or be bad business for us. And then we go and talk to the other involved parties. And if the person wants their identity protected, we protect their identity while we do that. And then it's really important to gather all the facts and then apply judgment.
And the punishment should match the crime. And we apply that same-- that sounds really simple, and we apply that whether we're dealing with a theft case, a grievance, a management abuse, a sexual harassment claim. So if somebody asked somebody out at work, and the other party wasn't interested and felt put off by that, or now felt threatened at work, that probably wouldn't warrant termination. It might warrant some additional management coaching and advice on how to behave in the workplace. And then if it became a repeated issue, you might move down the path to terminate. And so I do think you give up all of your rights as management to apply judgment.
But the second thing, I think more damaging about it, is actually, if you really look at it, it's management abdicating its responsibility. It's like, oh, zero tolerance, you've got to go. And the problem with that is they're also setting themselves up to fail because they're not-- are they really going to apply it consistently? To a C-suite, to a janitor, to a third shift manufacturing employee, et cetera. And so I think while it might sound great and make a good poster on the wall, it's not really what's going to happen. And for the reasons Mark described, it may not be good from a legal standpoint. But I think, from a management practice standpoint, I'm not sure who that serves.
KEVIN F. HALLOCK: OK. Now Lisa, I wonder about research on predictors of sexual harassment.
LISA NISHII: So, you know, it's true that there are some individual-level factors. So some individuals may be more likely to perpetrate. But there's no question that the work environment-- that is, the organizational climate-- is the single biggest predictor of whether or not sexual harassment occurs. And there are a number of dimensions associated with the climate for sexual harassment, or kind of perceived organizational tolerance for it.
And it has to do with whether or not people perceive that, if they report, they'll be taken seriously, whether or not there is risk associated with reporting, and whether or not they think anything will happen. Are there going to be any sanctions levied against the perpetrator? And that's why this NDA part, you know, what's visible to everybody else is so important, because if it goes into a black hole, then people are likely to perceive that nothing happens, so what's the point? And to the extent that that continues, it's really difficult to change the climate.
CHRISTINE PAMBIANCHI: And I would just-- I had one thing, too. I know Alex wants to get a point in. We're finding, too, if you create policies where the dialogue goes underground and people won't come forward, that's bad for everybody. And there's a lot of linkage between these kind of circumstances and then we're obviously very concerned about making sure we have a violence-free workplace. And so if people can't come forward with their complaints and such, eventually they come out and, as we've seen recently, these events continue to come out with more and more extreme reactions. So we want to create as non-threatening an environment as possible for people to come forward and tell us when they think things aren't going well.
ALEXANDER COLVIN: Yeah, and the resource, I mean, it shows consistently that retaliation is a pervasive problem, both retaliation against complainants, retaliation against complainees, and retaliation against supervisors of the people involved. And so I think that's one of the most fundamental things organizations have to wrestle with, is how to avoid that.
CHRISTINE PAMBIANCHI: And people retaliated against have the best-- they have the strongest laws protecting them, whistleblowers and retaliation claims. We do a lot to avoid them as a company because they're very hard to win.
KEVIN F. HALLOCK: Go ahead.
LISA NISHII: I was going to say, one more strong predictor is how male-dominated the workplace is. So the more male-dominated the workplace is, the more likely it is for sexual harassment to occur. And there are a number of reasons for that. One is that women are more likely to be perceived as easy targets. Another explanation is that men who hold more power have more to lose, and therefore are more likely to put women down.
And then the third is that, in male-dominated workplaces, women are counter-stereotypical, right? There aren't as many of them. And people tend to react negatively to counter-stereotypical behavior. And women face greater pressures to blend in, to be more like men, and as a result can suffer from that kind of negative reaction in the form of a hostile work environment.
MARK BROSSMAN: Just one point. I mentioned before that the law basically recognizes that, if you have a policy and you do training, you have an affirmative defense. So I meet with employers all the time, and basically, you know, the conversation is twofold. One is, you can have a policy that protects you legally and you can have a policy that works. And they're different.
You know, it's easy to have a policy that protects you legally. It's really hard to have a policy that works, because you need to have a structure and, you know, the empirical research and the experiences of companies where people feel safe to come forward to feel-- and there has to be different mechanisms. You know, going to your supervisor, or to the five main people, or to HR. In many companies, HR is the enemy, seen as the representative of the company.
And so this time is really interesting because I'm having a lot of discussions with companies about let's talk about ombudspersons, let's talk about-- let's be creative, let's talk about mechanisms where employees can come forward and feel free and safe to make an allegation and be protected. But that's a change, because up till now it's been policy and training.
And a lot of the training is ineffective. A lot of training is on the computer. You know, it's sort of an hour on the computer, and people aren't paying attention at all. So there's a lot of discussion about what's the most effective training. You know, what type of empirical research should we be doing to figure out a way to make this work in a way that really protects people.
KEVIN F. HALLOCK: I was going to ask Christie, you've talked about agency culture organizations, and the difference between individual contributor kinds of organizations, flatter organizations, and more organizationally hierarchical. And I wonder if you could talk about that. Startups are a little bit different than organizations that have more formalized HR systems. And I wonder if you had any thoughts about that.
CHRISTINE PAMBIANCHI: Yeah. All of my career has been in corporations in the Fortune 500s. I've worked at two of the majors, and there's a lot of governance structure in those. There's boards of directors. We're held to a lot of reporting requirements. And there's a lot of tenets of, you know, we have a compliance officer structure, we have a high employee, high touch culture. We have values. I have an HR supervisor in every factory, who I really want to have be in touch with what's going on in the workplace.
And while not perfect, most of this work actually started-- I was telling folks as I was preparing for this, I was in a manufacturing facility in the early '90s during the Anita Hill trials, the testimonies about the situation during Clarence Thomas's hearings. And I was-- back to being the only woman. And the people called me Anita in the workplace for about two months. And to them, that was a term of endearment. They were like, hey, Anita, I can't believe this is all going to be illegal now. And where we've come from that to where we are today. OK?
But that same transformation I don't think happened in structures like the movie industry or sports or athletics, even the Olympics, because you have this massive power difference, and you have abusers-- or predators, as Senator Gillibrand was referencing-- and the way they get away with it is if you decide you're not interested in playing that game, there's hundreds of people lined up right behind you willing to. And so at what price are people willing to sacrifice to get there.
And so the power, and what's been so exciting about #MeToo is it's much like in the early days of union organizing. Individuals that would normally have no power, because it's an agency or an individual talent kind of structure, now can at least form some level of a social collective to bring forward stories of what's happening to them and find some power, whether it's harming the reputation of the predators or creating social awareness, getting people to boycott products or things like that, which is what would be the normal tactics used against corporations to drive corporations to change behavior that citizens are unhappy with. And so I think there's more to be done where there's industry where that is much more individual contract.
KEVIN F. HALLOCK: So I want to step toward thinking about the future for a couple more minutes before we open it up for questions from the group. The ILR School is in the middle of a theme project on technology and the evolution of work. And obviously, harassment is a human-based problem, but I'm curious whether technology is to play here, either in perpetuating this behavior or as maybe a tool for improving workplace practices, a way for people to fight back, more easily bring things forward. I just wonder if anybody has thoughts on technology. Alex?
ALEXANDER COLVIN: Yeah. I mean, I think we're past the point where maybe the initial techno Utopian thought that perhaps in some of the flat Silicon Valley world, everything would be fine. I mean, we have enough instances of Silicon Valley examples of really embedded harassment problems. I mean, some of the issues in Uber organizationally are pretty shocking. And then you worry about the online forum, where you see actual harassment online as being sort of a site for harassment. And so the worrying thing there is we're sort of replicating in sort of the online world some of the stuff we saw in the physical world.
But I think, you know, there are potential ways in which technology can be used. You know, enhance the ability to report, providing mechanisms to report, and also I think the organizing that we see through the #MeToo movement, using online kind of forums to organize around these issues are really valuable, and also a way to track them down. I mean, you know, you talk to young associates working with people like Mark, and they're spending all their day going through emails, checking everybody's email chains, because now you can actually trace down some of these cases much better than we could do in the past.
MARK BROSSMAN: I just had a sexual harassment case in academia where we found 16,000 emails between the harasser and two women who he was harassing. So social media-- so as technology has changed the game, a lot of what law does now in discovery is through technology. And it's extraordinary how much documentation is discoverable through technology.
The other thing that we have seen is the social media response to accusations that go public is immediate and massive, and has an incredible impact which didn't exist just a few years ago. That has been a change. And so many companies-- I have clients who are like, we have to stay out of the press. You know, and it used to be you'll be in the press for a day or two, you know, who really cares. Now it's like, no, you know, because it hits social media, you know, there'll be a national boycott, you know, we're done. This has to stay out of the press.
And so the impact is-- and I think that does lead, go back to why people are all getting fired. Because if you don't get fired right now, the backlash is pretty dramatic for those companies that have said I'm going to keep-- you know, it's like you get really bombarded for that decision right now, especially with high-level executives.
The other industry where we have not seen a lot, but which we anticipate seeing a lot, is Wall Street. Wall Street is predominantly a male bastion, has been for years, and you have not yet seen the impact of this like you have in entertainment and media and other industries. But we all predict that Wall Street is the next big target.
CHRISTINE PAMBIANCHI: And I think the other thing on technology is the capability for something to go viral so quickly is massive. And whether it's an internal letter that somebody wrote at a company on why women can't be programmers that went viral this summer, or whether it's particular incidents of a private relationship that employees have had together, you don't want to be that company. And so what it will put pressure on companies to do is have as inviting a situation as possible so employees escalate the issues to you so you can address them, or at least be aware of them and try to participate in helping solve them with your employees.
And so I think technology will bring about another level of exposure, awareness, accountability. And it could help drive change at an accelerated rate, since we're still here, you know, in 2018 talking about things that were legislated and put into laws in the '60s.
KEVIN F. HALLOCK: I was really struck by your comment-- I wasn't struck by your comment about what things were like in 1990-- I wasn't struck by it today, because you told it to me a few weeks ago. I was struck by it then. But I want you all to think ahead five years, and imagine we are here talking about this again in five years. What's different, or what steps could we take to get to a better place?
CHRISTINE PAMBIANCHI: I'll go first. I feel, however slow the progress has been, we will eventually get to a tipping point. I hope it's in the next five years, but for sure it's in the next period of time. Universities are graduating over 50% women. Right? Workplaces are being held more and more accountable to continue to live up to the promise of what were the nondiscrimination laws that were put in place a long time ago.
And I think there's still a lot of societal issues about gender equity that have nothing to do with the workplace. And so while we're trying to advance it in the workplace, there's a lot on the table in society that hasn't made that easy. But I do believe, over this next period of time-- when I started working, there might have been 5% women executives. You know, there's approaching 30. In the industrial segment, it's 50%, and some other segments.
And the more and more you equalize what the power leadership structure looks like, the more and more you just take out these fringe behaviors. And so I think that leaves me hope that more women will enter the workplace, they'll stay in the workplace, they'll find alternative ways to work through parenting and careers, companies will be more tolerant. And as you begin to equalize that, I think we will see that turning point.
MARK BROSSMAN: And I guess I would add, as companies face liability, behavior changes. And so one of the outcomes of recently, which I think is going to potentially be very dramatic, is the attorney general of the state of New York went after the Weinstein Company board of directors. And it's sort of an interesting sort of development. Boards of directors generally are not involved with day-to-day sort of issues in the workplace dealing with an individual's claim of harassment.
Obviously, at that company, it was so extreme and such a terrible story, and they were aware. And they actually entered into an employment agreement with him when they renewed his employment agreement after a lot of knowledge as to what he was doing. It was basically the first time you get caught doing something, it's a $250,000 hit, the second time it's a-- and the AG said that's ridiculous. You know, you need to do more.
So I think actually, you know, realistically, as boards get involved, and as boards become more diversified and diverse, and as liability, you know, these settlements and these litigations are big numbers in these cases, that that is what will lead to change. Companies are risk-averse and do not want liability. And we've talked about this a lot. I think the #MeToo movement has been appropriately revolutionary, and we're just at the beginning.
LISA NISHII: I think that one change we need to see, though, is greater pressure to see evidence that training is effective. So right now, the courts just look for existence of training, not whether or not the training programs have been validated. And in fact, 2016, the EEOC task force reported that there's virtually no evidence that sexual harassment training is effective. And yet, when companies have it in place, it helps, right? And that's not OK. Right? We need to know whether or not the different interventions that companies are putting in place are actually making a difference.
So the other, the second thing I think I would really like to see more of is men in power helping to change the social norms, making it not cool. It's not cool to engage in these kinds of behaviors. That we're not just reliant on the target speaking up, and we're not just reliant on litigation, but that-- you know, the social norms are extremely powerful. And so I'd like to see more of that, as well.
ALEXANDER COLVIN: Yeah. And following up on, I think, on Mark's point, I mean, I think that the pressure for change, I think, is building. And I agree that I think there's a potential that the #MeToo movement won't just be one of these movements that kind of comes and goes, that there will actually be sort of structural pressure. And I think, going to Lisa's point, that deeper kind of changes in the accountability of the leaders of major employers I think is essential to this.
I mean, part of it, you know, there's sort of leftover cultures that exist, but I think there's also this kind of lack of accountability, the kind of feeling that I'm lord of the manor and I can do what I want. Until you fundamentally change that, you're not going to get real change. But I think it could happen.
KEVIN F. HALLOCK: OK. So we now have time for a couple of questions. There's a microphone, or are there microphones? There's a microphone. So come on up and ask your question. Anybody up here. And maybe introduce yourself, say your affiliation and your name.
VANESSA: Hi. I'm Vanessa Roga. I'm a sophomore in the ILR School. And returning to your comments on technology, I was wondering, where do you think the future of technology is going in terms of being used to screen employees for red flag behaviors of sexual assault in the workplace, and what privacy issues does that present?
CHRISTINE PAMBIANCHI: I do. Can I ask-- can you just repeat the middle? I couldn't hear the very beginning sentence. Thank you so much.
VANESSA: Just sort of where do you see the future of technology going in terms of screening red flag behaviors of sexual assault in the workplace, and being used to track them.
CHRISTINE PAMBIANCHI: Screening behavior of?
VANESSA: Sexual assault behavior.
CHRISTINE PAMBIANCHI: Thank you. Sorry. So there's a lot of capability in technology that is being explored right now, and whether that's machine learning or artificial intelligence or algorithms, to look at-- for example, you can take job postings, and you can put a computer program through it to take out anything that would disadvantage people of a gender or other protected class. I think that, to the extent that people are willing, the capability is there to read all of the media and such about communication in your company, and identify where there may be behaviors that are intolerant.
And so I think those are all being explored aggressively right now. But there are major privacy issues. And also, as you build the algorithms, it's kind of like there's a little bit of a fear of what's inside the algorithm, and then as the algorithm teaches itself stuff that's beyond what the original programmer or person that put the code together understands. So I think there's going to be a lot of area of dialogue around this.
ALEXANDER COLVIN: Yeah. This is an area actually where we have less privacy than the Europeans do. In Europe, there's a lot of these kind of right to be forgotten kind of protections against your kind of past. In America, for good or for bad, there's not as much of that. You know, sort of bad can kind of go through people's history and so on. But at the same point, their history may reveal things that an employer should want to know. You know, something to be aware of-- all of you are students-- in your kind of online life as a student is then open to the employers who are going to be looking at you in a few years' time.
MARK BROSSMAN: We are seeing a trend to a lot of employers start doing personality testing, or-- and the legal issue is validity of the tests. You know, any sort of test, who is it screening out? Is it minorities, is it older people? Whatever it might be. But it's definitely a trend that's out there, and there's a lot of companies that swear by it. I don't know if you guys are using it.
CHRISTINE PAMBIANCHI: I do not.
MARK BROSSMAN: But there's a lot of companies who are swearing by these analyses.
VANESSA: Thank you.
KEVIN F. HALLOCK: Thanks.
SHALONI: Hi. My name is Shaloni Pinto, and I'm a sophomore at the ILR School. And my question is, how can companies change organizational structures to properly address sexual harassment when the company's interest is in protecting its liability and ensuring that the workplace is a safe place for everyone? And is media attention enough to incentivize this long-term change in the workplace?
CHRISTINE PAMBIANCHI: So the first thing I would say is that the number one goal of a company is to grow. And so it's not to necessarily just protect itself. And so to grow, usually companies are focused on I've got to have a good product, have a good customer base, and I want to have the best talent I could possibly have. So we view it more as an attraction tool to say we have a great fair and equitable workplace, so that the most qualified workers, men and women, are going to want to come and work for us.
If and when there is activities in the workplace, the way in which that situation will be addressed would assume that the company and the perpetrator are aligned, and it's in the company's interest to protect the perpetrator. And I just don't necessarily think that's true. If we have a situation across multiple employees, we treat them as individual employees. We try to understand what happened, and then make a decision around how to act.
And we don't kind of close ranks and say, how do I protect the perpetrator to protect the entity? Because if it happened, you're better off saying, this happened in my workplace, I quickly addressed it, I removed the perpetrator, I made this resolution for the victim, and I made these remedies in my workplace so it doesn't happen again. And that would be the way I would approach it, and I think it's most effective way for companies to approach it.
MARK BROSSMAN: And I would add that where it works is where, at the highest level of the company, there's a commitment to having a workplace that is safe for everybody who works there. One of the issues that we see frequently is people come in and say, I'm being harassed, my, supervisor is yelling at me for not producing enough widgets, or whatever it might be. That's not necessarily harassment. So that's where I said before, there's a lot of things that aren't legal harassment, but it's civility in the workplace.
And so in a situation like that, we may say to the supervisor, stop yelling. You know, nobody likes being yelled at. I don't like being yelled at, nobody likes being yelled at. There's a different way to communicate in the workplace. But to prevent the sort of violations of law, it has to be from the highest level of an entity and really buy into it, and really believe it and make that important.
One of the things that I've read that I think is of interest is basically grade supervisors by how many people actually come forward. The opposite of not coming forward, how many people feel safe to come forward. Because that basically shows that you've created an environment that people feel safe. And it's the opposite of I don't have any complaints. People are scared to bring complaints. That's why this empirical studying is what works is going to be, I think, the next step academically, which is of critical importance.
KEVIN F. HALLOCK: Thank you.
SHALONI: Thank you.
MICHAEL-VINCENT CREA: Good afternoon, Dean Hallock and panel. Dean, I'd like to-- I'm Pastor Michael-Vincent Crea. I am a Cornell College of Agriculture Life Science graduate 1977, Education and Communication Arts. I have my master's of divinity on my own from Catholic University in 1987. And I've been pastoring pro bono since 1991 World Life Systems, serving one love and developing one world for the common good of humanity.
Between those three dates-- and Dean, I want to first say, if I may please, in '76, in 1976 here at ILR I took personnel management for managers. So I think we've come a long way, and we still have a long way to go, but this has been an excellent educational experience today. Thank you.
I was raped in the New York seminary after leaving Cornell. I won the most comprehensive case in Peace Corps history after digging the grave of a woman three weeks after she had died, and gave midwives Peace Corps material, Senegalese government materials on prenatal care. I was accused during the Reagan administration of teaching birth control.
I came back to the US. I was fired by a priest having sex with a teen in the rectory. The present archbishop of Baltimore just laughed at me, William Lori. I worked on Wall Street for Trinity Church's John Heuss House for mentally challenged homeless people. And when a co-worker solicited sex from one of my clients, I was fired. I won't go into any others right now.
But my concern is, when I see all the young people here-- if I have a quick greeting to you, how many here have heard that you're our future? Under 25. I don't believe you're our future. If you're not our now, if you're not our now, you might not have a future. So we can't wait five years and see what happens. For 25 years, I've been working for-- and I just want to ask the panel's opinion on this, because you're trying to put old coffee into new filters.
What good is all the laws, even that Senator Gillibrand is saying that we have to be serious about, what good are they if a landowner or a corporation can bring someone into housing court in 15 days, but the sued, with saving the border, the children or adults with Black Lives Matter, someone being raped, others being harassed, raped, or assaulted, these are our human rights from our first breath out of our mother's womb to our last breath before the tomb. We have never had a vehicle of veracity with a capacity to uphold those self-evident truths. And so what good are our laws if we do not create a system of justice that puts people instead of property, privilege, and corporations first?
KEVIN F. HALLOCK: No, no.
ELLEN HARRISON: Hello.
MICHAEL-VINCENT CREA: Yes, I did.
ELLEN HARRISON: Is this on?
KEVIN F. HALLOCK: Yeah, go ahead. This is the last question.
ELLEN HARRISON: My name is Ellen Harrison.
MICHAEL-VINCENT CREA: May I please have a response to my question? What good are any laws in the current system of justice and you talked about corporate heads in a workplace and the president of the United States has been accused and seems like untouchable? Could you just please respond what good is it if we do not create human rights courts that are equal to landowners in this town, that can break any tenant in in 15 days--
KEVIN F. HALLOCK: OK, let me try to answer, but go ahead back, and then she can ask her question.
MICHAEL-VINCENT CREA: [INAUDIBLE]
KEVIN F. HALLOCK: What I'll say is I think that what we're doing up here is positive change, talking about this important issue. We're talking about this issue, not the broader issue that you're bringing up right now. And so I'm sorry, but that's what we're talking about right now. And she's going to ask the last question.
ELLEN HARRISON: OK, I'm asking a question. My name is Ellen Harrison.
MICHAEL-VINCENT CREA: My body is not [INAUDIBLE].
ELLEN HARRISON: Mr. Brossman--
MICHAEL-VINCENT CREA: My body is a gift like all the 7.4 billion people on the earth.
ELLEN HARRISON: OK.
MICHAEL-VINCENT CREA: All right? We are all human beings.
ELLEN HARRISON: It seems to me that Mr. Brossman and maybe others suggested that now, finally, survivors, when they come forward, are being believed, and that perpetrators are getting fired. It seems to me that that is not what is happening in academia. Few victims report. When they do, not much seems to happen. They spend a year of their lives, and don't get much for it.
I ask, have you seen places where professors are actually fired when they have sexually harassed? In a serious fashion. I'm not talking about a dirty joke. And do you think that academia, where academia, where the power imbalance is so great, and the opportunity for being a predator is there, do you think much is happening now in academia?
MARK BROSSMAN: I'll start. I read the Chronicle of Higher Education regularly, and there are a lot of articles in the last number of months about universities which have not handled sexual harassment allegations well, particularly in the past, whether it be faculty member to student or faculty member to faculty member.
I think that will change, yes. I think it's been slow. I think Harvard is, you know, in the news, Rochester's in the news. Cornell I haven't seen in the news, but maybe it is in the news. But no industry, I think, is going to be immune. One of the interesting things about college is most university professors are unionized at most colleges, and there's a different grievance-- there's a different procedure. Tenure is harder to deal with, many times. But I personally believe that academia is going to be impacted just like everybody else by this change.
ELLEN HARRISON: [INAUDIBLE] a lot like what Gillibrand said with the military, that there's more interest in protecting the perpetrator than the victims, because they're the tenured faculty or whatever. So I hope it changes.
KEVIN F. HALLOCK: OK, so I want to--
--I want to thank--
--thank Mark and Christie and Alex and Lisa very much for your participation. And we'll be talking more about this. So thanks.
CHRISTINE PAMBIANCHI: Thank you.
LISA NISHII: Thank you, Kevin.
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The Cornell University ILR School's "Sexual Harassment at Work: Policy, Practice and Law" forum will feature expert insight from scholars, a national policymaker, a chief human resources office and a workplace law practitioner. They will discuss one of today's most important public issues - sexual harassment in the workplace.
Kirsten Gillibrand, United States Senator for New York Martha E. Pollack, President of Cornell University
Kevin F. Hallock, Kenneth F. Kahn '69 Dean, Joseph R. Rich '80 Professor of Economics and Human Resource Studies, Cornell ILR School
Mark Brossman, partner, Schulte Roth & Zabel; Alexander Colvin, associate dean for academic affairs, diversity and faculty development, and Martin F. Scheinman Professor of Conflict Resolution, Cornell ILR School; Lisa Nishii, vice provost for undergraduate education for Cornell University and associate professor, human resource studies, Cornell ILR School; and Christine Pambianchi, senior vice president, human resources, Corning Incorporated.