Carsten Tams: Can ‘allegation escrows’ remedy the underreporting of sexual harassment?

Ethical violations in general are underreported, and sexual assault yet even more so. Various studies estimate that 40 percent to 60 percent of observed misconduct is never reported.

For cases of sexual harassment in the workplace, about 90 percent go unreported, according to a report released by the U.S. Equal Employment Opportunity Commission (EEOC) in 2016. The same report indicates the pervasiveness of sexual harassment in the workplace.

We are currently witnessing a domino effect. Some call it the Weinstein effect. When one allegation becomes public, it can trigger other accusers to step forward with similar allegations. As a result, serial harassers can be exposed and potential would-be victims spared. But it can take years, even decades for the first domino to topple.

The reluctance to be the first accuser is rational. The psychological and material costs of stepping forward are quite certain and immediate while any potential rewards are uncertain and remote. Fear of retaliation by the accused, management and co-workers is a primary reason why those who experienced or witnessed sexual harassment fail to file a complaint.

These fears are compounded when allegations would implicate individuals with significant power inside the company, e.g. because they run the place as CEO, they are company “stars” generating large amounts of revenue, or they own the company. Fears of retaliation are not entirely unfounded. Consecutive studies by ECI have found that more than 20 percent of those who report misconduct experienced some form of retaliation.

An accuser’s chances of receiving a meaningful measure of justice at the end of a tormenting process are highly uncertain. Seventy-five percent of sexual harassment claims brought before the EEOC in 2015 were either dismissed for lack of a reasonable cause or simply closed for administrative reasons. Many of the 25 percent of cases that had a positive result for the claimant often amounted to little.

Considering these odds, it is understandable that many victims of sexual harassment feel reluctant about stepping forward as the first accuser, in particular when they don’t know whether other victims exist that have been harassed by the same offender and that are willing to make a supporting allegation. An uncorroborated accusation is likely to result in a “he said, she said” credibility contest, with a low chance of success for the accuser. Examined closely, the significant underreporting of sexual harassment is the result of reporting processes that are unfavorable to victims.

In an article by Ian Ayres and Cait Unkovic published in the Michigan Law Review in 2012, the authors refer to this as the first-mover disadvantage to making the initial accusation. As a result of this disadvantage, serial offenders may go on harassing unsuspecting victims unchallenged. To solve this problem, they propose the establishment of allegation escrows. Such an escrow would allow victims to transmit an allegation of sexual harassment to a trusted intermediary escrow agent, who would disclose this information to designated authorities only if a prespecified number of others also reported similar misconduct by the same offender.

This mechanism allows a victim of sexual harassment to place her allegation into escrow while being reassured that it will be released only if accompanied by other corroborating allegations, thereby strengthening the odds of success of her claim. The allegation escrow helps to mitigate the first mover disadvantage in making a complaint and, as a result, should increase victims’ willingness to come forward.

The escrow agent can take different forms. Callista is an online sexual assault reporting system implemented primarily at various university campuses. It allows users to create a time-stamped record of an assault, to report an assault electronically to campus authorities, or to place a report into escrow for release only if another survivor names the same perpetrator.

Alternatively, an external ombuds-person can function as escrow agent. As defined by the International Ombudsman Association, ombuds-persons operate based on the principles of independence, impartiality, confidentiality, and informality. This set of principles makes them particularly suited to function as escrow agents. In addition to counseling individual inquirers, they can play a useful role in aggregating incident reports with the purpose of identifying serial offenders and facilitating coordinated reporting by their victims.

Allegation escrows are useful for making reporting mechanisms friendlier to victims of sexual harassment. The movie industry can make progress in reducing sexual harassment by instituting allegation escrows, both in the form of an industry-wide and independent ombuds-office and as an online reporting system. This can give victims courage and strength in numbers, motivating them to jointly break the spell of silence and prevent instances of sexual harassment from recurring.

What do you think of allegation escrows? For example, should they become a feature of companies’ internal reporting mechanisms? Please share your thoughts in the comments section.

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Carsten Tams, pictured above, is founder of Emagence, a boutique consulting firm based in New York City. He partners with clients in private, public, and nonprofit sectors to develop evidence-based strategies rooted in behavioral science for solving organizational challenges. Typical areas of application include change management, culture transformation, governance, ethical systems, corporate responsibility, program assessment, learning design, and post-crisis reputation recovery. He can be contacted here.