Time’s Up: I am woman, hear me roar

January 17, 2018 - by: Rachel E. Kelly 0 COMMENTS
Rachel E. Kelly

“So I want all the girls watching here, now, to know that a new day is on the horizon! And when that new day finally dawns, it will be because of a lot of magnificent women, many of whom are right here in this room tonight, and some pretty phenomenal men, fighting hard to make sure that they become the leaders who take us to the time when nobody ever has to say ‘Me too’ again.” – Oprah Winfrey at the 75th Annual Golden Globe Awards

Let’s be clear, 2017 was the year of the woman. From Wonder Woman becoming a blockbuster hit grossing over $100 million in its first weekend, women in the entertainment industry speaking out about sexual harassment and unsolicited advances in the workplace, to abiout 600 sister marches held across the country and the world to coincide with the Women’s March on Washington. One thing is for certain: Women and their stories dominated 2017. So much so that major news outlets devoted countless headlines and primetime news segments taking a closer look at these women’s stories and causing companies to become brutally aware of their own sexual harassment policies (see Matt’s post here: http://hrdailyadvisor.blr.com/2018/01/04/48033/ ).

There is no doubt that the rush of sexual harassment claims came to a head earlier this month during the blackout 75th Golden Globe Awards ceremony. Dressed in an embellished all black gown, Cecil B. DeMille Lifetime Achievement Award recipient Oprah Winfrey, gave a riveting speech that demanded for time to be up on the old way of doing business. Winfrey’s acceptance speech highlighted women who have endured years of sexual harassment on their jobs and called for a change in the gender disparities in representation, hiring, and pay in and outside of the entertainment industry.

In the age of #Metoo and Time’s Up, what are some things that companies can do to correct pay and gender leadership disparities in their organizations?

1) Transparency – Don’t’ just talk the talk, do the walk. Take a look at the data (examples: the number of women in leadership positions, promotion of women as compared to men, and compensation comparisons) and be honest with the executive team and the organization as whole. This not only gets down to the truth, but it also enables accountability. If the organization admits its shortcomings to its employees, it’s more likely to make some systemic changes. But don’t stop there. Salaries and promotions should be evaluated on a regular basis to ensure equal treatment.

2) Give women a seat at the table – This is an easy one, but ensuring that women are part of diversified hiring panels intrinsically ensures that women are selected for positions at a much higher rate. In 2015 study (http://time.com/4087813/female-directors-study/) of the entertainment industry, results showed that when women directors and executive producers were at the helm of hiring decisions, they served as entryway for more women to be selected for behind-the-scenes roles. Additionally, a diverse slate of candidates should purposefully be presented to the hiring panel. Of course, the goal is not to present women candidates just for the sake of presenting them, but to make sure there is access for the most qualified and diverse candidate pool.

3) Make gender equality part of training and education – All employees should feel equally supported in choosing jobs that support their talents and challenges them to learn new skills. These jobs should have clearly demonstrable goals, be future-oriented, and lead to long, promising careers.

4) Culture – This starts with reviewing the employee handbook and company policies. Make flexibility and work-life balance a part of the company culture. Oftentimes, though a company’s policies indicate that flexible work schedules are available, women employees are forced to specifically ask to work part-time or from home, which can lead to an uncomfortable conversation. Be proactive about welcoming women and supporting their career goals.

What now? 5 steps to take if your probe doesn’t corroborate harassment allegations

December 12, 2017 - by: Marilyn Moran 0 COMMENTS
Marilyn Moran

The avalanche of complaints emboldened by the #metoo movement shows no sign of relenting, and many caught in its crosshairs have been unceremoniously fired or forced to resign based on allegations of harassment. Of course, when such allegations arise in the employment context, employers have a duty to investigate and to take action when there is evidence of serious misconduct, but what if your investigation does not corroborate the allegations? What then?

As an initial matter, the fact that your investigation does not corroborate allegations of harassment does not mean that they were false or that the complainant can or should be disciplined for making unsupported accusations. To a large degree, harassment is subjective, and what Documents Searchis offensive to one person may not be offensive to another. Legally, conduct must be both objectively and subjectively offensive, and severe or pervasive, and based on a protected characteristic (such as sex, race, or religion) before it may be considered harassment.

While employers usually apply a less stringent standard than the courts in determining whether sexual harassment has occurred, there are still a variety of circumstances when an investigation may not corroborate  sexual harassment allegations, even though the complainant provided an accurate description of the conduct and his or her subjective reaction to the conduct. For example, an investigation may reveal that the incident complained about wasn’t based on a protected characteristic. Alternatively, an investigation may reveal that the evidence is inconclusive because there are no witnesses or other evidence to either support or refute the allegations. In other instances, an investigation may corroborate that some type of unprofessional conduct indeed occurred, but the conduct complained of wasn’t serious enough to establish a violation of the company’s anti-harassment policy.

Whatever the reason, an investigation that yields a finding of “no harassment” still has the potential to expose your company to unnecessary legal risk if not handled appropriately, so here are five steps to follow when navigating this tricky situation:

1. Even if you don’t find a violation, ask the alleged harasser to sign a copy of your company’s anti-harassment policy. This will have the dual benefit of reminding the alleged harasser of the importance of appropriate workplace conduct and the consequences for violating the company’s policy, and it will help your company defend against future claims by showing that the policy was made known to employees and you made reasonable efforts to prevent and correct harassment in the workplace.

2. Thank the complainant for bringing the issue to your attention and assure him or her that your door is always open if problems arise in the future. The complainant will likely be discouraged or frustrated with the outcome of the investigation, but you can help lessen the sting by emphasizing that the company appreciates being made aware of the situation and takes all such complaints seriously.

3. Document your investigation thoroughly, including the various steps you took to reach your conclusion and the basis for concluding there isn’t enough evidence to establish a violation of your company’s anti-harassment policy.

4. Stress that retaliation is prohibited. You should stress your company’s nonretaliation policy to both the complainant and the alleged harasser. In addition, follow up with both of them on a regular basis (such as in 15, 30, 60, and 90 days) to find out whether there have been any further issues or problems between them.

5. Develop a plan for avoiding future problems. Even if your investigation determines that no disciplinary action is warranted, you should develop a plan for avoiding future problems between the employees. Is the problem based on a personality conflict? Can any steps be taken to improve communication and avoid misunderstandings between these employees? Would additional training help? If the relationship is beyond repair, is it possible to separate the parties in a way that would not trigger an accusation of retaliation or unfair treatment? Consider each of these issues, as well as the employees’ input and suggestions, to determine how best to move forward after the investigation.

Not every investigation will result in a finding of harassment or warrant disciplinary action for violating company policy, and that’s a good thing. By following these five steps, you can communicate the outcome of your investigation with compassion and fairness while protecting your business and, hopefully, avoiding future problems down the road.

When the floodgates open, expect water at your doorstep

November 13, 2017 - by: David Kim 0 COMMENTS
David Kim

About a month ago, my colleague Kristin Gray wrote about the breaking Harvey Weinstein scandal and best practices for employers to prevent harassment and discrimination from invading the workplace. And while I have no intention of reiterating any of the excellent points Kristin covered in her piece, it would be ignoring the obvious not to say that a lot has transpired since that breaking news story.

Virtually every day since then, additional allegations of sexual harassment and misconduct have been made against prominent public figures. Not just individuals in Hollywood (which include everyone from executives, producers, writers and actors), but also against politicians, publishers, and editors from various media organizations, news contributors, restaurateurs, and a slew of others. On top of these serious allegations, numerous individuals (both public figures and “regular” individuals like you and me) have used social media to share their own stories or harassment, not only sexually based but also other forms of harassment and bullying within the workplace.

Trending hashtag Metoo on concrete wallIt is not an exaggeration to say that this topic has quite literally been part of our daily news cycle for the past month. And it isn’t hyperbolic to state that employers need to be aware that, as a result, this topic is something they need to be able to address and address properly as harassment claims are likely to increase. There’s a reason why statistics demonstrate that Fair Labor Standards Act litigation increases after changes to wage and hour regulations are debated in the public realm, whether they are implemented or not. Sure, noncompliance is certainly a factor, but so is awareness, which results in empowerment, which results in action.

Now I am not comparing the clearly invidious acts of sexual harassment and other forms of harassment, which should be taken seriously at all times, with general wage and hour law. The reality, however, is that public awareness of these types of harassment allegations has undoubtedly increased the conversation regarding misconduct in the workplace. When celebrities talk about struggling with drug addiction, recovering from a severe medical prognosis, or dealing with another tragedy in their lives, they often want to share their story to motivate or inspire those with a similar struggle. While many hear these stories and are moved by the message, they might not be technically inspired to act since they didn’t experience what the person sharing their message did. But even if it’s not you, there is someone out there who has been motivated by that story in one way or another, whether it’s to kick their habit, resolve to overcome the disease they’ve been diagnosed with, or to simply fight harder despite the tragedy in their lives.

The same goes harassment allegations. It is no coincidence that the floodgates have opened since the Weinstein allegations came to light. People who have experienced similar forms of mistreatment have felt empowered to come forward with their own stories and the sheer number of allegations that have been levied make clear what we already know, that sexually based and other forms of harassment continue to exist in all forms of the workplace.

In March of this year, Senator Al Franken of Minnesota introduced a bill known as the Arbitration Fairness Act of 2017, which seeks to prohibit predispute arbitration agreements of employment, consumer, antitrust or civil rights disputes. Due to the recent spate of allegations regarding sexual harassment, those in favor of the bill have now specifically highlighted how victims of harassment in the workplace would benefit if they were not forced to go to arbitration, but rather could have the benefit of a trial by jury. While there are certainly contrasting arguments regarding the benefits to both parties in arbitrating claims, recent events of the last month demonstrate how social consciousness can affect the discussion of lawmaking.

But social consciousness also affects our everyday lives and workplaces. There can be no doubt that the social discussion surrounding sexual harassment will inspire and empower those in the workplace to also come forward with their stories, as it should. Employers, for their part, must be aware that they must be fully prepared to address any such allegations. Large companies throughout the country have instituted or fast-tracked mandatory harassment training in a direct response to the high-profile allegations in the news. All employers should consider these steps as well. As stated, the floodgates are open and employers must ensure that they timely treat these allegations completely and appropriately, or else risk drowning.

Workplace romances: Do they ‘Suit’ your company?

November 07, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

Like almost everyone I know, I love the ability to binge-watch television series these days. In fact, it is a rare occurrence that I ever watch any show at the time it actually airs. (This Is Us is a notable exception for me.) Instead, I enjoy delving into these characters’ lives several hours at a time. One such show that I am currently gorging on is Suits, which is in its 7th season and airs on the USA NetwBusinesswoman Receiving Red Rosesork. A fellow attorney recommended this show to me, but I was reluctant at first, as I often shy away from legal programsI have practiced law for almost 20 years and television should be an escape for me, right?!

For those who have yet to watch Suits, the premise is as follows: Harvey Specter is a Harvard-educated attorney at a top Manhattan corporate law firm where every case is high-stakes. He hires a brilliant associate, Mike Ross, who had falsified his background to state that he has graduated from Harvard Law School. The truth is, Mike never even graduated from college, much less law school. However, Mike possesses such a talented legal mind that Harvey keeps him on at the firm anyway. (This “falsification of workplace documents” issue involving Mike could certainly be a topic of a future blog….) While working at the firm, Mike falls for a co-worker, Rachel Zane, who is a paralegal. In her role as a paralegal, Rachel “reports” to Mike on many of the cases they handle. Mike and Rachel begin a relationship, secretly at first. Then, other co-workers at various levels learn about the relationship. While this all makes for great television, workplace romances can create headaches when they pop up in our real workplaces.

So, what can we learn from Mike and Rachel’s steamy relationship on Suits? Workplace romances, especially between persons at different levels in a company, can lead to HR nightmares. Notably, some polls reflect that more than 80% of employees have been involved in, or know about co-workers who have been involved in, workplace dating. So, what’s the issue? The biggest fear (and it is a legitimate one) is that a sexual harassment lawsuit will arise at some point in the relationship cycle, usually after one of the employees ends it. Of course, a valid sexual harassment claim requires the conduct to be “unwelcome.” Accordingly, if the employer can show that the relationship is truly consensual, no harassment claim will succeed. The difficulty, though, is proving that the relationship was truly consensual. That is even trickier when, as is the case with Mike and Rachel, one of the employees is a supervisor and the other is a subordinate. If the relationship goes sour for any reason, the subordinate employee may claim that it was never really consensual to begin with. Further, the employer may also be on the hook for a retaliation claim if the supervisor takes any adverse employment action against the subordinate later.

What can employers do to avoid this drama?

1. Consider adopting an anti-fraternization/“no dating” policy. Some employers fight Cupid’s arrow at work by having a policy in place that prohibits workplace romances, especially in a chain of command situation. These policies are tricky to enforce, though, and some companies simply do not want to invade the private lives of their employees any more than they absolutely have to. Of course, employers can also rely on their sexual harassment policies for assistance: If an employee brings information to HR that a workplace relationship has ended and the employee needs help navigating the fall-out with the co-worker/supervisor, then HR should rely on the harassment policy and remind all involved of the company’s rules and reporting procedures.

2. Consider utilizing “Love Contracts.” Such agreements, executed by the employees involved in the relationship as well as management, confirm that the relationship is consensual, and that the parties agree that the relationship will not negatively impact their performance or the workplace in any manner. Companies often attach their harassment policy to the agreement as an addendum, which makes it difficult for an employee to later claim that he or she did not know how to report conduct that allegedly violates the harassment policy.

Keep in mind, though, that the most important tool (which is already in your toolbox) is the company’s harassment policy. Possessing an effective harassment policy and procedurethat is sufficiently communicated to employees through trainingoften helps to avoid costly litigation when a workplace romance dissolves. For now, I will just keep holding my breath that Mike and Rachel can work through their difficulties and stay together (at least through Season 3, which I am currently watching).

Halloween at work: Don’t get BOOed by your employees!

October 30, 2017 - by: Angela Cummings 0 COMMENTS
Angela Cummings

Halloween can be such a fun holiday for kids of all ages. When October 31st falls on a weekday, as it does this year, ghoulish fun will certainly creep its way into the workplace. How can you, as a human resources professional, ensure that the day is more fun than it is scary? Simple. Just follow a few rules.Halloween theme 3

1: Make any Halloween office festivities totally voluntary

As you know, Title VII of the Civil Rights Act of 1964 protects employees from religious discrimination in the workplace. Even though most people would consider Halloween in 2017 to be largely a secular holiday, it does have religious roots. Be considerate of employees who do not wish to participate in dressing up in costumes or attending Halloween-themed workplace parties. The employee may have a religious reason for not wanting to observe Halloween, and the employee has no obligation to notify the company of his or her rationale for not wanting to participate. Keeping the festivities 100% optional will help prevent any such issues. (As an aside, keep in mind that one or more of your employees may request, as a religious accommodation, to miss work that day, as it is a recognized Wiccan holiday.)

2: Ensure that any Halloween costumes are appropriate for the workplace

As Lili Reinhart recently found out, not all Halloween costumes are created equally. The actress, who stars on the “Riverdale” series (on the CW), tweeted a picture of her planned Halloween costume, which was an all-black demon. The backlash on social media was swift and unequivocal, as the costume appeared to include blackface. Reinhart apologized immediately, stating that she could “see how it was interpreted as being insensitive, completely.”

Other celebrities have also caused debate in recent years, including singer Chris Brown who dressed up as a Taliban member, and Prince Harry, who dressed up as a member of the Nazi party. Such costumes, of course, in the workplace could lead to claims for unlawful harassment. Simply put, be sure that employees understand that all costumes must be workplace appropriate and that the costumes do not stereotype any religion, national origin, gender or race in a negative light.

In addition, employees should be reminded that any costumes should not be too revealing or provocative, and should not contain any type of weapon as an accessory. Finally, costumes should be safe: if the employee works in a job around heavy machinery or where chemicals from a costume could become flammable, then the safety risks outweigh the benefit of fun, and the employer should not allow the costume. When in doubt, ask the employee to go home and change.

3: Be mindful of the professional setting if you plan to allow children to visit the workplace on Halloween

Many employers allow the children of employees, and sometimes even children of customers and suppliers, to visit the workplace after school hours on Halloween and trick-or-treat down the hallways. Although such events can be morale-building and lead to employee bonding, they can also present unintended problems. As a practical matter, be sure that you have communicated this event to all employees and remind them several times prior to the day, so that large or important meetings are scheduled at other times. As cute as the kids in costume are, you do not want to frustrate an important customer or client who needs to be in your offices that afternoon for an important meeting.

Further, if a nonexempt employee needs to leave work to pick up his or her children to attend the event, be sure that you have communicated to the employee whether he or she must use PTO time for this voluntary activity, whether it will be allowed while on-the-clock, etc. Communication prior to the event is important.

With the above in mind, you can ensure that any Halloween-related festivities at your workplace are safe and fun (and uneventful from a human resources perspective!).

Think before you joke so you don’t have to litigate what’s ‘funny’

October 16, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

Studies show that laughing boosts immunity, eases anxiety and stress, improves mood, decreases pain, and can even prevent heart disease. Socially, laughing strengthens relationships. In addition to the value of humor in our personal lives, we cannot underestimate the power of humor at work. Humor aids in learning and memory retention, increases our ability to persuade others, and helps us to diffuse conflict. Distilled to its most simplest terms: Laughing feels good, and because of this, we enjoy being aroundand actually seek outpeople who make us laugh, not just in our personal lives, but also at work.  Businesspeople laughing in conference room

But, beware: Not all humor is appropriate in the workplace, both in content and in the context in which it is used. Humor can alienate people and constitute unlawful conduct. In his new memoir, Giant of the Senate, Senator Al Franken explained his initial deliberate decision to be “unfunny” following his lengthy career in comedy in order to be taken seriously during his Senate race and his tenure in office. He discussed his frustration when old jokes from his comedy career were resurrected by his political opponents during his first Senate race, which were taken wholly out of context during his campaign. When he tried to explain the context of one of his jokes to reporters and how it was funny, the humor did not translate and became publicly embarrassing for him.  It was then that he learned a valuable lesson about politicsYou can’t litigate a joke.” Because, as he reasoned, “when you’re explaining, you are losing.

Franken’s lesson is a valuable one–and not just in the political context but also when considering “workplace funny.” Title VII of the Civil Rights of 1964, the Age Discrimination in Employment Act, the Americans With Disabilities Act, and other laws prohibiting discrimination against protected groups all have anti-harassment components. Stereotypical jokes or sexually suggestive jokes can rise to the level of conduct that is considered a hostile work environment, which is prohibited by these laws. Jokes that are reasonably perceived as inappropriateeven if they are not intended as inappropriatecan still constitute a hostile work environment. A defense that the conduct or comments were intended as jokes, and not intended to offend, is a non-defense.

Additionally, once a supervisor or an employee is trying to explain the meaning of the joke and its appropriateness and context, they will be forced to rely on third parties, such as workplace investigators, judges, or juries, to make conclusions as to the interpretation of the jokes or conduct and whether it was a violation of the law or company policy. By then, any funny will likely be lost.

Here are some helpful hints when utilizing humor at work:

  1. Stay away (STAY AWAY!) from all humor that touches upon any protected class (e.g., gender, age, sexual orientation, race, religion, ethnicity, disability, etc.). This is true even if we are making comments about ourselves, as the comments can still be construed as offensive to others. If you are bordering on that line, or even approaching that line . . . STAY AWAY.
  2. If you are going to single anyone out as the target of a joke in a large group, make it yourself. Self-deprecation can effectively make people feel at ease. The purpose of humor at work is to bring people together. Humor that singles anyone outeven with the funniest of all intentionscan alienate.
  3. Avoid jokes and sarcasm in writing. We do not always know how these written messages will be perceived because the context is not clear and the reader cannot see our expression or hear our tone. As to sarcasm, when we write the opposite from what we mean, the message may not translate properly. So, for example, the e-mailed response “yeah right,” may actually be interpreted as “yes” as opposed to the intended “no,” which may ultimately be problematic, particularly years later in litigation.
  4. Avoid jokes in performance reviews or disciplinary documents. As with Tip #3, some documents are sacrosanct and should remain “unfunny” to be taken seriously.
  5. Think before you joke. When preparing a presentation, if you are wondering whether a joke is appropriate, the rule of thumb is that if you have to wonder, it probably is not.

In conclusion, managers should be funny but only at the appropriate time, in the appropriate context, and through the appropriate medium. As the saying goes, “Laugh and the world laughs with youexcept sometimes at work!” Because employment lawyers and HR professionals always seem to take the fun out of everything (e.g., see my prior post about the office Christmas party), I am aware that I have likely taken the fun out of funny, but perhaps we can joke about that someday!

 

Need to learn more? Sexual harassment is just one sign of a breakdown in company culture. There’s also bullying, racial discrimination,  hostile work environment, and the list goes on. When the workplace culture perpetuates these types of unlawful activities under Title VII of the Civil Rights Act of 1964 or other laws, employers are at extreme risk of costly lawsuits—not to mention irreparable damage to the company’s reputation and brand, employee morale, and other negative consequences. And employment law attorney will present Culture Club:  The Link Between Workplace Culture and Workplace Harassment Claims” at the 22nd Advanced Employment Issues Symposium in Las Vegas on November 17. This session will examine recent cases illustrating the ways in which aggressive business practices may foster a culture that breeds harassment claims, how to evaluate whether company leaders’ messages and tone aligns with your efforts to maintain a harassment-free culture, and more. For more information on AEIS, click here.

 

Harvey Weinstein: beauty and the beastly mogul

October 12, 2017 - by: Kristin Starnes Gray 0 COMMENTS
Kristin Starnes Gray

Over the last week, the fallout from a New York Times article regarding Harvey Weinstein has been swift and significant. On October 5, the Times published an explosive story about Hollywood producer and media mogul Weinstein’s alleged sexual harassment spanning decades. More and more women have been coming forward since the story broke to accuse Weinstein of unwelcome sexual advances and sexual assault during his time at Miramax and the Weinstein Company. The Times quoted Weinstein as stating, “I appreciate the way I’ve behaved with colleagues in the past has caused a lot of pain, and I sincerely apologize for it. Though I’m trying to do better, I know that I have a long way to go.”  Stop Sexual Harassment red stop sign held by a female

According to the Times, Weinstein has reached settlements with at least eight women over the years, and his former attorney, Lisa Bloom, has described him as “an old dinosaur learning new ways.” The growing list of allegations stands in stark contrast against Weinstein’s public image as a liberal, humanitarian, and champion of women. The Times quoted Ashley Judd as saying, “Women have been talking about Harvey amongst ourselves for a long time, and it’s simply beyond time to have the conversation publicly.”

Since the story first broke, the Weinstein Company has terminated Weinstein’s employment, board members and legal advisers have resigned, and Weinstein’s wife has announced she is leaving him. Meanwhile, the accusations have continued to mount. Gwyneth Paltrow, Angelina Jolie, and Cara Delevingne have come forward with additional allegations of sexual harassment. The New Yorker also published a story alleging that Weinstein has raped several women over the years.

Weinstein is reportedly entering a treatment program for sex addiction and has denied any accusations of nonconsensual sex. From former temporary employees to Hollywood A-listers, the accusers’ accounts have a similar narrative: young women hoping to find success in the industry but instead facing unwanted sexual advances from a top power player promoting a culture of fear. It sounds like a Hollywood film plot in the vein of 9 to 5, but this is far more serious and with real-life consequences.

Best practices for employers

Title VII of the Civil Rights Act of 1964 is the federal law that prohibits sexual harassment and discrimination in the workplace, though there are many state and local laws prohibiting the same. To maintain a sexual harassment claim, the plaintiff must generally establish that he/she was harassed based on sex, the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment, and there is some basis for holding the employer liable.

If the harassment is perpetrated by a supervisor but does not culminate in a tangible employment action, a defending employer may avoid liability if it proves the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

Best practices for employers to maintain healthy working environments and prevent harassment and discrimination from invading the workplace include:

  • Implementing strong policies prohibiting discrimination, outlining various avenues for employees to complain (taking into account the possibility that complaints may be against the person at the top of the chain of command), and prohibiting retaliation;
  • Training employees on the available avenues for complaints;
  • Training supervisors and managers on how to respond to a complaint;
  • Immediately investigating complaints; and
  • Taking prompt corrective action when complaints are substantiated.

Bottom line. Employers must practice commitment, communication, and credibility. It is their responsibility to ensure that potential complainants understand they will not be subjected to retaliation, the complaints will be taken seriously and investigated appropriately (regardless of the position of the accused harasser), and they have nothing to fear from using the complaint procedure. Let us know your thoughts on this developing story in the comments below.

Magnum, SMH

September 20, 2017 - by: Matt Gilley 0 COMMENTS
Matt Gilley

Who could possibly sully the sainted memory of Thomas Magnum, fictional private investigator and iconic 1980s bon vivant? All 45 of these guys, apparentlyMan partying

Here’s a quick hit in case you don’t want to follow the link: Bachelor partygoers decided they would take in a baseball game in Detroit between the Tigers and the Chicago White Sox. All 45 partiers (if only I were so well-liked) dressed as television’s best-known Detroit Tigers fan, Magnum, P.I. The fellows must have left their Higginses behind because they weren’t on their best behavior (hijinks during a bachelor partyperish the thought!). Eventually, the Tigers brass kicked all 45 Tom Selleck doppelgängers from Comerica Park.

Their sins? One of them was smoking and others were catcalling women in the crowd (no mention whether all those red Hawaiian shirts also crossed a line). One member of the party despaired that the Tigers ruined everyone’s fun because of a few bad pineapples, but, honestly, who could possibly separate one naughty Magnum from the other 44 angels?

You may be asking, “Matt, this is amusing and all, but what does this possibly have to do with HR?” That’s a fair question. The HR intersection is that employers need to be watching their patrons’ behaviornot just their employees’to avoid a hostile work environment. Employers can be liable for the harassing conduct of visitors, vendors, and customers just as they can be liable for the actions of supervisors and co-workers. If you are aware that a third partyor third parties, like four dozen Thomas Magnum lookalikesmay be harassing your employees or causing a hostile environment, you have a duty to take prompt remedial action to correct the problem.

So bravo to the Tigers. We don’t know whether the revelry was directed at any team employees, but the team had a problem on its hands and immediately corrected it. Sure, it probably cost them some concession revenueafter all, 45 guys could drink a lot of Old Dusseldorf. Still, you should heed the team’s example and be vigilant of your patrons’ behavior for the benefit of your employees.

In fact, you’ll probably have to be more vigilant. Potential harassers are rarely this loud and in-your-face, and they almost never wear identical, splashy tropical shirts.

 

10-step plan for fair and balanced approach to preventing workplace harassment

May 17, 2017 - by: Robin Kallor 0 COMMENTS
Robin Kallor

In less than a year, Fox News has lost its founder and one of its most well-known anchors due to widespread sexual harassment allegations. Fox News recently reported that 20th Century Fox paid $10 million in sexual harassment settlements in the first quarter of 2017 alone. How can Fox News be proactive in avoiding harassment claims in the future? Prevention is the best tool to avoiding claims. Here are some essential steps to prevent and correct unlawful harassment.  Stop Sexual Harassment red stop sign held by a female

1. Disseminate a workplace harassment policy that complies with state and federal anti-discrimination laws. The policy should encompass all forms of unlawful harassment based upon all protected classes, not just sexual harassment; although sexual harassment should be separately discussed within the policy.

2. The policy must be communicated to all employees at the time of their hire and should also be posted in the workplace. Employees should be given an acknowledgement to sign so that they acknowledge that they have read and that they understand the policy.

3. The policy must contain an effective complaint procedure that affords the employee bringing the complaint the opportunity to bypass the alleged harasser; however, the complaint procedure should not be too broad so as to encompass everyone at the organization.

4. The policy must contain an anti-retaliation provision, ensuring that the employees are aware that they will not be retaliated against for complaining internally, filing lawsuits/charges, or participating in an investigation.

5. The policy must not guarantee confidentiality; rather, it should state that, to the extent possible, complaints will be kept confidential. Obviously, an employer can’t keep a complaint confidential to the extent it must share the allegations during the course of an investigation. An employer, however, can guarantee that it won’t share the allegations with those who don’t have a reason to know them.

6. Employees (both managers and employers) should be trained on preventing sexual harassment and other forms of harassment at the time of hire and every two years.

7. Don’t require employees to put their harassment complaints in writing.

8. Respond to complaints immediately by conducting thorough and unbiased investigations.

9. Take appropriate remedial action following substantiated complaints of unlawful harassment by issuing disciplinary action commensurate with the substantiated conduct and continuing to monitor the relationship and the alleged harasser’s conduct toward others.

10. Keep your eyes and ears open and mandate that your supervisors do the same–if they see something, they must say something. Moreover, rumored allegations also should be explored.

Standing ovation for Adam Jones at Fenway

Kristin Starnes Gray

Last Monday, the Orioles made headlines for more than just their 5-2 win over the Red Sox at Fenway Park.  Orioles player Adam Jones reported that Red Sox fans called him a racial slur several times and threw a bag of peanuts at him as he was entering the dugout. Police reportedly ejected 34 people, including the person who threw the bag of peanuts. The Red Sox, Boston Mayor Marty Walsh, and MLB Commissioner Rob Manfred all condemned the fans’ behavior.  Fenway park at sunset

The following day, fans welcomed Jones with a standing ovation at Fenway Park before his first at-bat. Despite recent hostility that has arisen between the two teams after Manny Machado injured Boston’s Dustin Pedroia, Red Sox starter Chris Sale stepped off the mound on Tuesday to allow more time for Jones’ ovation. In addition, Jones thanked two Boston players, Mookie Betts and David Price, for their supportive text messages. African-American players for other teams also have come forward about their experiences with being called racial slurs by fans during games.

While we typically think of harassment in the workplace as occurring between two employees, Jones’ experience is an example of how important it is to be vigilant about the reprehensible behavior of non-employees. Title VII  of the Civil Rights Act of 1964 is the federal law that prohibits discrimination in the workplace based on various protected categories, including race.  As the Equal Employment Opportunity Commission has explained, “Harassment can occur in a variety of circumstances . . . . The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee . . . . The employer will be liable for harassment by non-supervisory employees and non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.”

Some important steps employers can take to prevent harassment in the workplace include, but are not limited to:

  • Establishing anti-discrimination and anti-harassment policies with complaint procedures;
  • Communicating those policies and procedures to all employees;
  • Training supervisors on what to do when an employee complains; and
  • Taking prompt and appropriate corrective action to address employee concerns.

In the meantime, let us take to heart these two teams’ classy showing of solidarity and mutual respect. Let this be an example to us of, not only good sportsmanship, but also the importance of treating each other with dignity and following the Golden Rule.

 Page 1 of 5  1  2  3  4  5 »