With the topic of workplace harassment recurring in the news, business leaders are taking steps to make sure they are providing a work environment that is civil and safe. A panel of human resources experts on March 21 discussed some of the steps they take to prevent harassment from happening, and best practices for responding to complaints.
Please discuss the legal definition of harassment.
Harassment, when you’re talking from a legal perspective, is rooted in some type of behavior aimed at a protected class: gender, religion, race, national origin, age, disability. If it’s pervasive and it’s based on a protected class than that can rise to a level of a legally actionable harassment claim.
Compare that with the type of behavior that might be more unprofessional or uncivil conduct in the workplace or bullying. Sometimes people say, “Well, my boss doesn’t like me,” or “I have a coworker that’s treating me poorly.” I’m guessing everyone’s dealt with that in the workplace. That’s more the respect and civility piece, which is not necessarily legally actionable; it’s not really unlawful. But it can be a violation of your internal policies and it can certainly create problems down the road. The EEOC has said that that unprofessional conduct and incivility is what they call the gateway drug to harassment. Because if you let that go without reining it back in, it can create an environment where you’re going to have discrimination and harassment problems. That’s the difference on those two fronts.
In my business, when we’re talking about these things and we’re talking about our services, I tend not to lead with a compliance piece but I do lead often with the respect and civility and anti-bullying conversation. It really is the foundation. If you don’t have good workplace practices around how people treat each other in the workplace it will then open that door for illegal harassment. And, quite frankly, I think that most of the things that people deal with in the workplace are really this lack of respect. I spend a lot of time talking about what that looks like and how that feels for people, and it’s very broad in a lot of ways. But I also think that we need to be reasonable. We’ve all got some pretty thin skins anymore and perhaps gone a little too far on some of that. But that lack of respect in the workplace is really where I focus a lot of the time.
Patti Perkins, CEO & owner of Calyx-Weaver & Associates
Peggy Jones, Albertsons Companies vice president of human resources
Toni Vandel, manager of human resource services at Idaho National Laboratory
Pam Howland, owner/attorney at Idaho Employment Lawyers
Because we’re a retailer, we are also dealing with customers, so part of that is creating the environment you work in is not only with your fellow employees but also with the customer. We have a lot of customer service training as people start. We do our training. We call it ‘courtesy, dignity and respect’ or CDR training. Every new employee goes through some of that CDR training and we created scenario-based training, because we feel like that’s the best way for our people to understand what we’re dealing with. One of the challenges of our group in a store is that he or she is dealing with a hundred people in that store. They’re dealing with 16-year-olds who are there to get their gas money. They’re dealing with some 70 or 65-year-old people who are in there for extra retirement money… We focus on courtesy, dignity and respect with each other as well as with our customers.
We do a lot of individualized training. When someone comes in with a complaint, we talk about what’s been going on, how you might define those behaviors. And help them sort that out as well. Because sometimes people will come in and just use buzzwords to get attention and response. If you help educate them and still respond, then they’ll come in with those concerns about respect, which are very important and are gateways to behaviors you don’t want to happen anymore.
Has there been a rise in complaints or discussion of harassment?
There certainly has been a rise in discussion and people wondering if what they’re experiencing is harassment or just a lack of respect.
I haven’t seen an increase in lawsuits or claims. It’s always been a steady part of my practice. Even before all the headlines, there were a number of claims being brought and lawsuits being filed. Anytime an employee wants to sue their employer they have to go to the Human Rights Commission. They have reported in 2017 an increase in discrimination claims overall and then the director of the Human Rights Commission did an informal survey of the statistics from October to January and found about a 7 percent increase in harassment claims. Locally, the data shows there is probably an increase in claims. The EEOC said there is not necessarily a huge uptick in claims but we are seeing a lot more activity and a lot more people asking the question, “Should I bring a claim against my employer?” but not necessarily pulling the trigger on it.
We might see more of it in 2019.
In addition to the conversations being greater, the managers’ responses are much better than they have been in the past because they are asking questions when their employees come to then, where in the past they haven’t really felt equipped to do that. Seeing that the managers are willing to ask for help and address concerns early on is a significant achievement for our laboratory.
Are managers better equipped to handle claims than they were in the past?
In some cases, I see that they are better equipped. And what I see is that they’re asking more questions. They’ve gone through training; they know how they’re supposed to respond but it’s very different to watch a video training than it is to have a real life example or experience with one of your employees that you care about. You don’t want to have your employees go through difficult situations and when they come to you and tell you that they are, they want to help and in the past they didn’t really know what to do about that.
If someone doesn’t have access to an HR department, how do they respond?
They have to get training somehow. Even if they don’t have the resources, it’s got to be provided, and not just a video training. The EEOC is now saying that not all training is created equal.
There’s a handful of components that employers have to do if they’re going to avoid claims. Do you have the right policies in place? Is your employee handbook updated? Does it comply with what the EEOC is saying you have to have? The EEOC did a survey in 2015 (they call it their Taskforce on Harassment) and as a result of all the data they compiled they have a series of checklists that say ‘this is what your policy has to have’. A 15-year-old handbook isn’t going to cut it.
Training is the same thing. It has to be to the right people and it has to have the right content. All employees need to get trained. Your supervisors need to have it more in depth and to a different level, because most policies say if you have a problem talk to your supervisor. But if your supervisors don’t know what to do, it’s not going to do any good.
How should supervisors react to a complaint? What’s the first thing a manager should do?
They really need to listen, ask questions, have them explain when and where, anything that they can get the employee to tell them about helps them make a decision. Helping the employee feel comfortable enough to tell you that is really the key. Then you should call someone who is an expert and ask for help. Those are the first two things you should always do: listen and call for help.
Even if you are not comfortable probing for many details, listen to what the employee has to say and make sure that they feel like they are being taken seriously. If you think about a lot of the cases that hit the news, one of the things that happens so frequently is that the complaint wasn’t taken seriously or it was about someone who was too important to the organization and they didn’t want to follow it up and so the employee was really discouraged from pursuing it and getting it resolved at a level where it doesn’t explode years later.
Listening is huge.
Has anything changed after recent education and discussion? Is it any easier to handle?
I don’t think it’s any easier to handle it. But there’s enough discussion about it that businesses are realizing that it’s a time bomb if it doesn’t get handled. They are putting more mechanisms into place to make sure that it can be addressed. It’s never easy to address.
The first inclination is always to cover and protect, whether that’s cover and protect the person or cover and protect [the organization]. My sense is: that is maybe your first inclination but now you know you can’t do that now because we’ve got so many great examples of what happens if you do.
In the past, the mentality was, “well, harassment and discrimination are HR issues. Just let your HR department handle it.” And now the mindset is moving towards, “this has to come from the leadership.” You’re never going to have an effective program unless leadership understands the law, understands what’s required and puts the right mechanisms into place. If they’re taking enough time to understand the law then they know that there is a liability if it’s not handled and if they’re giving HR enough empowerment to handle the issues then it’s going to help resolve that kind of stuff.
Talk about expectations in the workplace, and have a standard set of values that the leaders in the organization model. If employees see that their leaders and managers are holding themselves accountable and holding each other accountable it makes a big difference. If they see that the leaders are not being sheltered or protected, it gains a lot of credibility for the organization.
What kind of harassment and discrimination do you see in Idaho?
If you look at the Human Rights Commission statistics, the biggest source of claims right now is disabilities. If you work in HR, you know that the law has changed in the 2008/2009 time period related to the ADA. Disability claims are huge and I would say that’s consistent with my practice. I see a ton of lawsuits rooted in allegations of disability discrimination and FMLA violations, worker’s termination, when someone’s taken a worker’s compensation claim. That is one of the biggest areas locally and I think that’s consistent around the country too.
As for someone getting terminated after bringing a claim, if you’ve watch the news then you see that some of the most high profile cases over the last couple of years in Idaho with large jury verdicts have been retaliation claims: employees claiming they were terminated or suffered some kind of adverse action in the workplace, whether it was a demotion or a pay decrease after bringing a claim forward, after participating in an investigation. Those are the two biggest sources of claims right now locally.
What kind of investigation do you do to determine if the claim is real or false?
If your investigation is thorough and appropriate and complete, you would be able to determine that. And in some cases, action is appropriate when somebody is filing a false claim. Now I don’t know if it necessarily rises to the level of termination, but it’s certainly something you should look at why it happened and how you correct that type of behavior, because we have to be realistic, those things do happen in the workplace as well.
It’s a credibility determination. Those are hard to make. Not just anybody can do that. You need to have an experienced professional who practices in this area and really understands how you make those determinations.
In my practice, that’s where I see a lot of employers end up with more liability or an inability to defend themselves, is when they don’t give the investigative process enough time or enough expertise. They try to handle it themselves. In the harassment and discrimination world, that isn’t good enough. That doesn’t satisfy what is expected to be a thorough investigation. So I counsel my clients that you either need to have someone internally trained on how to conduct an investigation or you need to get outside expertise when it comes to doing it. If that’s done right, it can provide an employer a total defense if they get sued later. If it’s done wrong, then it’s a problem for the employer and it makes it much more difficult to defend themselves.
What are some common mistakes that managers make?
‘Boys will be boys’ or ‘that’s the way it is around here’. A lot of people in the workforce are willing to come out and say, “No that doesn’t work for me anymore.” You’ve got to help your managers understand that they have to take this seriously. Learn how to listen, ask questions and get details.
We have a couple different avenues managers can reach out to to get advice. Our key thing is to get them to reach out and get that advice. I think that’s what’s changing because of the whole society discussion. They’re willing to say, “I might need some help with this one.”
Oftentimes the biggest challenge for people is that they have felt in the past they could deal with it just within their own organization and the problem would go away. They won’t go away. The reason things explode is because they weren’t handled properly, they didn’t have the right training and they didn’t ask the right questions. Sometimes they don’t ask any questions at all.
One of the things I’ve been doing quite a bit of research on is what prompts true sexual harassment in the first place. It’s generally men and there is a power component with that that you may or may not think you have in your organization. But if you look at these really high profile situations, these were powerful men who thought they could act any way they wanted. There was no governor on their behavior at all. Most of us read these stories and ask, “Who acts like that? Who does this stuff?” There are some pretty bizarre behaviors. What would prompt anybody to do that?
There are a lot of studies around what having power does to your thinking. It really does change your thinking, whether you are male or female. You think differently and respond differently if you feel like you’re a powerful person. You have decreased empathy for others. That’s the foundation piece which then people will then be able to get some bad behavior going. Then, when you feel powerful, not only do you have less empathy, then you have an unusual sense of optimism and confidence in your own abilities, which then leads you to risky behavior because you’re so confident in your abilities you think you won’t get caught. There’s kind of a perfect storm of circumstances that happens with powerful people.
You have to look at the other research that has been done about how men think about sex. They are different from women, which nobody wants to acknowledge anymore. They think differently because that would be exciting to them, they think it’s exciting to women.
The sexual harassment training that we do doesn’t talk about any of that because it’s embarrassing. It’s too specific; it’s detailed. This isn’t a blanket indictment of men and how they think, it’s just an acknowledgement that when you get a number of factors that all layer up, it predisposes somebody who’s at that powerful level to have that bad behavior.
Garden variety sexual harassment goes back to lack of respect and a culture that tolerates it in an organization.
If you’re trying to figure out what to do, check out the EEOC. They have a checklist that identifies potentially harmful employers. One of the high risk categories is organizations with big power disparities. Others are remote offices, a lack of diversity, the millennial workforce (they say that the millennial mindset is a little different), workplaces that encourage alcohol at events… there are probably 10 high risk factors on the EEOC checklist.
The power dynamic works the other way as well. Individuals who are senior in the organization or have expertise in areas that are unrelated to handling something like sexual harassment, when they get a complaint, they view their expertise in whatever field as expertise in that field, so they think they know how to handle it. They don’t want to ask for help. That’s risky behavior.
It’s important to get people to recognize that their hearts are in the right place generally but they don’t have the expertise to handle those situations. You need to gain their trust as well so that they will ask questions. They really need to rely on those subject matter experts and not assume that they have that same level.
How do you get leadership to set an example of civility?
In our cases it starts with our executive VP who makes sure at the top that they do have conversations about things that are coming up. That’s why we have a strong HR presence – to help people understand what they can do and not do. We have to spend a lot of time having these conversations, using examples. What’s happening nationally does make it easier to talk about internally.
One of the things that’s really difficult about this – and it was showcased in the big Uber thing – is that they brought a lot of complaints to HR, and HR couldn’t get it resolved. We don’t know what they tried to do. We do know that person that was blogged about was considered a high value employee. When they tried to do something they got the message: “If you want to keep your job, you better not pursue this.” That is a really tough spot for HR people.
Do HR put their own job at risk?
Pam Howland:[Uber] had a giant workplace investigation because there were dozens of claims. They had all this horrible publicity. And they hired a Seattle law firm to do this massive investigation to find all the facts and what went wrong. They have an executive summary that talks about, “what does our organization need to do to fix the problem?” and a lot of the things in that executive summary are aimed at how we get leadership to change the mentality here.
You have to hit their bottom line. If you have a board that reviews your CEO, a portion of their comp is going to be, “are you promoting a respectful workplace? Are you promoting anti harassment and anti discrimination rules? And are you playing an active role in making sure we’ve got the right workplace here?” That’s one idea for really large entities but I don’t think it’s an easy one to implement for mid-size or smaller groups.
To be an effective HR person you have to be willing to lose your job.
Some leaders understand this and that’s how they live anyway; they have the capability to be respectful and they choose to operate their business and their life outside of work and that’s how you see them behave in the workplace. Those kinds of people are so important to the success of an organization.
If an employee complains that a coworker is writing her love letters and she complains repeatedly but asks the manager not to tell HR, what should the manager do?
Tell HR anyway.
Workplace confidentiality is oversold. In these type of issues, you can’t promise confidentiality or you can’t investigate the issue. Good policies will say, “We will maintain your confidentiality to the extent we can, but in reality if you’re going to accurately chase something down, you got to be able to take a complaint like that and handle it.”
I lot of policies encourage employees to try to handle the problem themselves first. But if they are not comfortable doing that, they need to take it to the manager so they can handle it on the next level.
When a romantic relationship with a power disparity starts off as apparently consensual then one person complains it was not, how does HR handle this?
That’s something that does really need someone with expertise. I don’t think a manager can really address that, because the whole idea of consent when you have a power disparity is sort of the same argument that a child cannot consent. It’s not the same but it’s the same type of argument. If I think I have to comply or look like this is consensual to save my job, is it really consent? I think that that requires some expertise.
Hopefully you’ve got a policy that says that that’s not allowed. That’s playing with fire.
If your managers are being educated to spot issues, hopefully they are realizing that this is a problem.
Most of the policies I see that you can’t have romantic relationships where there is a reporting relationship. But sometimes in larger organizations, you can have a power disparity without being in that reporting line, so the policy doesn’t help you as much as you think it might because of that.
When should a manager not try to handle it on their own?
If an employee comes to a manager with an instance of harassment or assault, you don’t handle that on your own. You go right away for help.
I like to err on the side of caution. It doesn’t mean if they go to HR that HR will handle it for them. But they will walk them through the process of the parts they can handle on their own. We don’t want to manage their business. We want to provide them with a resource. In some cases, that means we have to be much more hands-on with them in that issue but not managing their business.
You’re always risk-weighing. How risky is this? There are always certain factors that create a lot of risk. For example, I have a lot of clients who call and say, “I have an employee in the workforce who says they have a lawyer lined up and they’re upset.” Sometimes you just have employees that threaten claims and litigation. Those are high-risk folks. Whenever they come to you with anything, you don’t want to play around with that. You want to investigate it.
If there’s a claim against a high-level executive, that needs to be escalated too.
If it’s something that, if true, would be a legal violation and a liability for the company, that needs to be escalated too.
Sometimes people say they wonder if they can joke with co-workers anymore. Does this concern come up and what do you tell people?
I don’t think anybody wants to work in an organization where you can’t laugh and you can’t have a good time and you can’t kid around, but it goes back to being civil and respectful. I can have political conversations and we can disagree because we are both respectful. There are some people where I won’t have that conversation because it will turn into an argument. You have to know your audience.
You are dealing with human behavior and there is never going to be a black and white rule for any of this. It is always going to require some level of judgment. With the training and coaching that we provide as professionals, you’re always trying to guide people toward making a good judgment. If you are respectful and have empathy, you’re not going to talk to someone and say something you know is going to upset them.
You do have to think differently. I’ve been in situations in the past year where the brain was going to say something and luckily we stopped. You have to make yourself say, “Where am I? This isn’t my college girlfriends I’m hanging out with. This is a business meeting.” You have to remember the place where you are and have that respect. You do have to be careful.
Most people understand that there’s a line that you cross, and there will be times when you do step over the line. You have to be respectful and say, “I’m so sorry. I didn’t mean it to come out like that. That was bad. I hope you forgive me.” Then you move on and you don’t do it again.
The law hasn’t changed. It’s never been okay to make sexual jokes in the workplace or jokes about someone’s age. The only thing, if anything, that has changed is social norms and the law to a certain extent related to LGBTQ issues. There are some definite changes in disability issues. That trips people up.
But as far as basic conversation goes, nothing has changed. You were never supposed to be joking about those issues anyway.
Has there been a backlash from so much attention to this issue? Is there a witch hunt underway?
I haven’t seen it.
I’ve heard about it but I haven’t seen it. The backlash I’m concerned about is women continuing to be included in business meetings. “I’m not going to have a meeting with a woman unless my wife is there.” When men get too afraid to have a business conversation with women for fear they’re going to unfairly claim something – that I’m concerned about.
What are the most common misapprehensions and questions you get at trainings?
That distinction between what is harassment in a legal sense and what is bad behavior in the workplace is what people don’t understand. That’s where a lot of the conversation happens. And it doesn’t mean it’s any less important to deal with; you just deal with it in a different way.