problem solving application case metoo just do it

Nike’s #MeToo moment shows how ‘legal’ harassment can lead to illegal discrimination

Associate Professor, School of Law, University of Oregon

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Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Nike’s having its #MeToo moment – and it illustrates plainly what’s still missing from our discussion of sexual harassment in the workplace.

Women at Nike, fed up with the status quo, recently undertook a covert survey asking about sexual harassment and gender discrimination, which eventually reached the CEO of the world’s largest sports brand. Six top executives have resigned or announced their departure.

Nike employees interviewed by The New York Times described being marginalized and passed over for promotion. One recounted a supervisor that called her “stupid bitch.” Another reported an email from a manager about an employee’s breasts. There was the manager who bragged about condoms in his bag and racy magazines on his desk. Oh, and of course there were trips to strip clubs, tacked on to the end of staff outings.

This happened over a period of years. All the while, human resources sat on its hands. The managers kept their jobs. The complaints piled on.

In some ways, it’s the familiar story of how companies have long turned a blind eye to harassment. But it also illustrates, perhaps better than any other example from the #MeToo era, how harassment can be a symptom – and precursor – of workplace discrimination.

And, as I explain in a forthcoming article in the Minnesota Law Review, understanding that link is critical for companies hoping to improve upon past mistakes.

Easy vs. hard

The #MeToo movement has rightly brought attention to questions of sexual harassment and assault. The types of cases that result could be divided into two buckets – what in law school we would label “easy cases” and “hard cases.”

One of the first thing students learn in law school is that “easy cases” refer to those in which the facts are really extreme – where a rule clearly applies or it doesn’t. Here, that would mean egregious examples of sexual harassment, such as allegations of Matt Lauer’s lewd and aggressive behavior toward subordinates.

“Hard cases” refer to situations where it’s harder to figure out whether the parties involved have violated the rule. There might be arguments on both sides, and it might be hard to predict how a court would rule. Or – a favored trap on the bar exam – the conduct might seem really bad as a matter of common sense but doesn’t meet the technical requirements of the legal rule.

The stories coming out of Nike are the hard cases. They do not clearly meet the legal standard for workplace harassment.

The problem of not-quite harassment

The law governing workplace harassment is quite unforgiving. The offensive conduct must be so severe or frequent that it creates an abusive working environment. The conduct must also be motivated by the victim’s membership in a protected category, like their gender or race.

Some legal scholars have argued courts have been too unforgiving in applying this test and that it should be brought closer to commonsense understandings of harassment.

Lawyers and human resources experts have long known that the legal standard for harassment is incredibly high. So companies worked around it by defining harassment very broadly in their policies. This gave companies the power (but not the obligation) to punish employees for violations of the policy. But pre-#MeToo, it seemed companies chose not to act , even when they had the power to do so.

As we now know, this just-do-nothing ethos was a terrible judgment from a moral and public relations standpoint. And while companies may have been correct that a claim may not have been harassment, legally speaking, they completely overlooked their potential liability for future discrimination claims.

Here’s why. A supervisor’s derogatory comments about an employee’s gender, race or religion may not amount to a harassment claim. But they are a smoking gun in a later discrimination claim.

The discrimination blind spot

Discrimination claims are all about the supervisor’s frame of mind when he or she made a decision about an employee promotion, compensation or firing. But since we can’t read someone’s mind, the only thing we have to go on is their comments and behavior.

If a supervisor makes objectifying comments about a woman’s body and then later denies her a promotion, those comments may later be used to show his decision was biased.

The Nike story offers a great illustration of this principle. A manager who views women primarily in terms of condom consumption is probably not also thinking of them as a potential vice president candidate. Nevertheless, it is unsurprising to me that Nike’s human resources department seemingly failed to identify the problem as discrimination when employees complained.

And that’s because, in all likelihood, the discrimination had not yet happened. When the woman complained, it probably wasn’t yet about a lost promotion, unfair compensation or a termination. It was “just” a comment.

Of course, to the employee, it was never just a comment. She would have been keenly aware that her career was in her supervisor’s hands. And that he could no longer be trusted.

This is not really a rare occurrence for women in the U.S. In representative samples, around 25 percent to 40 percent of women report having experienced unwanted sexually based behaviors at work, and 60 percent said they encountered hostile behaviors or comments based on their gender.

It’s as though the employee can see the gun and anticipates the bullet to come. But all human resources sees is a weak harassment complaint unworthy of intervention.

A better way

The #MeToo movement has generated discussion around “zero tolerance” harassment policies , containing perhaps the implied threat that even minor transgressions of the policy will be met with strong punishment.

But because harassment policies already cover the waterfront, they don’t really provide meaningful behavioral guidance. A Pew Research study published in March found that half of all adults surveyed thought that #MeToo made it harder for “men to know how to interact with women in the workplace.”

I actually think a more sustainable approach – which actually better aligns with a company’s true legal risks – would be to beef up anti-discrimination policies.

These policies would explain that supervisors are placed in a special position of trust regarding their subordinates’ careers and that supervisors act as the company’s proxy in carrying out the employer’s duty to provide equal employment opportunities.

When a supervisor engages in low-level harassing behaviors or makes derogatory comments based on a employee’s gender, race or religion, it is a breach of that trust.

And it is the company’s duty to make it right.

• Sexual harassment
• Gender discrimination
• Workplace harassment

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"Just Do It" — Problem Solving Made Easy

Dmaic is short for define, measure, analyze, improve and control.

At Covance, we expect employees to be process managers, problem solvers, and decision makers. One methodology we in the Six Sigma community use and teach is called DMAIC , short for Define, Measure, Analyze, Improve, and Control. In the early stages of attempting to instill this methodology within a couple of Covance’s business units, we trained many Green Belts — people who were learning to apply the Six Sigma methodology — to run DMAIC projects that focused on defect reduction.

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• Not every defect-reduction challenge required the rigors of the DMAIC methodology .
• The application of the wrong methodology or tools created projects that took too long to complete, which had a negative effect on the perception of the Process Improvement team to be able to solve real business issues quickly .
• Our strategy of embedding the Six Sigma methodology into the culture by giving lean six sigma training to Green Belts only was too exclusive and didn’t allow additional employees to participate .

Facing these brutal facts, we added additional non-Green Belt-specific courses, tools, and methodologies tied to business strategies and needs. We developed a simplified methodology for solving problems that anyone could use. The methodology was designed to tackle problems with obvious solutions or "Just do it" fixes. We called this methodology DPIC, which stands for Define, Plan, Implement, and Control.

So, how is this DPIC methodology different from DMAIC? Just as in a traditional DMAIC project, in DPIC we define what the problem is. When the solution is obvious, the employee or employees identify the process problem and bring it to management for approval. If the solution or cause is not known, the employee and his/her manager contact the Process Excellence group. The second phase involves developing a plan to implement the known or desired solution. Once we identify the desired solution, we implement it and control it. At the conclusion of the project, the project leaders contact the Process Excellence group to document the savings, control plans, and celebrate team success.

A DPIC Methodology Case Study Let us take a look at a specific business example where we chose DPIC over DMAIC as the methodology that would enable us to create sustainable process change in this particular instance. In June of last year, several leaders from Safety and Quality Assurance (QA) met looking for a way to improve the process of submitting safety reports to QA. These leaders agreed it was possible to use less paper in submissions of reports. The idea floated around for several months without a directive until one day in August, supervisors and QA auditors revitalized this idea and began working on it. As one team member said, "Let’s explore it, and maybe, just improve it!" So off they went with the blessing of their respective managers. The following describes the steps that the team took to improve the process using the DPIC methodology.

• Define The team spent some time collecting data from the departments to understand and define the project charter. It was known that the report hand-off processes between Safety and QA consumed a great deal of paper, and the auditing processes were cumbersome and time-consuming. QA auditors and scientists spent hours printing and reviewing copies of the report each time it was submitted. A typical submitted report was printed two to four times before being finalized. For an average 800-page toxicology report, this equated to approximately 24,000 pieces of paper. Over a 12-month period, 422 toxicology reports were completed. With that number of final reports, the team estimated that the company printed 1,012,800 pages, or 2,026 reams. With reams of pages on the auditors’ desks, the task of reviewing and flipping through pages for content was inefficient and time-consuming. Everyone knew there had to be a better way, but the problem just had not been tackled.
• Plan Armed with the charter and data, the small team began developing their plan by researching current practices at other company sites, mapping their current process, and gathering technical information and input from auditors and report coordinators. They created process maps and collected the Voice of the Customer from the process stakeholders Along the way, they recognized a second opportunity for improvement regarding the resubmission process. The resubmission processes were inefficient and consumed large quantities of time. Baseline data indicated that auditors were spending on average 10.9 hours auditing re-submission reports — once again, comparing the cumbersome paper copies for changes. The team knew it made sense to fix both problems simultaneously. They met two to three times a week for six weeks; during this time they brainstormed solutions, mapped new processes, tested possible solutions, and worked around the technological and financial barriers. They used the Voice of the Customer data and process maps to create a future state process that would be implemented to meet their stakeholder requirements. Once they had a working model for the new process, they devised a plan for implementation, which included a training plan, a communication plan, and a scorecard. The team got approval and went to work on implementing the approved solution.
• Implementation and Control In late September, a plan was complete and the process was rolled out to the departments. The team met with QA and Safety leadership to present a new process — electronic submission! Two training programs were developed and delivered, and the new process was launched in mid-October. They expected to radically reduce paper usage and QA auditor re-submission time. The scorecard was maintained by the department leadership, and data collection was in place to measure effectiveness. With minor corrections, all aspects of the process were in place by mid-November. The improvement effort fit within the DPIC methodology requirements. The team reduced the amount of paper used in these processes by 95 percent, saving 122 trees per year and reducing by 30 percent the labor hours for re-submitted reports. The new process addressed both paper use and auditor efficiency for both initial reports and subsequent submissions. This is just one example of a successful DPIC project that was completed at Covance.
• Producing Results Our results following the roll out of the DPIC methodology have been positive. The number of improvement projects has more than tripled, and more employees feel empowered to make changes within their areas.

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Nike: Ethics Versus Reputation in the #MeToo Era – Case Solution

Mark Parker, Chief Executive Officer of Nike, Inc. (Nike), received a report regarding ethical issues in the company, specifically, workplace harassment. The report was the result of an internal survey by other female employees of the company after several senior women executives resigned in 2017. The survey asked women or female employees if they were victims of gender discrimination or sexual harassment. The findings of the survey were embodied in the report.

​Arpita Agnihotri and Saurabh Bhattacharya Harvard Business Review ( W18614-PDF-ENG ) September 27, 2018

Case questions answered:

• Did Parker respond to complaints made by female employees of Nike out of an ethical concern or as a reputation management strategy?
• Why did the HR department at Nike fail to respond to the harassment issues? Does Nike’s HR Department have an opportunity to improve?
• Why did gender discrimination take place more at the senior level at Nike? Why is this significant? Why is it important to resolve this issue? Explain in the context of Nike.
• What is severance pay? Why did senior executives like Edwards receive generously compensation packages, even when they resigned amid the controversy?
• What is workplace harassment? Was there a clear case for legal workplace harassment at Nike? If not, should Parker have let the executives go, resulting in a loss of talent?

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Nike: Ethics Versus Reputation in the #MeToo Era Case Answers

Case study – nike: ethics versus reputation in the #metoo era.

Nike, Inc. (Nike) experienced the resignation of senior women executives in 2017 (Agnihotri & Bhattacharya, 2018). The misconduct of some employees drove the resignation. These were brought to the attention of Mark Parker, the Chief Executive Officer of the company.

The departure of these executives resulted in an internal survey by other female employees of the company. It entailed asking women if they were victims of gender discrimination or sexual harassment.

The findings suggested that female employees had frustrating experiences working at Nike. The Human Resource (HR) department was claimed to ignore misconduct in the past. The reputation of the company at Glassdoor was poor since victims posted their negative experiences on this platform. Immediately after the findings were submitted to Parker, eleven senior executives of the company resigned or asked for early retirement.

The following is a case study of ethics and reputation at Nike. The company supported an unethical work environment and a poor organizational culture.

Background of the Case

Parker was in the dilemma of maintaining the reputation of the company, especially the executives and creating an ethical work environment. Among the executives who resigned was Trevor Edwards, the president of the Nike brand.

The CEO announced that Edward had resigned in response to the report but covered the misconduct of discriminating and sexually harassing female employees to the media. Besides, he was awarded a stock option valued at $9 million and a severance package worth $525,000 (Agnihotri & Bhattacharya, 2018).

This package was criticized in the media because Edward was associated with covering male employees who harassed their female colleagues. He was the proposed Parker’s successor, and the CEO was hailed for addressing the issue based on the report. However, employees were suspicious of Parker’s response that he was not aware of the problems.

The CEO attributed the claims to the #MeToo campaign. He introduced mandatory training on bias, which questioned if the HR department was to blame for the poor work culture.

In 2016, Parker addressed the issue of violence, race, and policing in the United States (Agnihotri & Bhattacharya, 2018). It was in support of the controversial problems that African Americans faced when dealing with law enforcement officers. He declared the commitment of the company to supporting marginalized people and his commitment to fighting discrimination.

In a sustainability survey that was carried out in 2016, it was found that 52% of the workforce was non-white (Agnihotri & Bhattacharya, 2018). However, it was established that whites held 77% of director positions in 2017. In another survey, Nike held the 10th position of the most preferred workplace for millennial women.

The survey focused on attributes like diversity, workplace culture, and initiatives that were related to women. However, it involved 197 respondents from the company, but the entire workforce during the time of the survey was 74,400 (Agnihotri & Bhattacharya, 2018). This suggested loopholes and possible bias in the findings.

The HR department of Nike overlooked problems with gender discrimination and harassment. Although the company had anti-discriminatory policies, the department did little to address the complaints. Some employees considered themselves as marginalized after being harassed by their supervisors and denied promotion opportunities. During the staff meetings, they reported harassment, but the problem was ignored.

In some categories of production, like basketball, women were discriminated against by being excluded (Agnihotri & Bhattacharya, 2018). The ones that raised gender discrimination issues were ignored.

Men who were less qualified than women were promoted, with some women reporting being insulted by their supervisors. Others had their employment contracts terminated after reporting discrimination to HR, although they had an impressive performance. The management of Nike had an insular group that was led by Edwards, which perpetuated gender discrimination and harassment, where the members protected each other.

The complaints were directed to Glassdoor by some employees who criticized the company for the inappropriate culture. The employees expressed their frustrations with the “boys” club that was protected by the management. Among the descriptions of this club that was raised include ageist, sexist, disrespectful, entitled, and pampered. Parker needed to respond to these issues.

In 2017, he terminated David Ayre, the chief of HR, for behaviors that were described as condescending (Agnihotri & Bhattacharya, 2018). The officer had confessed to his misconduct and admitted the need for counseling.

David had created a hostile working environment at Nike. However, his departure was also announced as a retirement by the company. The executive was praised for being strategic and for supporting the company in the implementation of its HR strategies. Parker demonstrated disappointment over the misconduct issues and apologized for allowing a hostile workplace culture.

The CEO reviewed the HR operations, especially compulsory management training, and the internal reporting processes. The company also expressed its commitment to promote diversity and inclusion, which encompassed the representation of people of color and women.

Although the findings of the internal survey initiated the change, the reported misconduct had already impacted the growth strategy of Nike. The company failed to meet its annual revenue target of $50 and extended the timeline by two years (Agnihotri & Bhattacharya, 2018).

The rate of growth for apparel and footwear reduced, although that of competitors increased. The company was under stiff competition from brands like Under Armour, Lululemon, and Adidas, which was threatening its leadership position in the market.

Possible Solutions

One of the possible solutions that Parker could have adopted is to…

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