jonathan-cat-shelterJonathan’s preventive and corrective approach to employment/HR issues includes counseling, policies, training, agreements and audits. Areas of substantive focus include, for example: gender equality, wage and hour compliance, social media and employee engagement. When Jonathan isn’t counseling employers or dedicating his time to SHRM and the HR community, he can be found volunteering his time and efforts to animal rescue. Jonathan is also deeply committed to Holocaust remembrance. On the fun side, Jonathan is also mad about Mad Men, writing and speaking on the employment issues arising out of the MadMen Era! Follow Jonathan on Twitter @Jonathan_HR_Law.

A Very De Minimis De Minimis FLSA Exemption

I am pleased to share my latest post to the SHRM Blog.

As a general rule, employers must pay non-exempt employees for all time that they work (broadly defined) and that includes getting ready for work (preliminary activities) and finishing work (postliminary activities).  As discussed below, there is a de minimis exemption under federal law (FLSA).

In a recent case involving Starbucks, the California Supreme Court held the de minimis exemption was not available under California state law under the facts of the case.  If and when the de minimis exemption may be available under California state law will be decided in future litigation.

Some of the legal summaries of the Starbucks case suggest that the federal de minimis exemption is broader than it is. It is very narrow.

The following statement comes from the website of the United States Department of Labor:

Insignificant Periods of Time

In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded.  The courts have held that such periods of time are de minimis (insignificant).  This rule applies only where there are uncertain and indefinite periods of time involved, a few seconds or minutes in duration, and where the failure to count such time is justified by industrial realities.  As noted below, an employer may not arbitrarily fail to count any part, however small, of working time that can be practically ascertained….

https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenee29.asp

Notice some key concepts from the DOL’s enforcement position: (a) short (few seconds or minutes); (b) uncertain (cannot be regular occurrence;) (c) indefinite (which generally means not predictable amount of time each occurrence) and (d) cannot be precisely recorded (vague enough?)

Employers should draft their policies, train their managers, and review their practices to minimize the possibility that there will be any work for which an employee is not paid.  Think of the de minimis exemption only as last resort for litigation.

Employers need to consider work not only at beginning and end of the day but also any work that may be done during an unpaid meal period.  Another issue that needs to be considered is any work that may be done remotely, such as by telephone or e-mail.

The possible case scenarios go beyond this blog but employers need to think them through in drafting compliant policies, training managers and reviewing actual practices. Failure to do so may result in off the clock cases with off the clock judgments.

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

Suicide and the Workplace

Because mental health matters, here is my SHRM Blog on suicide and the workplace.

This past month, two celebrities took their lives, Kate Spade and Anthony Bourdain.  To be more specific, they committed suicide.

It is important to say the word “suicide” because many media reports, at least initially, did not.  There is still, for some, discomfort with mental health issues in general and suicide in particular.

As with #metoo, high-profile cases draw our attention to an issue that is not limited to the high-profile.   Alarmingly, the suicide rate has increased by 25 percent since 1999.

But what does this have to do with employers?  Do employers have any legal duty to prevent suicide?

For the most part, the answer is generally “no.”  But that does not mean employers should not focus on the issue.

The law sets a minimum.  Responsible employers who genuinely care about their employees go further.

What can you do as an employer? What should HR do?

  1. Educate yourself and your leaders on suicide.  Severe depression, often coupled with substance abuse, is one of the primary causes of suicide.  Do not expect employees to just “deal with it.”  Substitute “cancer” for “depression” and you will see how cold and/or ignorant someone may sound if they suggest mental illness is weakness.
  2. Offer your employees access to professional help by way of an employee assistance program (an “EAP”).  As we all know, an EAP is a very inexpensive way to offer employees anonymous support for myriad issues from substance abuse to marital problems to suicidal ideation. If you don’t have an EAP, make the business case to get one.
  3. Share with your employees information about the national suicide prevention hotline.  I will do that just now: 1-800-273-Talk (8255). Why would you not?
  4. Emphasize when you discuss your health benefits both physical and mental health.  It does not hurt to message explicitly that there is no stigma in getting mental health support—no more than getting dialysis.
  5. Consult with a professional if an employee is talking about suicide, directly or indirectly, or if you have objective reason to be concerned about an employee (e.g., talking about helplessness). Obtain guidance on how to speak with the employee.  Yes, there may be some risk under the ADA in removing the employee from the workplace and requiring an assessment (‘perceived disability’ claim).  But that risk must be balanced against the human risk (among others) if your fear contributes to the employee’s decision to end it all.  Further, with careful planning, while the ADA risk cannot be eliminated, it can be minimized materially.
  6. Respond to disparaging, demeaning or hurtful comments about mental disabilities.  Such comments may increase the unwarranted shame and the risk of suicide.  Indeed, address as part of your efforts to educate your workforce on unacceptable behavior of a harassing nature.
  7. Revisit your wellness program.  Is there enough focus on mental health?  Do not assume the answer is yes. We need to add light to the issue so that people do not hide for fear of societal judgment and the life-threatening risks that go with it.
  8. Focus on respect in your leadership training. Being abusive may not be illegal but it is bad behavior that may take its victim to an even darker place.  Bullies are weak but they inflict penetrating pain.
  9. Get help yourself if you have had thoughts about suicide.  It is not weakness.  I cannot think of any greater act of strength.

 

Option B: Lessons from Sheryl Sandberg on Supporting Grieving Employees #SHRM18

I am pleased to share my latest post to The SHRM Blog regarding Sherl Sandbergs advice on how to support grieving employees.

I am excited to hear Sheryl Sandberg, COO of Facebook, speak later this month at SHRM’s Annual Conference & Exposition in Chicago.

Sheryl is best known for her 2013 book Lean In. In this blog post, I want to focus on the book she wrote last year, Option B, with her friend and professor at the University of Pennsylvania, Adam Grant.

Option A is the employee’s life with a loved one. Option B is surviving without him or her

Option B is based on Sheryl’s loss of her husband, Dave, and her painful but inspirational journey forward. While the book is primarily about emotional resilience, it also provides valuable lessons for HR and other leaders. Here are seven:

  1. Do not avoid discussing the issue for fear you will remind the person of the loved one he or she has lost. Do you really think he or she can forget?
  2. Do not avoid the person. We may do that consciously or unconsciously to avoid the discomfort associated with the issue. Even Sheryl said she felt isolated. Try being as strong as the person suffering.
  3. Ask “How are you today?” rather than “How are you?” As she notes, this shows that you recognize there is something bigger than the day going on in the person’s life without expressly saying it.
  4. Don’t ask “What can I do?” She explains that this puts the burden on the person struggling to help you help them. Instead, offer a specific way you can help.
  5. Do something specific. Tell the person you are thinking of her. Buy him coffee. Send her a book by an author she likes. Just do it.
  6. Don’t say things that unwittingly diminish your colleague’s pain, such as “He’s in a better place.” Are you sure? Instead, tell the person you know it is hard and you are available to listen or help (but only if you mean it).
  7. Revisit your bereavement policy. You may want to add additional unpaid days that a person may take in some circumstances.

In addition to what I learned from Sheryl, I need to add a legal caution that, fortunately, is consistent with common sense.

Listen more than you talk. Do not ask if or suggest that the person is depressed or otherwise needs help. That could buy you a perceived disability claim under the ADA.

Of course, you can remind the employee of the EAP. Is there some risk in recommending the EAP? Sure. But not as much as appearing heartless.

I am excited to hear Sheryl at SHRM18. It is not too late to register.

An Epic SCOTUS Decision on Class Action Waivers

I am pleased to share my latest article, written for Philadelphia Business Journal, on a recent ruling of the U.S. Supreme Court.

By a 5-4 vote authored by Justice Neil Gorsuch, the U.S. Supreme Court held in Epic Systems Corp. v Lewis that the National Labor Relations Act does not prohibit employers from using arbitration clauses in employment contracts to prevent workers from filing class actions over workplace issues.

Some describe this as a big win for employers. I think it can be described more accurately as an opinion that creates a decision point for employers.

As a purely legal matter, some employers may prefer one class claim before a judge than the specter of a large number of individual claims before an arbitrator.

As an employee and public relations matter, some employers may elect to exclude sexual harassment claims from any ban on class claims for the same reason that some employers are voluntarily taking the position that their mandatory arbitration agreements do not apply to any sexual harassment claims.

As a public policy matter, the decision likely will rejuvenate support for the Senate Bill entitled Ending Forced Arbitration of Sexual Harassment Claims, which has bi-partisan sponsorship.

The bill goes further than its title suggests, preluding mandatory arbitration of any claim of sex discrimination that could be brought under Title VII, such as pay equity claims, even if Title VII is not mentioned.

It should be noted that a bill that restricts mandatory arbitration, if applied only to sexual harassment, may not be as partisan as most of what we see in Washington.

In February, all 50 state attorney generals, Democrats and Republicans alike, signed a letter to Congress demanding that the law be changed to preclude mandatory arbitration of sexual harassment claims.

This would not be first time a Supreme Court decision spurred legislative action. Remember Lilly Ledbetter‘s loss before the high court only to have congress enact a law with her name?

Stay tuned—this story is far from done!

Why Holocaust Remembrance Day Matters: 2018

I am pleased to share my latest post to The SHRM Blog on the continued importance of Holocaust Remembrance Day.

The United States Congress created the Days of Remembrance as our nation’s annual commemoration of the Holocaust.  This year, Holocaust Remembrance Day (Yom HaShoah) is today, Thursday April 12, 2018.

During the Holocaust, more than 11 million human beings were systemically murdered.  That includes 6 million Jews, 2/3 of the European Jewish community at that time.  That percentage still boggles my mind.  In my family, the percentage was much higher.

But the numbers would have been even worse were it not for the countless “righteous gentiles.”  The term “righteous gentiles” is used to refer to those who are not Jewish and who risked their lives to save Jews during the Holocaust.  They are specifically honored in Israel and throughout the world.

Today, I share with you a link to some of their stories. Please read about these heroes. Their stores are beyond inspiring.

On a personal note, I thank the Polish Church that hid my great aunt at their peril. Her daughter later adopted children from that same Church. .

And, of course, there were the millions of American and other service men and women who lost their lives in fighting Hitler’s machine.  They, too, cannot be forgotten.

I share this link to one story of their bravery.  You can find so many more by  using Google.

Unfortunately, this year Yom HaShoah feels more significant than ever, at least to me. Anti-Semitic acts and attitudes are, according to numerous reports, at post-Holocaust highs worldwide.

So what does this have to do with Human Resources?  Of course, one connection to Holocaust Remembrance Day is the “human” in human resources.  But it is more than just that.

This is not a day or week in which we celebrate the achievement or contribution of any group or people.  In remembering the Shoah in our workplaces, we are reminded of how important it is that we brook no hate.  It is also a time to recognize those employees whose lives were affected and shaped by this horrific period in history.

One way to do so is simply to post on your Intranet a remembrance statement.  You can find words and images all over the Internet. You still have time to do something today.

This is also a great topic for a diversity and inclusion program . The diversity in experience but the universal message that includes all:  we cannot tolerate intolerance against any faith, race, ethnicity, etc.

Include in your anti-harassment training examples of Anti-Semetic comments or actions. Of course, this must be in the context of religion harassment more broadly.

And, of course, every day, we must do our best to make sure that hate has no place in our workplaces.  A strong policy is not enough. When it comes to hate-based harassment, if you are in human resources or other leader, there is no such thing as a “passive bystander.” To ignore is to be complicit.

As Jews, we often say “Never Again.”  And, when we say that, we mean to anyone–at any time–anywhere.

Shalom (Peace) to all.

#MeToo: Marrying Compliance with Culture

I am pleased to share my latest post to The SHRM Blog.

No one can credibly deny that sexual harassment is a persistent and pervasive problem.  It infects all industries; none is immune.

While this blog focuses on sexual harassment, we must create cultures that do not tolerate any kind of harassing behavior, such as harassment based on race, ethnicity, age or disability.  Harassment of any kind is the enemy of inclusion.

As employers, we must protect from harassing conduct not only our applicants and employees but also others who work with them. At the same time, we must ensure that there is due process for those who are accused of causing harm; after all, not every complaint is necessarily true.

In all cases, however:  every complaint must be taken seriously; every complainant must be treated with respect and dignity; and every investigation must be conducted promptly, thoroughly and impartially.  The process by which we investigate harassment claims plays a key role in determining whether employees–as complainants, witnesses or accused–trust the process.

If a company concludes that someone has engaged in sexual assault, unlawful harassment or harassing behavior, even if the harassing behavior is not “bad enough” to be unlawful, an employer must take prompt and proportionate corrective action.   Sometimes, but not always, that means termination.

Of course, no matter how strong our commitment to avoiding harassment may be and appropriate corrective action where unacceptable conduct has occurred, our commitment will not be realized, unless there is a culture that does not brook retaliation by anyone of any kind. If people are afraid of retribution, they won’t speak up, the process will fail and individuals will suffer in silence.

To ensure there is neither harassing nor retaliatory behavior, employers must focus on compliance.  This includes, by way of example only, a strong anti-harassment policy with a robust complaint procedure and strong assurances against retaliation.

We also must train our leaders not only to avoid bad behavior but also to call it out “in the moment” if they see or hear it.  To be silent is to be complicit, and the cultural message  resounds loudly.

Our compliance efforts should reflect and reinforce a culture where respect is expected and harassing and other bad behaviors are shunned, indeed condemned.  In a strong culture, you don’t get along by going along with harassing conduct. You get along by treating colleagues respectfully.

This is not to suggest compliance is irrelevant and culture is everything.  The key is to marry culture and compliance.

Your compliance efforts should improve your culture and your culture must inform your compliance.  Bottom line: our compliance efforts must become part of our cultural DNA.

4 Red Flags That Administrative Work is Sucking the Life from Your Team

I am pleased to share my latest article posted to Entrepreneur.

Entrepreneurs live to create, develop and refine products and services. They love using creativity to make a difference. The smart ones know they need the support of those who are comfortable with administrative stuff. Somebody has to make the trains run on time!

Administrative work needs to be valued but, over and over, I hear entrepreneurs complain they spend too much on administrative work of questionable value. “Administration” can become a behemoth that crushes creativity and steals time. Here are four red flags that administration may be interfering with your mission.

1. To get an answer you have to talk with many people.

If you regularly need to speak with five people to get one answer, you have a problem. Time is not only money but also energy. When no one knows the whole picture, then those with power will have more power but at the expense of profitability and the sanity of the employees.

2. Regularly hearing “not my job.”

Most employees sincerely want to do a good job. More often than not, employees welcome the opportunity to expand their skill. Of course, there is the occasional employee who will say “not my job.” But, what if that is something you routinely hear from different people in different words or ways?

The pattern may speak volumes. As insane as it sounds, the employees may have been instructed not to help. Use your people skills to ask directly and respectfully why the resistance. Listen not only to what is said but also what is not said. You may find the employee is uncomfortable with not helping as you are in getting the help you need. But, the employee is simply following orders.

3. Rigid rules instead of value-based rules.

We need values-based rules, such as not tolerating harassing conduct, and to enforce such values-based rules aggressively. This is different from rigid rules relating to operations that have no relationship to values or the evolving nature of business.

Every organization must have structure. But, some rules are implemented just to give those who enforce them power. In other cases, a rule may have made sense at a given time but no longer does. Ask why the rule exists. Sometimes people don’t even know why they have rules other than, “We always have done it this way.”

Other times the rules assume the worst of all employees. Guess what: that’s what they bring out, too.

4. Redundant paperwork.

A friend of mine refers to the term as “administrivia.” The more forms, the better. To increase the torture, administration insists on multiple signatures. Worse yet, only certain people can fill out those forms. A salesperson I met took a job for less pay because she was tired of filling out forms rather than taking care of customers.

If you are considering applying for a job with the government to escape the behemoth bureaucracy that hides under the label of administration, you have a problem.

What do you do? Stop complaining about administration if you feel your administrative function is out of control. Make sure those in leadership know where administration provides support or where it creates unnecessary obstacles.

If you provide factual concrete examples to leadership where administration provides unnecessary obstacles, you should get relief. If not, you may need to look to another employer to provide it.

Bystander Interventions Without Paternalism or Re-victimization

I am pleased to share my latest post to The SHRM Blog.

Responsible employers, among other steps, train managers on their “bystander” obligations. It is not enough to refrain from bad behavior. As a bystander with power, if you see or hear harassing behavior, you must respond to it. But how?

Let’s take a “hypothetical.” A business meeting takes place among executives.  There are four men and one woman.  During the meeting, the group realizes they are not going to meet Wall Street’s expectations. One of the men snaps “oh F…”

After he said it, the F bomber looks to the one woman at the table and says, “I’m sorry.” Another man at the table digs the hole deeper by adding:   “He did not mean to offend you.” [How did he know that?]

By focusing on the one woman at the table, both male executives not only drew attention to her (re-victimization) but also suggested that she was a fragile creature who needed to be rescued and protected from their vulgar mouths (paternalism).

In this hypothetical, the woman was not offended by the expletive when it was used in response to bad economic news.  But she certainly did not like the attention being placed on her.  Having finished reading Jane Austin, she was not going to fall off her Victorian chair because of a curse word.

In this case, if anything were to be said, it should have been: “let’s keep it professional” but without focusing on the woman.

Change the facts: what if what was said was a “joke” that demeaned women? Should not someone apologize to her now?

NO!  Again, that only makes her the focus.  In other words, it makes it worse.  Plus, it suggests, were she not there, the demeaning comment would have been okay.

The focus should be on the person who made the comment.  Looking at the person who said it, someone with power (including HR) should say: “That is offensive to me. We will talk later.”

Respond “in the moment” so that others do not assume your silence is complicity. Then, take appropriate corrective action more confidentially.

Preventing harassment is more than preventing liability; it is about preventing harm. We need to train on “in the moment:” responses to bad behavior, or we may create harm in the process of trying to correct it.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

Friends Do NOT Let Friends Engage in Harassing Conduct

I am pleased to share my latest post to The SHRM Blog.

As a result of the “great awakening” last year of the persistence and pervasiveness of sexual harassment, we all know that more must be done to tackle this scourge.  Companies are looking to enhance their preventive efforts, and, of course, that must start at the top.

To minimize the burden on victims, employers are empowering “bystanders.” For examples, employers are—or should be–modifying their anti-harassment complaint procedures to the extent necessary to make clear that an employee does not have to be the object of unacceptable conduct to raise a concern. Employees can raise concerns if they are “bystanders,” that is, if they see, hear or otherwise become aware of harassing conduct.

Leadership training also should include a bystander component. If you have power and you see or hear harassing behavior, you must make clear, “in the moment,” the conduct is unacceptable and then take prompt and proportionate corrective/disciplinary action.

I keep asking myself: what more can bystanders do?  I have one suggestion for consideration: peer-to-peer interventions.

Take the following example:

  • An employee sees his friend look a female co-worker “up and down.” To the best of the employee’s knowledge, no one but he has seen the unacceptable conduct.
  • The employee has no power over his friend. And, he does not want to get his friend in potential trouble by filing a complaint, but does not want to ignore the conduct either.

If the employee is a true friend, he will talk with his peer. Consider the following response:

  • I have bad news and good news.
  • The bad news is that the way you just looked Jane “up and down” is not okay.
  • The “good news” is that I am telling you now so you don’t ever do it again.
  • This conduct demeans women and makes you look bad, too.
  • Please promise me you won’t do this again and will review the Company’s anti-harassment policy.

The emperor wore no clothes because no one told him he was wearing none.  There are degrees of unacceptable conduct, and sometimes a peer can jump in before what he or she sees or hears causes harm not only to others but also to his or her friend.

Of course, there are legal nuances that need to be navigated before incorporating peer-to- peer interventions into your employee training/education.  Those nuances go beyond this blog

For now, it is very simple: friends do not let friends engage in harassing behaviors.

 

Construing a Continuum of Harassing Behaviors

I am pleased to share my latest article posted to Bloomberg Law Insights.

We hear many people use the terms “sexual misconduct” or “sexual harassment” to describe a continuum of harassing behaviors. Further, more and more employers are adopting or reissuing “zero tolerance” policies for such collectively defined behaviors.

Of course, we must put an end to the litany of horrific behaviors to which women (and some men) have been subjected. There is no defense to the indefensible.

But we also need to be careful not to use a single label to describe a broad spectrum of unacceptable conduct. For example, we all know that a sexually suggestive comment on someone’s appearance is objectively unacceptable. However, if we put that comment in the same category as sexual assault, we risk minimizing the seriousness of the latter by lumping it with the former.
That is part of the danger in zero-tolerance messaging. At first blush, “zero tolerance” sounds good. However, it may be heard as suggesting that, regardless of the severity of the unacceptable conduct, the
wrongdoer will be terminated.

This is dangerous because it may discourage victims who just want the problematic behavior to stop from reporting it because they do not want the wrongdoer to be terminated. Yes, she (or he) will not be a
silence-breaker but instead will suffer in silence to avoid someone else’s suffering more.

Zero-tolerance messaging is dangerous for another reason. A leader who becomes aware of unacceptable conduct by a star performer may not report it for fear that the star will be terminated. The thinking is entirely unacceptable but it is also foreseeable.

So, instead of lumping all behaviors under one label, we need to look at a hierarchy of bad behaviors. Instead of applying corporate capital punishment in every case, we need to take proportionate corrective
action based on how bad the conduct is. At a very minimum, the corrective action must be reasonably calculated to deter further unacceptable conduct.

With this background, here is a hierarchy of behaviors that constitute misconduct or harassment for employers to consider when preparing policies, training programs, investigations, and corrective actions.

1. Lack of Respect/Civility
The law does not require that employers be respectful or civil. Yes, an executive can yell and intimidate its employees, so long as it does not target employees for such hostile conduct based on their gender,
race, religion or other “protected group” status.

While such unacceptable conduct does not violate the law, it violates human decency. Plus, it is bad for business. Employees who are bullied (as well as those who witness it) underperform, if they do not leave
for a better workplace.

Further, disrespectful or uncivil behavior creates fertile soil for harassing behavior that may break the law. One witness who testified before the EEOC Select Task Force on Harassment called incivility the
“gateway drug” to harassment.

For all of these reasons, employers are well advised to respond to disrespectful, uncivil and abusive behavior, even if not unlawful. While employees may call such behavior harassment, employers must be
careful to avoid the label. It may not be.

2. Gray Areas
Telling a colleague that her or his new suit is “sharp” at a social event is not harassing behavior. Conversely, telling that colleague she looks “hot” in that new suit is harassing behavior. Let’s leave what is clear and enter the land of gray.

What if a male colleague tells a female colleague she looks “attractive” in that suit. He may mean “nice,” but his use of “attractive” may be heard as “hot.” The same word may have very different meanings between the parties to the communication.

We all need to be more thoughtful about what we say and do. If a word can have a sexual or suggestive meaning, then find another word.

As employers, we need to keep in mind that not all cases are as black and white as those we have read or heard about during the last few months. In some of the complaints we receive, the conduct falls into gray areas. In such areas, at least for the first instance of such conduct, proportionate corrective action may consist of non-punitive coaching or counseling.

3. Sexually Harassing but Not “Bad Enough” to Be Illegal
Under federal law, for sexual harassment to be actionable, among other factors, it must be severe or pervasive. Some state or local jurisdictions, such as New York City, have established lower hurdles that
must be met for conduct to be actionable.

So, at least under federal law, the following behaviors, in and of themselves, probably do not constitute unlawful conduct:
• a sexist “joke”;
• an inappropriate comment of a sexual or suggestive nature; or
• a leer or a gawk

To prevent harm to employees and to avoid legal liability, employers should respond to sexually harassing behavior, even if the behavior in and of itself is not unlawful. In an employer’s preventive efforts, this message must resonate loud and clear. An employee does not have to violate the law to violate the employer’s policy.

However, in taking corrective action in these circumstances, employers should avoid the legal label. Use “sexually harassing behavior” rather than “sexual harassment.”

But, even here, distinctions must be made within the category of “sexually harassing behavior.” For example:
• If an executive makes a degrading comment about women, it is worse than if a lower-level employee
does the same. Power magnifies the wrong.
• If a lower-level employee makes a degrading comment about women, it is worse if he has done so before and been warned not to do it again.

The label we apply to this category of unacceptable conduct does not alone dictate the nature of appropriate corrective action. What is proportionate also may depend on myriad other factors.

4. Sexual Harassment
Some conduct, in and of itself, constitutes sexual harassment.

The clearest example is when a supervisor or other higher-ranking employee conditions the granting of any term, condition, or benefit of employment on a subordinate’s submission to sexual advances or
punishes the subordinate for not submitting to them. This is often what is referred to as “quid pro quo” harassment, that is, “this for that.”

Another example may be use of the “C” word. Some courts have found that saying the “N” word once may create a racially hostile work environment. A court very well could find that using the “C” word once
may create a sexually hostile work environment.

If conduct is or may be sexual harassment in and of itself, the proportionate corrective action is almost always termination. I say “almost always” rather than “always” because there could be an exception,
such as if the employee’s supervisor used the same hate word and the subordinate said he went “along to get along” with his supervisor. In these circumstances, the supervisor should be terminated. The case of the subordinate may be less clear.

While the severity of the conduct in these cases must inform the level of corrective action, employers still may wish to stay away from the legal label. Employers can do what is right for their employees without
necessarily making what may be argued to be an admission of liability.

5. Sexual Assault
In some high-profile cases, we are dealing with more than the civil wrong of sexual harassment. We are dealing with a criminal wrong: sexual assault.

If, after an appropriate investigation, an employer concludes that there has been a sexual assault, there is only one proportionate remedy: termination.

In this regard, it is important to emphasize that law enforcement may have elected not to pursue the matter does not mean the employer should ignore the matter. While the determination by law enforcement may be one factor an employer may consider, it rarely will be determinative.

Even where an employer concludes there was a sexual assault, such as grabbing a woman’s breasts or genitals, the employer still is better off avoiding legal labels and describing the behaviors.

Conclusion
While there is a continuum of bad behavior, each category does not exist in isolation. We need to recognize that each level of the hierarchy of bad behavior creates a cultural environment where the next level of bad behavior is more likely to occur. Just as lack of civility can be the “gateway” to sexual harassment, sexual harassment can be the gateway to sexual assault. We must have zero tolerance to bad behavior but with a proportionate response to how bad the behavior is so that the bad behavior is not repeated or becomes worse.

This article is not legal advice and does not apply to specific factual situations.