I recall that we first began teaching management about sexual harassment prevention in the early 1980’s and I remember how the Clarence Thomas/Anita Hill hearings in 1991 took the discussion to a different level. In 2018, we’re seeing yet another step in the evolution of sexual harassment.
To this point, the employment regulations have recognized two kinds of sexual harassment. The first kind is called the creation of a “hostile working environment,” in which employees tell sexual stories or jokes or make sexual comments toward another employee or otherwise comment on sexual matters at work. In my experience, prior to late 2017, this kind of sexual harassment has been the most common and has occurred most often.
The second kind is called quid pro quo, which means “this for that.” You get the picture – “You give me a sexual favor and I’ll give you a job or a raise or a promotion.” In my 47 years of HR experience, I’ve encountered this kind of sexual harassment on occasion but it has been less common that the creation of a hostile work environment. At least, that’s what I thought . . . .
Today, we’re hearing other terms like “sexual assault” and “sexually aggressive behavior.” My sense is that this term falls under the quid pro quo definition but in a much more serious and aggressive way. The Harvey Weinstein story emerged first, followed quickly by Kevin Spacey, Ben Affleck, Al Franken, Matt Lauer and a host of others and, at this time, not a day goes by without a new revelation. For the most part, those accused have been powerful men and have been politicians or members of the entertainment industry. However, if past is prelude, it is only a matter of time until powerful women are accused of sexually harassing men. And, since the workplace mirrors society, it is only a matter of time until these kinds of accusations come into the workplace.
My prediction is that this will happen sooner rather than later. My sense is that, owing to the enormous amount of publicity this issue is receiving, as well as the notoriety of the people involved, employees will be emboldened and will be more likely to report claims of sexual harassment whereas, in the past, they might have just “put up with it.”
If you as an employer receive a claim of sexual harassment, it is important to take every claim seriously and to investigate each claim fully and comprehensively and, if necessary, to take appropriate action based on the evidence. Accusations are not evidence and no employee should be presumed guilty based only on an accusation. Decisions about appropriate action should be based only on the evidence and only after a full and comprehensive investigation, preferably by an objective third party, like our firm. In addition, no employee should be harmed by filing a claim of sexual harassment. This is called “retaliation” and is a separate claim, standing alone.
We recommend that every employer should have a policy, published in the employee handbook that prohibits sexual harassment at work and outlines a procedure for reporting allegations of sexual harassment. We also recommend a policy prohibiting management from engaging in a social, dating or romantic relationship with non-management employees. This includes virtually all persons in authority such as managers, supervisors, professionals and others. Otherwise, this is Trouble Waiting To Happen (TWTH). Here are some principles that might be helpful:
- Management should not date or have a social or romantic relationship with non-managers, on or off the job, or with other persons like vendors or suppliers, where a potential conflict of interest might develop, or where onlookers might sense a perception of favoritism or preferred treatment.
- Management should not hire persons with whom they are having a social or romantic relationship because this is TWTH.
- Management should refrain from language or actions that might send a romantic message to another non-manager. This could occur in person, by phone or by email or text. Indiscreet emails have been the downfall of many a person in authority.
- Persons in authority should not go to lunch or dinner with their employees or other workers who are not at the same employment level, unless the lunch or dinner has a clear and necessary business purpose.
- Revealing or immodest attire worn by one party is not a carte blanche invitation to impropriety by another party.
- If a romantic relationship develops between a person in authority and another employee, the relationship cannot be allowed to continue, as this is TWTH.
- The person in authority is the person who is held responsible and accountable for proper and prudent behavior and, in most cases, will be the person to suffer the consequences of an ill-conceived action. If a person in authority is the recipient of suggestive language or innuendo by an employee, the person in authority must put a stop to it.
- In most cases, employers should not take disciplinary action against the person who is not in authority, as this could lead to a charge of “retaliation,” which is a separate charge, standing alone, even if no other discrimination or harassment has occurred.
- T. Barnum once said, “Never overlook the obvious,” so picking up on P.T.’s advice . . . persons in authority should not ask for or require sexual favors from employees and should not force themselves sexually on other employees and should not condition continued employment or improved employment on receiving a sexual favor.
Above all, this is the time to conduct Sexual Harassment Awareness and Prevention Training. We recommend this training for all employees every 18-24 months but, in the current active environment, we recommend it for managers, supervisors, department heads and professionals immediately. This is a service our firm provides and it can save you a ton of money in terms of avoiding sexual harassment claims. We should point out that sexual harassment is not the only kind of harassment that the employment regulations prevent. Harassment on the basis of age, ethnicity, religion, race, or any of the protected categories is also prohibited. But, sexual harassment is in the spotlight right now.