Sexual Harassment is Front and Center

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I suspect that you have heard about the recent allegations that a Hollywood film producer committed acts of sexual harassment.  Soon, both parties’ political figures, television celebrities, and others were either charged with having committed acts of sexual harassment or came forward to say that they were victims of it.

The Best Defense is a Good Offense

There is significant liability at risk with sexual harassment and employers need to take a very proactive and aggressive position. All employers should have a Sexual Harassment Prevention or Anti-Harassment Policy.  It should clearly state that your organization has a ‘zero tolerance’ for any form of harassment (sexual or otherwise), including bullying, and you must mean it.

Sexual harassment can occur at the office as well as away during offsite meetings, receptions, and other social gatherings.  Employees should know who to report their concerns to in their organization, and be informed that all complaints will be quickly and thoroughly investigated and treated in as confidential a manner as possible.

Although civil rights laws protect employees against retaliation, organizations should also have their own No Retaliation Policy, such that anyone who comes forward with a concern or a complaint, will not have to endure either covert or overt retaliation.  Employees should always feel comfortable coming forward with their concerns.

As with any investigation, it’s important that there are eye witnesses to any infractions, as otherwise, it often boils down to a he said, she said.

Two Kinds of Sexual Harassment

There are two kinds of sexual harassment.  The first kind is referred to as Quid Pro Quo,  which is Latin for ‘this for that’ or ‘this in exchange for that’. This is typically seen between employees of unequal rank, e.g., supervisor and employee, where the supervisor either offers a benefit (good assignment, raise or promotion) if the person complies with the request or threatens with adverse job action, (failure to promote,  demotion, poor assignments, or cuts pay) if the person does not comply.  According to SESCO Special Report: Harassment in the Workplace, November 20, 2017, in these instances the employer is automatically liable for harassment and there is no defense regardless of the policies, training, and preventive action that the employer has implemented.

The second kind is referred to as ‘hostile environment’.  This is defined as frequent, severe (note these two key words), unwelcome harassment where a reasonable person would consider it intimidating, hostile, or abusive. It can occur between employees of equal or unequal rank.  It also protects employees from harassment from customers, patients, interns, and vendors.  Examples of hostile environment may include cat calls, whistles, dirty jokes, name calling, epithets, physical assaults or threats, offensive objects or pictures, etc.  Circulation of inappropriate e-mail even to a select group is intolerable and may also be an example of harassing behavior.  Harassers can be either male or female and same sex harassment is also illegal.

One final point to consider is that everyone’s sensibilities are different.  For example, if one hears a dirty joke, he/she may find it offensive and may report it.  Someone else, may not be offended by hearing the same dirty joke.

You’ll want to note that the Equal Employment Opportunity Commission’s Public Portal launched November 1.  It provides employees nationwide with resources on discrimination complaints, including frequently asked questions and the option to electronically file and sign charges.  So it’s incumbent upon all employers to take sexual harassment seriously.  Quickly and thoroughly investigate all raised concerns, and, if the allegations are substantiated, take appropriate disciplinary actions, and inform the employee that brought forth the concern that the matter has been properly addressed.  Properly documenting your investigations will help to effectively mitigate risk for your organization.

Educate, Educate, Educate

Not only should every organization have a Sexual Harassment Prevention or Anti-Harassment Policy, it should annually require all employees to re-read it and sign a document which confirms that the employee has read and understands the policy.  Employers need to be able to attest that each employee has received refresher training annually with face-to-face training being the most effective.  Additional training should be offered to your organization’s leadership team.  They are held to a higher standard than rank and file employees, as they are considered ‘agents’ of the organization.

SESCO adds “…that employers will be liable for harassment by non-supervisory employees and non-employees of whom it has control (e.g., independent contractors or customers on the premises) if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.”

Now that sexual harassment is ‘front and center’ take the necessary steps to educate and protect your organization’s most valuable ‘human’ assets.

Good luck.

theHRMeister is now Principled HR Consulting, LLC

Endnotes

Consider Face-to-Face Training as EEOC Makes Filing Harassment Complaints Easier, by Aliah D. Wright, in Society for Human Resources Management article, November 28, 2017.

 

 

 

 

 

When HR Gets It Wrong

original_117633847Beginning July 17, the Society for Human Resources Management (SHRM) published the first in a four-part series of articles—“When HR Gets It Wrong”— by Dana Wilkie, that explores the challenges HR faces when confronted with allegations of misconduct, inequity and other problems at an organization.

I’m writing this post for my HR colleagues, who, like me, need to recognize and understand the implications of the situations spelled out in these four articles.

Let’s explore one aspect of the first article: “When HR Gets It Wrong: At Fox, Uber, and Mizzou, Where Was Human Resources?”  It focuses on sexual harassment at the first two organizations and racial discrimination at the third, and how it affects HR.  I’m simply going to zero-in on this latter piece in my post.

Walking the Tightrope

The article cites the tightrope all HR folks walk with their senior leadership.  Here are some of their thoughts and advice:

“I have always said that … to be an ethical HR leader, you need to always be prepared to lose your job,” said Fran Sepler, who is president of Minneapolis-based Sepler & Associates.”  Now she tells me!

“While it’s best for HR professionals to keep executives at arm’s length in case they ever have to investigate them, cronyism nonetheless happens”, said Karen Kruse, an employment law attorney in Seattle.

“In addition, HR leaders may find it hard to remain objective about executives while trying to prove their worth to these same people, said Patty Wise, a partner with Toledo, Ohio-based Niehaus Wise & Kalas Ltd. and co-chair of the Society for Human Resource Management’s Labor Relations Special Expertise Panel.”

HR business partners try to learn as much as they can about the ‘business’ from their line and executive partners. Working closely together on projects usually builds trust and collegiality between HR and their business partner.

“HR professionals are often seeking approval and even membership among the senior management group. The goal may be a ‘seat at the table,’ and so what might be viewed as cronyism may also demonstrate professional success and achievement.”

See the tightrope?

“Another reason that HR may turn a blind eye toward an employee’s misdeeds is because the person accused of misconduct is a top performer.”  I would add to this that my experience has been that leadership has taken this position and HR has to deal with it.

“HR professionals often encounter another problem when asked to pursue allegations against executives: their fear of retaliation.

But retaliation happens, and HR professionals know it.”

Debra Katz, a partner with Washington, D.C.-based Katz, Marshall & Banks who has litigated employment discrimination, civil rights and whistle-blower protection cases for more than 30 years, says, “That’s very problematic, because HR officials often are at risk if they go to the mat on some of these things,” she said.

So, what should one do?

Hire the Right HR Person

“When considering an HR candidate, interviewers should ask how comfortable the applicant would feel questioning executives and mid-level managers about their behavior and holding them accountable, said Alisa Shorago, an attorney and owner of San Diego-based Shorago Training Services, which provides anti-harassment training.”

Here’s a new and interesting piece of advice.  “It can also be helpful to arrange for a company’s HR department to report to someone other than senior leaders, said Stephen Paskoff, president and CEO of ELI, an Atlanta-based company that helps organizations address bad behavior in the workplace. That could be an ombudsperson, outside counsel or board members.”  While I have never heard of this practice before, I can easily see why it is suggested.

Just looking at the several excerpts contained in this one article, it’s clear to see the potential pitfalls and double-edged sword which HR folks will face and need to be wary of at all times.

I’ve had the good fortune to have been in the HR field for a long time.  I’ve worked with a lot of different HR and line business leaders – all different, including their work styles and personalities.  All of these examples cited are real and affect us.  If they haven’t happened yet, they likely will.

In the final analysis, sometimes HR does, in fact, get it wrong.  We’re only human.  When it happens, own up to it, fix it if you can, and you will likely never make that same mistake again.

While I appreciate the excellent advice these four articles have afforded me, at the end of the day, HR should always try to: do the right thing – and it’s certainly not always going to be easy to do.  I hope you will agree.

Good luck.

the HRmeister