It’s Time for Companies to Step Up — Or Pay the Price

by Nina Shaw and Tina Tchen

The TIME’S UP story began two years ago in a moment that was nothing short of extraordinary. It began with a group of women gathered in a room in Hollywood determined to make a change that would resonate far beyond the Hollywood community. We helped co-found TIME’S UP because, like so many, we were deeply horrified by the prevalence of sexual harassment not only in Hollywood, but across industries.

ANINA SHAW and TINA TCHEN are original signatories and co-founders of TIME’S UP, an organization that works for change across culture, companies, and laws to promote safe, fair, and dignified work for women of all kinds. NINA SHAW is a founding partner of the law firm Del Shaw Moonves Tanaka Finkelstein & Lezcano. She represents talent in television, motion pictures, and on the live stage. TINA TCHEN is an attorney who currently serves as TIME’S UP’s president and CEO and previously served as a senior official in the Obama Administration. AS WOMEN OF COLOR AND MOTHERS, we knew firsthand the impact of gender and racial discrimination in the workplace. We understood the structural barriers that prevent low-income women and women of color from seeking the justice they deserve. And we were committed to doing something about it.

As lawyers, the two of us, along with Robbie Kaplan and Hilary Rosen, a public relations professional, knew the most immediate need was to get legal and public relations assistance to the many sexual harassment survivors who were coming forward to speak out or to seek redress for the wrongs they experienced in the workplace. From that came our first initiative, the TIME’S UP Legal Defense Fund, housed and operated by the National Women’s Law Center. To date, the Fund has connected nearly 4,000 individuals to attorneys and committed to spending over $9 million helping people fight for equality and respect at work. This is one solution, but it cannot be the only one. To overcome centuries of racial and gender discrimination at work, companies must step up and lead the fight for safe, fair, and dignified workplaces for women of color.

And it will take more than putting new policies on paper and a few sexual harassment trainings to undo the economic, physical, and psychological damage created by centuries of racial and gender bias and discrimination.

The current reality is unacceptable. The Equal Employment Opportunity Commission (EEOC) found that black women are three times more likely to file sexual harassment claims than their white peers. 1 Black women, on average, earn 62 cents for every dollar paid to white, non-Hispanic men 2 — and at our current pace, black women would have to wait until 2119 to earn the same pay as white men. 3

Beyond the pay gap, women of color continue to face discrimination as they try to move up the corporate ladder: while 44 percent of companies have three or more women in their C-suite, just one in 25 of C-suite executives identify as a woman of color. To put this in perspective, just 58 black women are promoted to manager for every 100 entry-level men. 4

These structural barriers, however, have not stopped women of color from forging their own path. In the past year alone, women started an average of 1,817 new businesses per day — that’s 42 percent of the nearly 13 million businesses in this country. Businesses led by women of color make up the highest proportion of them by far (89 percent), and black-owned businesses are growing at the fastest rate (50 percent). 5

Black women are subject to both racism and sexism — a unique experience that has driven many black women to lead the fight against systemic racism and gender inequality for generations, 6 dating back to the lawsuits that first established the caselaw around sexual harassment 30 years ago and Anita Hill’s piercing of the public consciousness. 7

And today — inspired by the #metoo movement — black female leaders, from Hollywood, the C-suite and sports, are not taking workplace injustice sitting down.

Black women activists like Carmen LoBue and Leslie Silva successfully lobbied the New York State Legislature to pass the TIME’S UP Safety Agenda. Governor Cuomo of New York, on August 12, 2019, signed sweeping reforms to its legislation that strengthened protections against discrimination and harassment in the workplace. Black athletes like Alysia Montano pushed Nike to change its pregnancy and maternity leave policies — and won. 8 And Hollywood trailblazers, such as Shonda Rhimes, Ava Duvernay, and Oprah Winfrey wore black in solidarity with survivors at the 2018 Golden Globes in 2018, and helped make TIME’S UP the organization it is today.

Companies are starting to realize what many of us who have made this our life’s work have known for some time: diversity and inclusion is not just a nice-to-have for a company. It’s an economic imperative. There’s evidence to back this up: studies show that companies that have greater gender and racial diversity are more likely to have higher financial returns in the long run. 9

Progressive Casualty Insurance Company is exemplary of this. The company ranked first in The Wall Street Journal’s diversity and inclusion ranking of companies in the S&P 500 based on 10 metrics including the representation of women, age and ethnic diversity, and whether the company has diversity programs in place. The Wall Street Journal study found that the companies on this list had better operating results on average than the lowest-scoring firms and their shares generally outperformed those of the least-diverse firms. 10

Progressive’s annual report on pay equity reported that for its employees with similar performance, experience, and job responsibilities, women earn one dollar for every dollar earned by men. In the same report, Progressive reported that people of color earn one dollar for every dollar earned by their white coworkers. 11 “Our focus on diversity and inclusion and pay equity aren’t new at Progressive,” commented chief human resource officer Lori Niederst. “Our company culture and our reputation for treating our people fairly are big drivers of our success. We recognize this and work very hard to maintain this competitive advantage. We published this report to tell our story to our customers, shareholders and Progressive people.” 12

Creating workplaces that are free from discrimination and harassment will not happen if it is delegated to the human resources department to accomplish alone — it must be led from the top. Company leaders must take full ownership over their workplace culture, including by setting an example for how employees should be treated and how they should treat each other. If companies don’t step up, businesses and their employees will bear the cost of discrimination and harassment.

A report by the International Center for Research on Women outlined some of the costs of sex-based harassment to employees and businesses. 13

INDICATORS COSTS

Individual Productivity $22,500 per harassed individual, 2007

Team Performance Varies, one study found $193.8 million lost to the civilian U.S. Government, 1992 - 94

Recruitment Unquantifiable

Turnover and Transfer Costs

Litigation

Insurance

Brand Perception and Reputation $5,000 - $211,000 per lost employee, depending on level and industry, 2016

Settlements: $75,000, Jury awarded damages: $217,000, not including legal fees, 2017

$1,000 - $1,000,000 per claim, not including standard premiums 2017

Varies by industry, and difficult to quantify

The values and code of conduct that companies will live by must go beyond just satisfying existing legal requirements, and instead set the standard for behaviors that will foster workplaces cultures that respect and support all workers. Leaders should create new mechanisms to provide space for survivors to tell the truth — without fear of retaliation. They must invest in the latest business technology, machinery, or investment tools to attract the best talent. And they must break down the structural barriers that keep women, and others, from succeeding at work — that means instituting new policies and practices, including paid leave, pay transparency, and flexible work hours.

It has been two years since we founded TIME’S UP, and we are living in a moment that is nothing short of extraordinary. Women of all backgrounds and industries are coming forward to share their stories and turn their pain into action. It is a moment unlike anything we’ve ever seen before. This is what we — and so many other women of color — have been fighting for throughout our lives: a fair shot at success and financial security.

Company leaders have a critical role to play in achieving safe, fair, and dignified work for all women. It’s time for business leaders in our communities to step up to the plate or pay the price in lost talent and revenue.

Notes:

1 – https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2018/08/SexualHarassmentReport. pdf 2 – National Partnership. America’s Women and the Wage Gap. 2019. http://www.nationalpartnership.org/ our-work/resources/economic-justice/fair-pay/americas-women-and-the-wage-gap.pdf 3 – http://www.equalpaytoday.org/equalpaydays 4 – McKinsey & Company and LeanIn.org. Women in the Workplace. 2019. https://womenintheworkplace. com/ 5 – American Express State of Women-owned Businesses Report. 2019 https://about.americanexpress.com/ files/doc_library/file/2019-state-of-women-owned-businesses-report.pdf. 6 – Lipsitz, R. Sexual Harassment Law was Shaped by the Battles of Black Women. P The Nation. 2017. https://www.thenation.com/article/sexual-harassment-law-was-shaped-by-the-battles-of-black-women/ 7 – Crenshaw, K.W. Whose Story is It, Anyway? Feminist and Aniracist Appropriations of Anita Hill. 1992. In: Morrison, T. editor. Race-ing Justice, En-gendering Power. New York: Pantheon Books, p. 402-40. 8 – Nike to Change Pregnancy Policy in Athlete Contracts https://www.wsj.com/articles/nike-to-change-pregnancy-policy-in-athlete-contracts-11558137409 9 – Hunt V, Layton D. and Prince S. Why Diversity Matters. McKinsey & Company https://www.mckinsey.com/ business-functions/organization/our-insights/why-diversity-matters 10 – Holger D. The Business Case for More Diversity. 2019. https://www.wsj.com/articles/the-business-casefor-more-diversity-11572091200 11 – https://www.progressive.com/about/diversity-and-inclusion/ 12 – https://www.insurancebusinessmag.com/us/news/breaking-news/progressive-takes-another-steptowards-workforce-diversity-appoints-female-board-chair-100604.aspx 13 – The cost of sex-based harassment to businesses: An in-depth look at the workplace. https://www.icrw. org/wp-content/uploads/2018/08/ICRW_SBHDonorBrief_v4_WebReady.pdf