Tag Archives: sexual harassment

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.

Advice for Managers: What I Learned from the Matt Lauer Revelations

I am pleased to share my latest post to Philadelphia Business Journal.

When allegations initially were made against Harvey Weinstein and Kevin Spacey, I admit I was not surprised. While I was not aware of their reputations, I always found both of them somewhat “creepy.”

When multiple individuals came forward corroborating each other, it became clear that we are dealing with serial harassers. Again, I was not surprised.

This is important because the additional evidence confirmed my emotional reactions to them. I know enough not to make investigatory findings based on an emotional pre-disposition, but everyone who conducts investigations needs to be aware of their own emotional predispositions so that investigations do not end up with “confirmation bias.”

Then, came the termination of Matt Lauer. I was, to put it mildly, shocked.

For many years, I started my mornings with Katie and Matt. I respected and like both of them. I had “welcomed” them into my home.

While Matt Lauer denies some allegations, he has admitted wrongdoing. In his first public statement since being fired from NBC’s “Today” show, Lauer said “Some of what is being said about me is untrue or mischaracterized, but there is enough truth in these stories to make me feel embarrassed and ashamed.”

I thought Matt was smart and likeable. More importantly, my sense was that he was a decent man.

So, when the allegations against Matt Lauer were released, and more women have since come forward, I thought: “this does not sound like Matt Lauer.” Of course, I don’t know him but his conduct as it has been revealed did not comport with my perception of him.

In workplaces, managers routinely receive complaints about other employees who allegedly have engaged in harassment. How they respond is incredibly important.

I was aware of my emotional reaction to Weinstein, on the one hand, versus Lauer, on the other hand. But what if my emotional reactions were reflected in my verbal responses as a manager.

What if I had said, about Weinstein, “I’m not surprised.” That would have suggested knowledge, even if not the case.

What if I had said, about Lauer, “That does not sound like Matt!” I would have been diminishing the allegations based on how I perceived the alleged wrongdoer.

When we train managers, it is absolutely critical that we provide them with guidance on how to respond “in the moment” to allegations of harassment. If we don’t, they may focus on how they feel and not the woman (or man) before them.

In my view, the appropriate response to a complaint starts with: “Thank you for bringing your concerns to my attention. We take them very seriously.”

Yes, it is human to have an emotional reaction based on your view of the individual who allegedly has done wrong. But, it is inappropriate to share that reaction when someone has the courage to step forward, regardless of whether you end up being right or wrong.

The truth is that none of us knows for certain who would–or would not–engage in sexually harassing behavior. That’s why investigations are so important, without assumptions, one way or the other.

I believe that Lauer is sorry. I hope that it is not simply because he got caught.

I thought I knew Matt Lauer. I was wrong.

Men Must Do More to End Harassment

But again we have been rocked by explosive allegations of sexual harassment and sexual assault. In the case of Harvey Weinstein, there are now more than 30 women who have stepped forward. Weinstein admits to bad behavior but claims it was all consensual. From what I have read, this is not a good defense, even for a science fiction movie.

Weinstein is far from the only predator in Hollywood, and Hollywood is just a symptom of the problem. The casting couch can affect who gets plum assignments, leads, contacts, etc. in any industry. Few men with power would ever consider, let alone engage in, the kind of conduct engaged in by Weinstein and others but they must do more than just refrain from the indefensible. With power, men have the opportunity, indeed the obligation, to create cultures where harassment does not flourish. So what do we do?

1. Stand up in the moment.
You don’t need to have a daughter to stand up. You just need a conscience and a spine. So speak up if you see or hear bad behavior. To be silent is to condone. Yes, the worst behaviors are very often private but sometimes they are accompanied by less serious but still bad public behavior. For example, don’t laugh at the sexist jokes. Instead, make clear they are offensive to you and then take corrective action.

The less serious public behaviors may be but the tip of the iceberg. Where appropriate, engage a third party to see if there is more than meets the eye. Climate surveys by skilled professionals can uncover what has not been reported without creating claims where none may exist.

2. Don’t wait for the direct complaint.
The victims of harassment frequently are embarassed or feel unwarranted shame. Some women won’t vocalize their discomfort but instead avoid the harasser or become uncomfortable when his name is mentioned. Observe closely for, and listen carefully to, signals that something may be wrong.

There won’t always be signals. But where there are warning signs, think about how to offer your help in a way that respects the recipient and does not create an issue where there may not be one. This can and has been done successfully.
3. Create additional reporting vehicles.
Fear of retaliation is a great inhibitor of timely reporting. So you may want to take a look at your company’s policies and at least consider having a procedure by which employees can report complaints externally, even anonymously.

Not every complaint is true and that applies to anonymous complaints, too. But every complaint should be taken seriously, and I have been involved in matters where the ability to report externally and anonymously has led to the facts that resulted in the unmasking of a serial harasser. So consider the option.

4. Hold other leaders accountable.
Harassers sometimes generate big bucks and that is why individuals sometimes cover up for, and even truckle up to, them. You need to cross their bridge to get meaningful work and the money that goes with it. Make clear to other leaders that you expect them not only to refrain from harassing behavior (severe or subtle) but also to report to a designated person or entity complaints or potential problems which they see, hear or of which they otherwise become aware. Ostriches don’t make good leaders.

As with all expectations, reward those who live up to them and punish those who don’t. Your organization is only as strong as its reputation and it can be destroyed if leaders are passive bystanders.

5. Model what you expect.
Most of all, men in power need to be good role models. There is nothing cool about demeaning women. The abuse is both powerful and pathetic. There is no defense to the indefensible. Sexual addiction is no more a defense to harassment than alcoholism is to driving drunk.

Speaking of alcohol, it is a major risk factor. Some cultures celebrate alcohol and such alcohol-centric cultures take away any slim inhibitors that otherwise might exist. Bottom line: it’s on men. Any questions, pal?

This column was originally published on Entrepreneur.com on 10/20/17.

The Role of HR in Smashing Harassment

Please read my latest post to The SHRM Blog on the importance of HR in stopping harassment.

I have been thinking a lot about Harvey Weinstein and other high-profile cases of serial sexual harassment. These cases are extraordinarily disturbing, to say the very least.

There are some who have suggested that the Weinstein nightmare is simply a Hollywood problem, dismissing it as nothing more than the age old “Hollywood casting couch.”  How patently wrong they are.

Hollywood needs to clean up its act, but it is not just Hollywood. What happens in Hollywood is but a symptom of a much broader societal problem.

Predatory sexual behavior by men with power exists in every industry. Of course, women can engage in harassment, too, but I am not aware of any women who have exploited their power to harass men or women in the way Weinstein and other men have done.

This is not to suggest that all men with power abuse it in such a heinous way. But leaders in general and men in particular must do more than avoid what is wrong, and behavior is wrong long before it rises to the level of what has been reported in the high-profile cases. By their words and their actions, leaders must make the organization’s anti-harassment policy a true reflection of corporate culture.

HR plays a critical role in this battle. Publicly, HR professionals must stand up to harassment and implement holistic programs to prevent it from occurring. But not all preventive efforts will be successful.

When bad behavior happens, there must be consequences. More quietly, HR has and will continue to play a key role in helping to remove from workplaces those who abuse their power and assault the dignity of others.

On social media, I have seen some ask whether HR is protecting the employer or its employees. The answer is both.

HR must protect employees and, in doing so, it protects the business from legal and reputational risk. There is a reason that the “H” in HR stands for human.

Recent events do not create a new issue for HR to tackle. The best HR professionals are already all over it.

But HR has an opportunity, indeed an obligation, to ask itself: What more can be done? The HR professionals with whom I speak are asking questions along the lines of:

  • How do we ensure that leaders do not simply pay for but attend anti-harassment training and make clear their support for it — again, by their words and actions?
  • What is the best way to assess whether there may be a culture of complicity and, if there are complicit people with power, how do we best incent them to do what is right and stand up to what is wrong?
  • Knowing that many women who feel harassed do not bring claims out of fear, how can we create complaint procedures and environments in which employees do not fear retaliation if they raise or support concerns?
  • How do leaders respond “in the moment” to unacceptable conduct without engaging in paternalistic rescuing or re-victimization?
  • Other than thanking an employee for bringing any concerns to their attention, what should leaders say (or not say) when an employee has the courage to open up to them?
  • How can we respect the strong desire of many victims of harassment to keep the matter as confidential as possible but still send a strong message that the company will not brook unacceptable conduct, severe or subtle?
  • What are some promising practices to remind employees throughout the year of the reporting mechanisms, assurances of non-retaliation and harassing behaviors that must be avoided, recognizing that, even in the best cultures, training once a year may not be enough?

These and other questions require careful thought. Our employees deserve nothing less.

But one point must be crystal clear in every organization: The more power you have, the more is expected of you. Those who abuse their power must be met with prompt and proportionate corrective action.

In some cases, this will mean terminating the rainmaker. But if you ignore, or worse yet protect, him, a jury can and will take away all the rain. Plus, values matter.

While I am horrified by recent events, I have some hope by the response I see in the HR community. But HR cannot do it alone; it does not “own” civility.

Every leader must join the battle. It is one of the moral imperatives of our time.

Segal was appointed to and served as a member of the EEOC’s Select Task Force on Harassment. However, Segal speaks for neither the EEOC nor the taskforce.            

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

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).