Category Archives: General

Finale of Holiday Tale by Jewish Guy Who Wears a Chai

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I am pleased to share my latest post to The SHRM Blog regarding the holiday season and its impact on employment law.

You are an exhausted HR professional charged with making the holidays lively without inviting lawsuits. On the day of your company’s holiday party, you walk into the lobby of your building and see the elegant Christmas pine that you had helped decorate. As you behold it in its twinkling glory, a co-worker says, “That tree is inappropriate in the workplace.”

The co-worker is wrong. It is beautiful; Christmas can and should be acknowledged—so says the Jewish guy who wears his grandmother’s chai. By the way, Chai is a Hebrew letter that means “life,” and I proudly wear my grandmother’s pendant (and my grandfather’s ring).

There’s no reason to remove symbols of Christmas from holiday decorations. But recognize other holidays, too. A Hanukkah menorah and a Kwanzaa harvest basket would be nice additions.

By the way, size does matter. Imagine the message of five life-sized reindeer next to a Kwanza basket the size of a soup bowl.
Your encounter in the lobby, however, is just the beginning of a day of seasonal challenges.

In the elevator, you hear employees complaining about the holiday party. “I don’t want to go, but I feel like I have to,” one says. You take out a lawfully-prescribed pill. You filled the prescription after the last holiday party.

Of course, you would love to say, “Please, if you don’t want to go, by all means, don’t. Your present to me would be the absence of your presence.” It’s OK to think it, but please don’t say it (unless you are retiring at the end of the year). If you are planning on retiring: go for it (and tell me about it!).

In fact, unless the holiday party is scheduled during working hours, be careful not to require, or even strongly encourage, employees to attend—or else you may ring in the New Year with a wage and hour claim. Yes, Virginia, there is a chance an employee may claim the party is work.

Another person in the elevator is upset that the gathering is not called a Christmas party, while still another says that, as an atheist, she objects that there is any party at all. Oy vey, you think. Okay, perhaps I am projecting my thoughts and words on to you. But you get the idea.

Usually, it’s best to call your shindig a holiday party or seasonal celebration to maximize inclusion, but it is more than OK to mention the various holidays celebrated, including Christmas. In fact, please do. Inclusion does not mean eliminating anything that is not universally shared. It is the opposite!

As the elevator door opens to your floor, you see a large menorah with lit candles. Your receptionist thought it would add meaning to the season.

First, address the fire hazard by blowing out the candles (but don’t make a wish). Second, make it clear that employees cannot put up whatever decorations they want, wherever they want.

Reasonable guardrails can be established. There is a big difference between an employee’s office or work station and a public area, for example.

Two people are waiting for you in your office. One is dismayed that a co-worker gave him a thong as a holiday gift. The other is unhappy that there are no decorations recognizing the Buddhist holiday of Bodhi Day.

To prevent the first headache, let workers know that gifts must be appropriate. Tell them that excludes anything sexual, or otherwise inconsistent, with your equal employment opportunity (EEO) policy.

Consider also how you will deal with gifts of alcohol. What if you prohibit its possession on your premises?

Now, here comes my keen legal prowess: Send an e-mail to employees that reads, “If you receive alcohol as a gift, do not open or consume it at work, and please take it home the day you get it.”

As for decorations, invite people to make suggestions before you put them up. You can maximize spiritual inclusion if you involve employees in the process.

Okay, it’s “party time.” You run so quickly to the bar that you don’t even realize that you have knocked over two colleagues in your zest to get there.

Be careful. Control the amount of alcohol you choose to provide, as well as how much you yourself imbibe.

We know from the EEOC that alcohol is a risk factor relative to harassment. We also know that it poses serious safety risks relative to driving.

Ensure that you serve plenty of nonalcoholic beverages and food, too. Egg rolls are a must (inside joke).

Provide vouchers for cab rides home. Flag aggressively, etc.

Another way to minimize legal risk and help those in need: Consider charging for drinks and donating all of the money to a charity (and matching the amount collected). You want the charity to appeal to all or nearly all.

Here’s my chance to raise my personal passion: give to your local animal welfare rescue. And, consider adopting a four-legged friend, in particular, an older cat or dog (unless you have too much unconditional love in your life).

Following a chat with your CEO at the party, you notice two employees dancing suggestively. There is also a love train of employees, in which everyone puts their hands in the pockets of the person in front of them. Well, they intend the pockets but I am not sure that is where there hands end up. I won’t go any further, at least not here.

Because of situations like these, every year around this time there is a bonanza for plaintiffs’ lawyers: “Were you groped at your holiday party? Witness employees grinding on the dance floor? Call 1-800-IRETIRE.”

To minimize the likelihood that workers will have cause to contact one of these lawyers, remind employees that your EEO policy applies to social events and respond quickly and firmly to inappropriate behavior. Reminder, if you are in HR, there is no such thing as being a passive bystander if you see or hear inappropriate conduct or comments. To ignore is to condone.

And pay attention to the music, too. If music will be played, focus on what it will be.

At the risk of showing my age, Rod Stewart’s “Do Ya Think I’m Sexy?” would not be my first choice. There is no good answer to Rod’s question!

Snoop Dogg’s “Sensual Seduction” isn’t much better. The problem with this title? Both words.

But somewhere between Snoop Dogg and Barry Manilow is an appropriate middle ground. May I suggest Adele?

And don’t worry about playing Springsteen’s “Santa Claus Is Coming to Town.” But that’s about as religious as you probably should get.
You hear discussions about an unofficial after-party. You know it is safer to swim in a lava pit than to attend an after-party. So you run to your office.

You read through the holiday cards on your desk. Many are blank because no one knows what to say. If you say “Happy Holidays,” are you declaring war on Christmas? If you say “Merry Christmas,” are you disrespecting your Muslim colleagues?

A generic “Season’s Greetings” works best. But if you know the faith of the recipient, it is more than OK to customize. I always wish my Christian friends “Merry Christmas.” And I like it when people wish me “Happy Hanukkah” if they know I am Jewish. I am less happy if they do so because they think I look Jewish.

Yes, there are risks everywhere you turn. But these risks can be managed with thoughtful planning.

So, HR, let’s do what we do best: think and then balance. And now, I shall try to do the same.

If you celebrate Christmas, Hanukkah or Kwanzaa, I wish you a peaceful and meaningful holiday that corresponds with your faith. If you observe another holiday now, I apologize for not referencing it by name, but I give you my good wishes just the same, as I do for those who recognize no holidays or who celebrate at another time of year.

May peace be with all!

And, please, be good to each other.

17 Tips for Anti-Harassment Training

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I am pleased to share my latest SHRM post reflecting on the EEOC’s report regarding harassment in the workplace.

The recent release of the Equal Employment Opportunity Commission (EEOC) report on sexual harassment shouldn’t be cause for a collective yawn. Rather, the report contains the seeds for great ideas to fight harassment of all stripes, including that based on race, gender, national origin and religion.

EEOC Chair Jenny Yang first announced the creation of a Select Task Force on the Study of Harassment in the Workplace early last year, and her message then was simple: We have made a lot of progress, but the problem persists.

Fast-forward to June, which was the 30th anniversary of the Supreme Court’s recognition that sexual harassment is a form of sex discrimination. After more than a year of study, including numerous public hearings, EEOC commissioners Chai Feldblum and Victoria Lipnic issued their report.

One key aspect of the study is the importance of training supervisors and management. Let’s focus on the following 17 tips for upgrading your training that are based not only on specific recommendations from EEOC commissioners but also on my own advice. (Note: While I served on the task force, I speak for neither the EEOC nor the task force.)

1. Ensure that the training is interactive and facilitated by a qualified trainer. If your employees are passive participants, the training will not achieve its full potential. Ideally, the training should be live. If that is not feasible for cost reasons or because employees are geographically dispersed, you can consider an online alternative, but it should have an interactive component.

2. Confirm that support comes from the highest levels.Without the endorsement of senior leaders, the training likely will be seen as a mere “check-the-box” exercise. Executives should attend the event and ideally provide opening or closing comments. Leaders must make it clear that everyone will be held accountable for complying with the requirements covered in the training.

3. Clarify that the training should be taken seriously. The purpose of this exercise is not simply to sensitize supervisors; it is to help them keep their jobs. Make it clear that the employer, like the courts, holds supervisors to a higher standard than other employees.

4. Emphasize the business risks of engaging in or tolerating harassing behaviors. Such risks include lost productivity, lower employee retention and the employer’s tarnished reputation. Simply put, harassment is bad for business.

5. Provide specific examples of unacceptable behaviors as opposed to making general statements. Examples must be customized so that they resonate in your workplace. Canned training is a waste of everyone’s time.

6. Focus on risk factors that increase the likelihood that harassment will be tolerated. These include a homogenous workforce and workers who are dependent on customers’ tips and may be afraid to speak up. Supervisor training must focus on how these risk factors may increase the potential for harassment so that managers can address problems before they occur.

7. Emphasize what is unacceptable vs. what is illegal.Employers don’t want to suggest that behavior is unlawful when it might not be. For example, in most cases, one comment is not actionable. You also don’t want to imply that unacceptable behavior is OK simply because it is not significant or pervasive enough to violate the law.

8. Describe both severe and subtle examples of harassment. If employers don’t include the less obvious examples, supervisors may define harassing behavior too narrowly. On the other hand, if blatant behaviors are excluded, managers may fail to address what they cannot imagine anyone doing even when it does indeed take place.

9. Address unlawful harassment in all its forms.Harassment can be based on a person’s race, ethnicity or religion. And don’t forget that gender-based harassment, even if it is not sexual in nature, is also against the law.

10. Provide supervisors with guidance on how to respond in the moment. If supervisors aren’t taught what to say from the very moment an employee reports harassment to them, they may say something unwise such as, “That doesn’t sound like Mark.” Make it simple: Supervisors should say, “Thank you for bringing your concerns to my attention. We take them very seriously.”

11. Emphasize that supervisors cannot promise absolute confidentiality. Managers should report all complaints to HR as a matter of course. However, if they aren’t informed of this step in advance, and they agree to an employee’s request to keep a complaint confidential, then they cannot tell anyone, despite the legal and business risks that go with having notice and doing nothing.

12. Train supervisors to respond proactively to unacceptable conduct. Managers who see, hear or otherwise become aware of harassing behavior should follow up, even in the absence of a complaint. To be silent is to condone. This is why the EEOC recommends that so-called bystander training be incorporated into supervisory education efforts. This type of training is based on the premise that witnesses or others who become aware of harassing behavior (bystanders) play a key role in stamping out harassment.

13. Emphasize nonretaliation. Fear of retaliation is the primary reason employees do not raise concerns when they should. Employers must define retaliation as broadly as the law in terms of who is protected (not just complainants) and what is prohibited (not just discipline and discharge). Examples of other prohibited retaliatory actions include changing the amount of work given to employees, shifting the nature of assigned tasks and excluding workers from key meetings. Emphasize that retaliation of any kind against a person who reports or witnesses harassment will be met with immediate and proportionate corrective action.

14. Provide civility training. Even though rude or uncivil behavior is not unlawful unless it relates to a protected group, incivility is the gateway to harassing behavior. Therefore, the EEOC recommends that employers conduct civility training. True, civility training can create problems with the National Labor Relations Board. But for supervisors who are not covered under the National Labor Relations Act (NLRA), such training can be infused not only into anti-harassment training but also performance management training without risk of violating the NLRA, if structured properly.

15. Use humor carefully. Appropriate humor can sometimes ease tension so that participants are more open to the training, but it is very important not to minimize the seriousness of the issue. In my experience, humor is best used to poke fun at those who defend inappropriate behavior: “He really thought that if he called her at home off the clock to share his lustful feelings for her, it was not harassment. Perhaps he should be fired for both harassment and stupidity.”

16. Evaluate and re-evaluate. Elicit specific feedback about what resonated with employees and what they want to know more about. Discuss which behaviors do not qualify as harassment, such as a nondiscriminatory but tough management style.

17. Convey that the solution is not to avoid those who are different from us. Trying to avoid harassment claims by avoiding certain groups of employees altogether may constitute unlawful discrimination. Provide specific examples on how supervisors can engage in mentoring and promote social inclusion within a diverse workforce.

Sheryl Sandberg, Lean In 2.0 and Corporate Gender Bias

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I am pleased to share my latest article from Entrepreneur.

It is now more than three years since Sheryl Sandberg, COO of Facebook, wrote her ground-breaking book, Lean In: Women, Work and the Will to Lead. “Lean In,” I believe, is shorthand for “Go for it, if you want it.”

In her book, Sandberg acknowledges that there are many systemic obstacles to the advancement of women in corporate America. However, her focus is what women can do to maximize their chance of success in spite of these obstacles.

Well, more and more women are leaning in. That includes applying for leadership positions and/or negotiating for more equitable compensation.

There is some good news.

Women who lean in do better than women who don’t. However, women who lean in are also facing substantial resistance.

Late last month, Sheryl Sandberg wrote an article for the Wall Street Journal entitled: “Women Are Leaning In — But They Face Push Back.” In what could be called “Lean In 2.0,” Sandberg focuses primarily on the systemic obstacles and not on what women can do to overcome or navigate around them.

Sandberg’s article came out on the same day as a study conducted jointly by LeanIn.Org and McKinsey & Co. Among the findings: we are still more than 100 years away from there being gender equality in C-suite positions. Further, men are 30 percent more likely than women to be promoted into a management position.

This is bad news for women (and men). It is beyond dispute that businesses do not reach their full potential if there is not gender diversity among those holding leadership positions.

The ‘too aggressive’ penalty.

One of the reasons for the absence of acceptable progress in terms of gender equality is what Sandberg calls the “too aggressive penalty.” Citing the McKinsey/Lean In study, Sandberg states in the WSJ article, “women who negotiate are 67 percent more likely than women who don’t to receive feedback that their personal style is ‘intimidating,’ ‘too aggressive,’ or ‘bossy,’ and they are more likely to receive that kind of feedback than men who negotiate.”

Don’t negotiate and don’t advance. Negotiate and wear the Scarlett B coded in other terms. This is the classic double standard, and it is indefensible.

So what do we do to shatter the double standard that provides a coat of cement for the glass ceiling? Six suggestions (for starters):

1. Acknowledge the problem.

We cannot solve the problem unless those who have power to correct it acknowledge that it exists. And, too many still deny the problem. I have never experienced labor pains. But I would be a fool to deny their existence.

So share data with your leaders, for example, the McKinsey/Lean In Study. Consider sharing other academic studies framed in business terms that identify the scope of the problem. The Harvard Business Review and Catalyst.org are great resources, to name but two.

2. Don’t attack or admit bias.

Don’t attack your leaders. That will do nothing more than make them shut down, if not worse. Plus, it may be used later as an admission of organizational bias. Instead, try something like, “we know this problem exists in the business world, and we would be a bit naïve, if not arrogant, to assume we are immune from the problem.”

3. Focus training on unconscious bias.

As Sandberg and others acknowledge, some of the bias is undeniably unconscious. Focusing on the unconscious in training gives leaders a “safe” way to change. “I was not aware.” Well, now you are. Message to leaders: with conscious awareness, unconscious bias can and must be avoided.

4. Eradicating gender bias cannot be over-emphasized.

When emphasizing the need for change, talk about the business imperative: bias is bad business. Do not call the training sensitivity training. Most leaders view that as soft fluff. This is business training to maximize profitability. The message would be the same if there were no men in leadership; make that clear!

5. Show leaders how to address unconscious bias.

Leaders may not realize that their feelings are due to unconscious bias but they should be consciously aware of their emotional reactions (or they shouldn’t be leaders). When they find themselves feeling someone is too aggressive, pushy, bossy or strident (I could go on), encourage them (in their heads) to move from labels to specifics behaviors and then ask themselves the million-dollar question: do I laud this precise behavior when engaged in by a white man?

6. Hold leaders accountable.

Training leaders is just a start. We need to hold them accountable. If there is conscious bias or unconscious bias (usually evidenced by a pattern), leaders must pay a price. However, this should be done in a way where you correct the wrong but don’t create an admission of bias. This is easy to say but deceptively complex to implement. But it can be done with reasonable legal risk and substantial business upside if thoughtfully implemented.

Let me end by quoting Sandberg from Lean In: “‘She is very ambitious’ is not a compliment in our culture.” It’s on all of us to change that for our collective benefit.

 

Sheryl Sandberg and the Need for More Male Allies

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

Last month, a study on gender and leadership conducted jointly by LeanIn.Org and McKinsey & Co. was published. Accordingly to the study, women account for only 19 percent of the C-suite executives (based on responses from 132 companies).

The numbers are even more distressing if one focuses narrowly on Fortune 500 companies. The percentage of female CEOs dropped in 2016 to only four percent. Yes, four percent.

Needless to say, women are grossly underrepresented at the top. And, that hurts women more directly but men too, because companies indisputably do better when there is gender (and other) diversity at the top.

On the same day as the study was released, the Wall Street Journal published an article written by Facebook COO Sheryl Sandberg “Women Are Leaning In—but They Face Pushback.” As almost everyone knows, Sandberg wrote (3 years ago) the ground-breaking book, Lean In: Women, Work and the Will to Lead.

When Sandberg wrote Lean In, she acknowledged the obstacles women who want to lead face. She chose to focus more heavily on how women can navigate these obstacles.

In her Wall Street Journal article, Sandberg focuses on the wall women hit when they lean in (a meme for “go for it if you want it.”) Citing the McKinsey/LeanIn study, Sandberg states: “women who negotiate are 67 percent more likely than women who don’t [negotiate] to receive feedback that their personal style is “intimidating,” “too aggressive,” or “bossy,” and they are more likely to receive that kind of feedback than men who negotiate.”

This is consistent with what Sandberg wrote in Lean In:

  • “She is very ambitious is not a compliment in our culture.”
  • “Men are continually applauded for being ambitious and powerful and successful, but women who display these same traits often pay a social penalty.”
  • “When a man is successful, he is liked by both men and women. When a woman is successful, people of both genders like her less.”
  • “But since women are expected to be concerned with others, when they advocate for themselves or point to their own value, both men and women react unfavorably.”

Sandberg’s article is a clarion call for companies to do more. In this blog, I want to narrow the focus: men must do more.

Too often the burden of eradicating gender bias is left to women. This is wrong in so many ways.

Women and men alike are hurt by gender bias. Why should women alone tackle the problem?

Mentoring and sponsoring is essential, yet in many organizations the responsibility as it relates to women is placed almost solely on women. This investment in others diverts women in or near leadership from their own goals. Why should women bear this responsibility alone?

Men have a perspective that is needed to tackle the problem. Gender diversity is a “plus” and that includes in tackling gender bias.

We need more male allies. Of course, that means at looking at systemic issues.

But there is a lot men with influence can do “in the moment” on a day to day basis. Here are just a few examples:

  • Continue to call out successes by men who work for and/or with you. But make sure you do the same for women and with the same enthusiasm. If you are aware that unconsciously this may not be your proclivity, you can consciously overcome the bias.
  • If you begin to think that a woman is too assertive, pushy, bossy (get the picture?), focus on what she is doing and then ask yourself: how would I react if Jim rather than Jane were engaging in this behavior? Again, with conscious awareness of the potential unconscious double standard, you can overcome it.
  • Use your voice to speak loud and often about the business benefits of gender diversity. Yes, it is a moral issue, but money talks so talk money.
  • Speak up when you hear assertive women called “bitch” or worse. To ignore is to condone. There is no such thing as a passive bystander if you are a leader.
  • Engage in cross-gender sponsorship and mentorship. Where men hold disproportionate power, this is necessary for women with potential to have access to power. Plus, you will learn as much as you impart.

Don’t wait for a formal program. Time is of the essence.

Sheryl Sandberg has asked women: what would you do if you were not afraid?

I ask men: how much will you do if you are secure?

6 Ways to Lawfully Embrace Social Recruiting

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I am pleased to share my latest post to Entrepreneur.

I hear too many lawyers strongly discourage employers from ever looking at an applicant’s social media accounts. Yes, there are legal risks, but those risks can be mitigated.

As important, there can be legal and business risks in not looking at social media during the hiring process. So we’re actually talking about risk management, not risk avoidance.

What are the legal risks if you look at an applicant’s social media profiles, such as on Facebook, Instagram or LinkedIn? By the applicant’s pictures or words, you may learn things about the applicant’s membership in a protect group, such as his or her likely race, religion, disability, age, etc.

Even if you don’t consider doing it, an applicant may unlawfully argue that you did. It’s not easy to prove the negative.

On the other hand, you may find valuable information that lawfully may be considered. In one case, an employer found racist posts by a managerial applicant.

I was glad the company learned of this, or they would have hired the miscreant. Think of the legal and business risks that could have occurred if they had hired him.

Most people are perfect, at most, twice in their life: at birth and in an interview. Reviewing social media accounts can help you determine who the person truly is who you’re considering hiring. Here are six recommendations to minimize the legal risks, and maximize the business rewards of reviewing social media profiles as part of the hiring process.

1. Do not look at social media profiles to screen applicants.
Using social media to screen applicants is using it too early in the process. Generally, it’s unnecessary and risky. It’s unnecessary because you should be focusing on the position’s objective criteria at this point. And it’s risky because an unqualified applicant may claim that she was rejected because you saw she was an older Asian woman, for example.

2. Consider looking at social media at the end of the hiring process.
Review social media only at the end or near the end of the hiring process. Some employers include this step as part of their background check.

The risk is much lower because, after interviewing the applicant, you will already know that the applicant is, as in the prior example, an older Asian woman. Additionally, fewer applicants will have their social media profiles reviewed so it has fewer risks.

But there still is some risk. An individual may post information you otherwise would not learn about in the interview, such as he that he’s gay or on medication for depression.

The risk must be balanced against the value of what you may learn. Another case could be an applicant posting pictures of themselves wearing virtually nothing.

3. Human resources should review social media.
Someone on your HR team – not the hiring manager — should review candidates’ social media account. HR professionals are better equipped to focus on what can and cannot be considered.

You should tell hiring managers that they can’t check social media accounts. If you don’t tell them they can’t, they will assume they can and may do so at the wrong time, or consider factors they shouldn’t.

4. Only review public information.
Never ask an applicant for his or her social media password. It is like asking an applicant for the keys to his or her home.

Approximately 20 state laws prohibit employers from asking for social media passwords. In all states, it can be criminal under federal law.

5. Keep your process consistent.
You don’t need to look at social media profiles for every position in the company. But it’s also dangerous to do so only when you feel like something may be off.

Selective social media reviews can be seen as based on discriminatory factors. Indeed, the gut feeling may be based on implicit bias if the person is different from you – whoever you may be.

So decide before you begin recruiting for a position whether a social media screening will be part of the process and document it. Just don’t do it because of who the person is.

6. Print out any social media posts that you intend to consider.
We all know that individuals may delete or hide posts from the public; therefore, print out anything you find as soon as you see it. Note what disturbs you about it. This preserves the argument, by negative implication what you did not consider, namely, an applicant’s membership in a protected group.

Servant Mentorship

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

Almost everyone recognizes how important mentoring is. I don’t know anyone who is successful who did not have at least one good mentor. I know I am grateful for mine.

Similarly, I don’t know any good leaders who don’t mentor to some degree. It is more than a mark of a good leader; the mentoring makes the leader stronger by what he or she learns from the mentee.

Of course, people define mentoring differently. It should be more than showing someone the ropes or sharing inside baseball.

A good mentor should have a vested interest in helping his or her mentee succeed. Yes, I recognize that this definition begins to bleed into sponsorship as many define it.

However, I believe the line between mentorship and sponsorship can be somewhat artificial. In my views, the best mentorships include a sponsorship component. The term I use is “servant mentorship.”

One way that mentors can sponsor mentees is by opening doors for them. “I can’t do this but I think this would be a great opportunity for you.”

In these cases, the mentor feels good about the opportunity that he or she has provided. While this may benefit the mentee too, the mentor is benefiting by having someone safe do what he or she cannot.

Don’t get me wrong. That’s not a bad thing. But it’s not as wonderful as it may make the mentor feel.

For me, the best test as to whether someone is a servant mentor is whether they lean back so their mentee can lean in. That means giving up an opportunity for the mentee so that he or she can grow.

“I can do this, but I think you would be great. If you want it, it’s yours.”

Mentees know the difference. And, I believe, they respond in kind.

Opening a door for someone when you cannot walk in is not “servant mentorship.” Not walking in the door when you can but sending your mentee instead is.

Next month I will be giving my monthly slot to a mentee. Thank you to SHRM for joining me in service mentorship.

The Judge Shapiro I Knew

General, In The News

As I mourn the loss of Judge Shapiro, I remain unsettled by the Inquirer’s obituary. http://www.philly.com/inquirer/obituaries/20160723_U_S__District_Senior_Judge_Norma_Shapiro__87.html. Because the obituary did not do justice to the Judge who fought so hard for justice, I wrote my own blog about her.

The Inquirer article focused heavily on the ‘famous’ prison overcrowding case. The complexities of the case go beyond a short blog. However, one critical point does need to be made.

Judge Shapiro never set a cap on the number of prisoners as the article suggests. Rather, she simply enforced a settlement agreement that had been reached between the City and the plaintiff class.

While active, the case was highly politicized. Inconvenient facts were ignored by those who  focused on the political and not the legal.

Sadly, that happened even on the day of the Judge’s death, when former District Attorney Lynne Abraham said disparaging and untrue comments about the Judge and the case. To be blunt: Ms. Abraham’s comments said nothing about the Judge and everything about her.

I am not a mere bystander. I knew Judge Shapiro well because I had the honor to clerk for her in 1985-1986.

The Judge had a brilliant mind and steely work ethic. As important, her dedication to the rule of law was unwavering, even when mercilessly and unjustly attacked.

A trailblazer, Judge Shapiro had to confront gender bias and much of it was not subtle. But she never complained about it and talked about it only in terms of finding solutions.

The Judge did not let gender bias stop her or define her. She simply crushed it.

As most know, the Judge was the first woman to be appointed as a judge in the Third Circuit. She was a first second to none.

So many women understandably speak of the Judge as a role model. I want to say, as a man, she was a role model for me, too. How lucky I was, as a man, for my first mentor to be such a remarkable woman.

Her brilliance and strength were matched only by her kindness and warmth. To her clerks, she remained a lifelong source of wisdom, encouragement and friendship. We were part of her “judicial family.”

But nothing was more important to the Judge than her real family. She was a beloved grandmother, mother, mother-in-law, sister, wife and daughter.

At the Shiva for the Judge, I had the opportunity to hear her family, particularly her grandchildren, talk about the Judge with such love. She played an integral part in each of their lives. She adored them and they her.

Yes, she was an extraordinary judge. But she also was an extraordinary person devoted to her family and friends.

She asked for very little. She gave so generously of herself.

In Hebrew, there is an expression, Eshet Chayil. It mean a “woman of valor.” The Judge was a woman of valor in every aspect of her life.

May her memory be a blessing to those whose lives she touched. It will be for me.

For those who are interested in learning more about the Judge’s extraordinary accomplishment and her perspective on judging and life, I call your attention to an incredible interview with the Judge by one of Philadelphia’s most accomplished and respected attorneys, Roberta Liebenberg: http://www.americanbar.org/content/dam/aba/directories/women_trailblazers/shapiro_interview_1.authcheckdam.pdf

Carlson v. Ailes: #Harassment and #HR

General, In The News, , ,

I am pleased to share my latest post to the SHRM blog regarding the sexual harassment lawsuit filed by former Fox Channel Host Gretchen Carlson.

By now, I assume you all have read or at least heard about the sexual harassment lawsuit filed by former Fox Channel Host Gretchen Carlson against Fox CEO Roger Ailes. Since then, at least a half dozen other women have said that they, too, were harassed by Ailes.

When you heard about the allegations, which of the following responses comes closest to your immediate (visceral) reaction:

  1. This is but another example of a powerful man abusing his position to engage in vile sexual harassment.  We have another serial harasser.
  2. Carlson never complained about harassment until her contract was not renewed.  This is but another example of someone complaining about harassment after they don’t get what they want.
  3. I have no idea.  I need to investigate the facts.

If you look at social media or listen to conversations about the case, you will hear a lot of people who “know” it happened or are “certain” it did not. I have not seen or heard too many say, “I have no idea; it needs to be investigated.”

Now, I return to you. If you are like most people, your visceral response was probably 1 or 2. What does that mean?

We hear a lot of talk about implicit bias. Effectively, we are talking about bias of which we may not be aware.

Here, we are talking about a different kind of bias. That is, our initial responses may reflect explicit bias based on our own experiences as employees or as professionals who investigate harassment complaints.

I acknowledge that my emotional response initially was not “3.” Initially, I was suspicious of the allegations based on timing—that would put me in camp #2.

Then, when I heard that there were at least a half dozen other women claiming harassment, my visceral response changed. Carlson spoke out only when she had nothing left to lose and others then spoke out, too. So, that put me in camp #1.

I am grateful that I am aware of my emotional reactions based on my experiences in evaluating harassment cases. If I am aware of my assumptions based on experience (bias), I can consciously avoid them and investigate the facts impartially without such assumptions. That puts me where I belong: camp #3.

Now, I turn to you and ask that you think about your reaction. It very well may reflect your own personal experience in the workplace, as an employee or as an HR professional in receiving and then investigating harassment claims.

It is quite human to learn from and develop assumptions (biases) based on experience. In fact, if our experiences do not inform our instincts, then we have a developmental problem.

But, we need to be careful not to jump to conclusions based on our experiences generally without carefully evaluating the facts of a specific case. Remember, each case is not about the broader societal issue but rather what happened in that particular case.

Think of your visceral reaction (instinct) to this case. That may reflect your bias. Now that you know it, be careful of it when you investigate complaints in your workplace.

Remember, every complainant is someone’s child, parent, partner, sibling or friend.

The same is true of every accused.

Both deserve a prompt, impartial and thorough investigation before conclusions are reached.

This blog should not be construed as legal advice (or a political opinion).

I Wish

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

I had the opportunity to talk randomly with a number of #SHRM16 attendees and ask them one question.

The question is based on Steve Wonder’s “I Wish.”

I asked people what they wished were different about their day to day HR jobs. Here are the top 5 top answers I heard.

1. I Wish I Had More Time with the People (Outside of Emergencies)

Spending positive time with employees is more than just an aspiration. It is essential to effective human resource management.

Employees need to know that they matter. And, they won’t if you don’t acknowledge that they exist.

Make sure your employees know that they are valued and appreciated. There is no better way you can do so than to spend time with them.

2. I Wish I Spent More Time with Strong Workers

No question: we all spend more time dealing with struggling employees than we do with those who meet or exceed expectations. Sometimes, it feels like we spend 85% of our time on the 15 percent who don’t meet expectations.

We can’t reverse the percentages, but we can move the dial.  As with everything that is important, reserve time to interact with your solid players and stars.

Don’t just thank them.  Ask them how you can make their work lives easier.

They are often the least likely to complain. They sometimes have the best ideas.

3. I Wish I Spent Less Time On Compliance.

We are talking about human resources, not legal resources.  So your job should not be only about legal compliance.

Even so, legal compliance is a key part of each of your jobs.  The question is how to integrate the legal with other aspect of your jobs.

Think, and show, how legal compliance is in the best interests of the Company’s business. For example, employees who are or feel harassed are diverted from giving their all toward your organization’s mission.  That does not even address the cost of litigation.

And, try to think of compliance as values. While sometimes the regulations are burdensome, employment laws focus on important issues. Thinking of the values underlying the laws makes dealing with the more onerous regulations a little easier.

4. I Wish I Were Not In the Middle So Often

Let’s face it. We often are in the middle. And, sometimes, we get hit from all sides. Remember this.

Employees complain that they are working too hard and have no lives. Some managers complain employees are not working hard enough and spend too much time on their lives.

Remember, you are not a neutral. You are part of management. But you still can help bridge the gap.

For the benefit of the business, let managers know that there is only so much employees can give. By asking for a  a little less, you may actually get a little more.

And, let employees know that more is expected of all of us. Accepting it is more productive than fighting it.

Of course, no one will be fully happy, but you already knew that. But at least you can help the bridge the gap in expectations so it is not insurmountable

5. I Wish I Could Have More Fun

Let’s face it: the SHRM conference is fun.  We all love seeing our friends and colleagues with whom we may connect primarily on social media.

Well, without the help of SHRM, you probably cannot have a party with 15,000 people. But you can have more fun with your colleagues. And I encourage it.

But here comes the lawyer. Be careful when you blow off steam that you don’t say something that could bite you in litigation. Share about frustrations (where they exist). But don’t talk about specific employees or pending, threatened or actual claims. There is no “HR” privilege from discovery.

Let me end this blog by playing a song that I hope will bring a smile to your face.  Just substitute “HR” for “girls”.

EEOC Commissioners Feldblum’s and Lipnic’s Clarion Call to Prevent and Stop Harassment

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I am pleased to share my latest post to the SHRM blog regarding the EEOC’s report on the prevention of workplace harassment.

Today marks the 30th Anniversary of the Supreme Court’s holding that sexual harassment is a form of sex discrimination. It seems obvious to all of us today, but it was not at the time the EEOC took the position. It was not until SCOTUS said the EEOC was right that the EEOC’s enforcement position became the law of the land.

Today, SHRM had the honor of having EEOC Commissioners Chai Feldblum and Victoria Lipnic present, to an overflowing crowd, “Agency Update: EEOC’s Task Force on Harassment in the Workplace.”  After receiving a warm introduction from Lisa Horn, SHRM’s Director of Congressional Affairs, who acknowledged the strong relationship between SHRM and the two EEOC Commissioners, the two EEOC Commissioners talked about the reason for the Select Task Force, the study it conducted and the report it is releasing today (Check out www.eeoc.gov).

The Task Force was announced in January of 2015 by the EEOC’s Chair, Jenny R. Yang. Her message: We have made a lot of progress, but the problem is persistent. She named Commissioners Feldblum and Lipnic as Co-Chairs of the Task Force.

Commissioners Feldblum and Lipnic made clear the purpose of the Select Task Force was to prevent harassment before it becomes actionable. This includes not only sexual harassment claims but also harassment claims based on other protected groups, such as race, color, age and religion.

Last year alone, the EEOC collected $164.5 million for workers in cases alleging harassment. That does not include recoveries by plaintiffs’ lawyers.

For employers, however, harassment is not only an economic risk, but also a business risk. First, there is the reputational cost. There also is decreased productivity and higher turnover.

The Commissioners emphasized that having policies and procedures is not enough.  According to the Commissioners, the importance of leadership is key.

Leaders must make clear that harassment will not be tolerated.  But a commitment (even from the C-Suite) is not enough.   Like all other employees, leaders must be held accountable for what they do—and what they don’t do.

There must be a “proportionate” response to harassing behavior.  To use an expression familiar to all of us in the HR community, “one size does not fit all.”

But, it is more than holding all employees accountable for unacceptable conduct, even “superstars” who bring in the money.  The Commissioners emphasized we must hold accountable those whose job it is to prevent and correct harassment.

Although these were not the precise words used, the message for supervisors and above was clear: to see or hear harassing behavior and do nothing is to condone it.

Throughout the discussion, the Commissioners made clear that, when talking about harassment, they were talking about inappropriate behavior with regard to a protected group (such as sex, race or ethnicity), even if it does not rise to the level of severity or pervasiveness to be actionable.  The goal: to stop it before it becomes actionable.

That led to a critical discussion about training. The Commissioners made clear that, while training is necessary, it alone is not enough.  Rather, it must be part of a “holistic culture of non-harassment that starts from the top.”

Further, to be effective, the training ideally should be “live, in person and customized to your workplace.”  Moreover, the training should be developed with “risk factors” in mind.

The EEOC report that will be released tomorrow includes “risk factors” that make harassment more likely.  Younger workers, workers who work in remote locations and those who are dependent on tips, for example, are at particular risk.

Based on my experience, I agree fully with the EEOC that the training must focus on what is inappropriate, even if it is not necessarily unlawful.  If you focus only on the legal, then individuals who engage in inappropriate conduct may feel more secure in their inappropriate conduct because it is neither severe nor pervasive enough to be illegal.

The EEOC Commissioners also talked about “bystander training” that is common on many school campuses.  They talked about adopting this kind of training so that co-workers feel empowered to intervene and have the tools to do so.

Recognizing that the law does not require civility, the EEOC Commissioners also called for civility training. Feldblum said that incivility and disrespect are “gateway drugs” for harassment. I agree.

Stated otherwise, if you tolerate incivility and disrespect, your culture will be fertile for harassment claims. I surely hope the NLRB was listening.

To minimize your NLRB risk, employers are well advised to give examples of civil and uncivil behavior. Providing specific examples, properly phrased, makes it less likely that the NLRB will believe a reasonable person will perceive the guidance as discouraging behavior protected by section 7 of the NLRA.  So there is no confusion, this is my take on how to mitigate (not eliminate) the risk.

An underlying theme is the importance of creating not only policies, but also a culture that brooks no retaliation. Fear of retaliation is the number one reason why employees suffer in silence.

According to studies cited by the Commissioners, approximately 70-percent of employees who feel harassed do not report it.  That is not good for them or their organizations.

The EEOC’s presentation was a clarion call for all of us to do more to prevent and stop harassment. It will not go away on its own. It’s on all of us, with HR playing a key role, to be part of the fight.

On a personal note, it was an honor to have been on the Task Force with co-SHRM member Patricia Wise.  I think I can speak for Patty and me in saying that we both learned  a great deal as a result of the study and dialogue, and we are ready to help do our part in helping companies do the right things for their employees and themselves by eliminating the persistent but conquerable problem: workplace harassment.

Finally, at a time when we see so much dysfunction in Washington, D.C., it was inspiring to see the bi-partisan collaboration of Commissioners Feldblum and Lipnic.  Bi-partisanship is not dead—at least not at the EEOC.

This blog is not legal advice.