Monthly Archives: December 2019

Faith

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Faith. My blog on the Holiday:

For many years, I have written the ongoing tale, the Jewish Guy Who Wears A Chai, about the potential minefields HR professionals must navigate during the holiday season.  In order to address what can be real risks, I have employed a touch of sarcasm, and by a touch, I mean a ton.

This year, I am going to park my snark and focus on what the holidays are primarily about but which increasingly employers tend to guardrail against: faith.  In many workplaces, we invite employees to be their authentic selves, except where faith is concerned.

We support employee resource groups based on race, gender and sexual orientation, for example.  But a bible study group? Almost never!

We encourage employees to be kind to each other.  But, please, don’t wish a colleague a “blessed” day.

Diversity initiatives have various themes from ethnicity to gender identity.  But religion is rarely one and, if religion is included, it often means, effectively, “other than Christian.”

This holiday season I know of a few employers who are having a “December Dinner” or the equivalent. That way they won’t offend anyone.  How wrong they are.

For many of us, faith is an important part of who we are. And, an employer’s celebration of the holidays is but one small way to recognize this reality.

When employers remove any reference to or symbols of Christmas, they are sending a message of exclusion in their aim for inclusion. For example, don’t remove the Christmas tree; instead, add a Hanukkah menorah and Kwanzaa basket, too.

Of course, not everyone celebrates religious holidays at this time of year or at any time.  We want these employees to be and feel included, too.

We can help maximize inclusion in our holiday celebrations if we find a way to demonstrate a common denominator of all faiths or people of good faith but of no particular faith.  One such way is for the employer to make a contribution to a non-religious charity.

Consider, for example, pediatric cancer, victims of domestic violence or animal welfare.  Can anyone reasonably object?

By picking a non-religious charity, we include all. By focusing on charity, we highlight what is a common denominator of all faiths of which I am aware: caring for others less fortunate.  And, by others, I include our animal friends in shelters waiting to love and be loved.

So, this year, pick a charity and make a donation in honor of your employees. Make sure to involve employees in the selection of the charity.

When we help others, we feel better about ourselves. Doing good feels good.

It also feels good to wish people well. So, indulge, I will.

For those of you who celebrate Christmas, may the peace and happiness of Christmas be yours.

For those of you who celebrate Kwanzaa, may it be a joyous holiday.

For those of you who celebrate Hanukkah, I will be lighting a candle with you to celebrate our resilience. And, yes, I will be wearing my grandmother’s “Chai,” the Hebrew letter than means life.

For those of you who celebrate holidays at other times in the year or don’t celebrate holidays, I wish you well just as well.

I end with the essence of this year’s blog. To quote Sir Winston Churchill: “We make a living by what we get. We make a life by what we give.”

This blog is not legal advice.

Follow me on Twitter at:  @Jonathan__HR__Law

Sex and the CEO

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My thoughts in the Corporate Board Member:

Amorous relationships between bosses and subordinates are fraught with risk. Boards need to deal with the issue head-on to protect employees, the company, shareholders and themselves.

The CEOs of McDonald’s, Intel and Boeing are among the executives who have lost their jobs as a result of having, by all accounts, welcome and consensual sexual relationships with subordinate employees.

To avoid the taboo of discussing sex in the workplace, we typically use the terms “romantic,” “intimate” or “personal” to discuss this office relationships. But while those words may make us feel more comfortable, they also may result in a board not addressing relationships that are fraught with legal and reputational risks. How we frame the question we ask ourselves may dictate our answer:

Option A: Should a board proactively address the issue of executives having personal and intimate relationships with individuals employed by the same company?

Option B: Should a board proactively address the issue of executives having sex with individuals over whom they have institutional power?

We really need to ask the second question to really understand the risks of an executive, particularly a CEO, having what, by all accounts, appears to be a consensual, sexual relationship with someone over whom he or she has direct or indirect authority—that is, anyone in the organization. Here are but some of the risks:

• The employee could claim later that, while she or he was a willing participant, they felt pressure to become involved, that is, the relationship was not truly welcome. An executive does not leave his or her power at the entrance to the bedroom door.

• Even if the employee acknowledges that the relationship was welcome when it started, what happens if and when it ends? Any adverse action against the employee is subject to a potential retaliation claim, i.e., I was denied a promotion because I ended my relationship with the CEO.

• Assuming the relationship flourishes without problems, will the employee’s supervisor feel truly comfortable addressing concerns with his or her performance knowing this may make the CEO less than happy?

• If the CEO sleeps with a subordinate, does not he or she invite managers to say #MeToo and have their subordinates respond with #MeToo claims?

Indeed, just the process of leading up to the sexual relationship is risky. For example:

• What if the CEO pursues a relationship and the subordinate signals a lack of interest but the supervisor pursues it? An employee is more likely to say, “Thank you, but I have other plans,” than “You repulse me sexually.” The CEO may not get the less direct message, and the continued pursuit invites a hostile work environment claim.

• What if the employee is direct and says, “I want to keep the relationship strictly professional” and the CEO does not pursue? Is not any adverse action against the employee subject to a potential retaliation claim? The answer is “yes.” Of course, the employer may prevail—but only after an embarrassing, salacious trial.

Boards need to deal with the issue head on to protect employees from what may be unwelcome pressure, to protect the organization from potential litigation and to protect themselves. For public companies, directors may face derivative claims by shareholders when such foreseeable risks materialize. Even in private companies, there may be a claim of breach of fiduciary duty.

While boards need to focus on the risky combination of sex and power, this does not mean that the policy itself needs to be this explicit. Indeed, some of the best policies I have seen in this area focus on intimate and/or personal relationships.

Further, there are many different policy options. Some employers prohibit intimate relationships where there is a power imbalance. In other companies, there is no prohibition but there is a reporting requirement. And, in still other companies, there are prohibitions for some types of senior leaders and reporting requirements for others.

No one size fits all organizations; there are benefits and risks to each approach. What is critical is that boards focus on the issue and make a reasoned decision on what will be an effective way to address the legal, reputational and other risks associated with high-risk relationships.

While this starts with a policy, it does not end there. It is strongly recommended that policy be coupled with training. When executives understand the personal risks to them of these high-risk relationships, they may be less likely to engage in them. At a minimum, you will hopefully learn of such a relationship from the executive—and not an online headline.