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.
I am pleased to share my latest post to The SHRM Blog.
As a result of the “great awakening” last year of the persistence and pervasiveness of sexual harassment, we all know that more must be done to tackle this scourge. Companies are looking to enhance their preventive efforts, and, of course, that must start at the top.
To minimize the burden on victims, employers are empowering “bystanders.” For examples, employers are—or should be–modifying their anti-harassment complaint procedures to the extent necessary to make clear that an employee does not have to be the object of unacceptable conduct to raise a concern. Employees can raise concerns if they are “bystanders,” that is, if they see, hear or otherwise become aware of harassing conduct.
Leadership training also should include a bystander component. If you have power and you see or hear harassing behavior, you must make clear, “in the moment,” the conduct is unacceptable and then take prompt and proportionate corrective/disciplinary action.
I keep asking myself: what more can bystanders do? I have one suggestion for consideration: peer-to-peer interventions.
Take the following example:
- An employee sees his friend look a female co-worker “up and down.” To the best of the employee’s knowledge, no one but he has seen the unacceptable conduct.
- The employee has no power over his friend. And, he does not want to get his friend in potential trouble by filing a complaint, but does not want to ignore the conduct either.
If the employee is a true friend, he will talk with his peer. Consider the following response:
- I have bad news and good news.
- The bad news is that the way you just looked Jane “up and down” is not okay.
- The “good news” is that I am telling you now so you don’t ever do it again.
- This conduct demeans women and makes you look bad, too.
- Please promise me you won’t do this again and will review the Company’s anti-harassment policy.
The emperor wore no clothes because no one told him he was wearing none. There are degrees of unacceptable conduct, and sometimes a peer can jump in before what he or she sees or hears causes harm not only to others but also to his or her friend.
Of course, there are legal nuances that need to be navigated before incorporating peer-to- peer interventions into your employee training/education. Those nuances go beyond this blog
For now, it is very simple: friends do not let friends engage in harassing behaviors.
I am pleased to share my latest post to The SHRM Blog.
Responsible employers, among other steps, train managers on their “bystander” obligations. It is not enough to refrain from bad behavior. As a bystander with power, if you see or hear harassing behavior, you must respond to it. But how?
Let’s take a “hypothetical.” A business meeting takes place among executives. There are four men and one woman. During the meeting, the group realizes they are not going to meet Wall Street’s expectations. One of the men snaps “oh F…”
After he said it, the F bomber looks to the one woman at the table and says, “I’m sorry.” Another man at the table digs the hole deeper by adding: “He did not mean to offend you.” [How did he know that?]
By focusing on the one woman at the table, both male executives not only drew attention to her (re-victimization) but also suggested that she was a fragile creature who needed to be rescued and protected from their vulgar mouths (paternalism).
In this hypothetical, the woman was not offended by the expletive when it was used in response to bad economic news. But she certainly did not like the attention being placed on her. Having finished reading Jane Austin, she was not going to fall off her Victorian chair because of a curse word.
In this case, if anything were to be said, it should have been: “let’s keep it professional” but without focusing on the woman.
Change the facts: what if what was said was a “joke” that demeaned women? Should not someone apologize to her now?
NO! Again, that only makes her the focus. In other words, it makes it worse. Plus, it suggests, were she not there, the demeaning comment would have been okay.
The focus should be on the person who made the comment. Looking at the person who said it, someone with power (including HR) should say: “That is offensive to me. We will talk later.”
Respond “in the moment” so that others do not assume your silence is complicity. Then, take appropriate corrective action more confidentially.
Preventing harassment is more than preventing liability; it is about preventing harm. We need to train on “in the moment:” responses to bad behavior, or we may create harm in the process of trying to correct it.
THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.
I am pleased to share my latest article posted to Entrepreneur.
Entrepreneurs live to create, develop and refine products and services. They love using creativity to make a difference. The smart ones know they need the support of those who are comfortable with administrative stuff. Somebody has to make the trains run on time!
Administrative work needs to be valued but, over and over, I hear entrepreneurs complain they spend too much on administrative work of questionable value. “Administration” can become a behemoth that crushes creativity and steals time. Here are four red flags that administration may be interfering with your mission.
1. To get an answer you have to talk with many people.
If you regularly need to speak with five people to get one answer, you have a problem. Time is not only money but also energy. When no one knows the whole picture, then those with power will have more power but at the expense of profitability and the sanity of the employees.
2. Regularly hearing “not my job.”
Most employees sincerely want to do a good job. More often than not, employees welcome the opportunity to expand their skill. Of course, there is the occasional employee who will say “not my job.” But, what if that is something you routinely hear from different people in different words or ways?
The pattern may speak volumes. As insane as it sounds, the employees may have been instructed not to help. Use your people skills to ask directly and respectfully why the resistance. Listen not only to what is said but also what is not said. You may find the employee is uncomfortable with not helping as you are in getting the help you need. But, the employee is simply following orders.
3. Rigid rules instead of value-based rules.
We need values-based rules, such as not tolerating harassing conduct, and to enforce such values-based rules aggressively. This is different from rigid rules relating to operations that have no relationship to values or the evolving nature of business.
Every organization must have structure. But, some rules are implemented just to give those who enforce them power. In other cases, a rule may have made sense at a given time but no longer does. Ask why the rule exists. Sometimes people don’t even know why they have rules other than, “We always have done it this way.”
Other times the rules assume the worst of all employees. Guess what: that’s what they bring out, too.
4. Redundant paperwork.
A friend of mine refers to the term as “administrivia.” The more forms, the better. To increase the torture, administration insists on multiple signatures. Worse yet, only certain people can fill out those forms. A salesperson I met took a job for less pay because she was tired of filling out forms rather than taking care of customers.
If you are considering applying for a job with the government to escape the behemoth bureaucracy that hides under the label of administration, you have a problem.
What do you do? Stop complaining about administration if you feel your administrative function is out of control. Make sure those in leadership know where administration provides support or where it creates unnecessary obstacles.
If you provide factual concrete examples to leadership where administration provides unnecessary obstacles, you should get relief. If not, you may need to look to another employer to provide it.