Tag Archives: harassment

Carlson v. Ailes: #Harassment and #HR

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).

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

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.

The Often Unacknowledged Bias Against Asian Americans

I am pleased to share my latest post for the SHRM blog:  http://blog.shrm.org/blog/the-often-unacknowledged-bias-against-asian-americans

May is celebrated as the Asian American and Pacific Islanders (AAPI) Heritage Month: http://asianpacificheritage.gov/about/. At times, this celebration seems to get much less attention than months dedicated to other groups of the diverse fabric of workplaces.

Perhaps, this is because, as a group, Asian Americans have been largely successful. For example, while less than 30% of the general population has a bachelor’s degree, approximately 50% of Asian Americans do.

However, because a group, broadly defined, has been successful does not mean that we should ignore bias that may exist against individuals in that group. Indeed, focusing on the success of the “group” may result in ignoring bias against the individuals.

So, while this month we celebrate the achievements of Asian Americans, we need to focus on the bias against them, too. If we don’t eradicate the bias, then individuals will not be as successful as they can be. Here are my top 7:

  1. Not all bias is unconscious. Sometimes the bias is quite conscious. It is sometimes framed as “lack of trust.”
  2. Sometimes the bias is based on stereotypes. The stereotype is that Asians are strong in math and science. This may result in their being discriminated against when it comes to jobs that involve strong interpersonal skills, such as human resources.
  3. At times, the bias is unconscious. While we should not generalize in the name of sensitizing, respect is shown in many Asian cultures different from North American norms. Lack of eye contact, which may be intended as respect, may be seen as dissembling. Saying “no” indirectly may be seen as lacking certitude as opposed to promoting face saving.
  4. Because there may be cultural differences, some employees may be less comfortable with employees of Asian heritage. The “not-like-me bias” may result in exclusion of Asian Americans from social and other opportunities to access decision makers that may affect advancement and other opportunities.
  5. Because Asian Americans are often referred to as the “model minority,” more may be expected of them. When they may fall short of our inflated expectations, they may be seen as failing, even when they actually are meeting “standard” expectations. There is no such thing as a positive stereotype.
  6. Or, because of the “model minority myth,” Asian Americans may not get the help they need. If a group is “so successful,” then why do we need to spend time addressing the real bias that keeps individuals within that group from being successful or even more successful?
  7. And, harassment still exists, such as jokes about the shape of Asian employees’ eyes or mimicking the accent of an employee of Asian ancestry. Just plain ugly.

These are but 7 examples of issues to which we need to keep our eyes and ears open and respond appropriately if we see, learn or become aware of them. As leaders, to see and ignore is to condone. There is no such thing as a passive bystander when it comes to discrimination or harassment if you are a leader.

Now, let us celebrate the many achievements of Asian Americans: http://adrian.edu/uploads/files/AsianContributions.pdf. Check out the many websites referenced. The contribution is real.

But may we never forget the abject horror of the Internment of Japanese Americans during World War II: http://www.history.com/topics/world-war-ii/japanese-american-relocation Never again!

Lean Out?

I am please to share with you my latest SHRM blog post.

Sometimes clients ask me relative to gender:

1.  Would it be gender discrimination if we do X?

2.  Does the law require that we do Y?

Of course, we need to start with the legal imperative.  But, as HR professionals, we know we must transcend the legal imperative and focus on the business necessity (and moral obligation) to ensure gender equality.

For example, some subtle harassment may not be severe or pervasive enough to rise to the level of actionable harassment.  But it very well may create a place where women don’t want to work so they take their talent and contacts to a competitor.

Another example:  the law generally does not mandate that employers provide flexibility to help employees with work-life management.  But rigid employers will lose talented women (and men) to employers who get that flexibility and accountability are not inconsistent if managed correctly.

To paraphrase Sheryl Sandberg’s message in Lean In, organizations cannot survive, let alone thrive, if they exclude half of the pool of talent.  So, HR professionals lean in hard on the business case for gender equality or you may find successful women and women of promise “leaning out” rather than “leaning in.”

Mad Men: End of an Era?

I am pleased to share with you a blog I wrote for SHRM Blog.

Well, “Mad Men” is no more.

As AMC marketed it, we have come to an “end of an era.” Or have we?

While it was only a television show, or so people try to tell me, the workplace implications resonated with so many of us in the HR/business community. Perhaps that is because, while much has changed, some things are still painfully similar. Continue reading Mad Men: End of an Era?

She’s Too Sexy For Her Job

The all-male Supreme Court of Iowa re-affirmed its holding that an employer did not engage in sexual harassment when an employee was fired by her boss because he found her sexually irresistible. He was afraid that, if she remained employed, he would not be able to control the temptation to have a sexual relationship with her in violation of his marital vows.

The Court held this was not because of her gender but because of his “feelings” specific to the employee.  But wouldn’t that same analysis apply to quid pro quo harassment?  Quid pro quo harassment occurs, among other circumstances, where an employer fires a particular employee because she or he refuses to submit to “sexual feelings” that a manager has for her or him. Continue reading She’s Too Sexy For Her Job