Donna Boehme – March 6, 2018
An alarming number of companies have convinced themselves that the answer to sexual harassment is training. And what would that training look like? If your answer revolves around a particularly hilarious episode of The Office, read on. I think the hands-down, worst approach to sexual harassment compliance is the one taken (and recently exposed by media) in Congress. You can Google it. That’s the one where the dubiously named”Office of Compliance” operated much like the Weinstein machinery, to discourage lawsuits, enforce silence, and pay off victims (with taxpayer funds – UGH!) Particularly counterproductive were the protocols that office had in place to provide “counseling” (to victims but not harassers!) and arbitration that involved NDAs and settlements. It should have been named “The Office of ‘Please Go Away.” I wonder how the lawmakers who created that office STILL HAVE JOBS!
My point is that until companies finally understand that Compliance is not a subset of Legal doing “check-the-box” DIY Compliance but a full-blown profession and SME, their approach to compliance in this risk area will never be more than window-dressing. They need much more than training (Even Congress has that!). They need:
- A fully independent and experienced Compliance function with the authority, mandate, line of sight. seat at the table and resources to do the job well, and a proven track record of designing, implementing and managing a successful compliance program (true Compliance SME).
- A Compliance function capable of forming the right working partnerships with Legal, HR, Audit and Management Compliance (which comes with true Compliance SME).
- The right incentives in place to underscore management’s accountability and cooperation.
- A confidential reporting system that is trusted by employees to protect them from retaliation and bring transparency to the activity of bad actors.
- A demonstrated system to review decision making after misconduct is detected, and ensure consistent discipline.
- A well-known audit program to periodically test all these elements of compliance, with results published to the Board and management.
Wishful thinking, I know. But those are a just a few of the many reasons why so many organizations (and Congress) have fallen short in their approaches to sexual harassment compliance. It’s also a useful example of why true compliance subject matter expertise (SME gained through actual track record of designing and managing successful compliance programs on the ground) is a core element of modern Compliance 2.0, in comparison to the failed attempts of Compliance 1.0, which was often attempted by in-house lawyers or others without the benefit of true Compliance SME – often using a “DIY Compliance” approach and a ‘check the box’ strategy using the 7 elements of the Federal Sentencing Guidelines as their sole tool. In contrast, a true compliance SME understands the nuances of each element (and sub-element) of a strong compliance program that actually ‘works’ to prevent, detect and remediate problems and misconduct, along with important related areas such as change management, organizational justice, the significance of trust, and others.