Man-Bashing Training

Question:  Do we vilify men in harassment training?   

Think about that for a moment.  Do we use more man-on-woman examples?  (Probably.)  Do we need to change this?  Yes.  Harassment training is for everybody because everybody could harass.  According to a recent poll, one in seven men has experienced harassment at work. So, we can’t ignore men and their experiences just because so many women have similar experiences.

It is possible (and maybe even likely) that we’ve created an environment surrounding harassment training that we’ve alienated men or have come across as attacking them.  If this is the case, we should be criticized.  And, we should do better.  Here’s how I think we can do this:

Know our audience.  Every training should be customized to the workplace.  If the scenarios don’t feel real, the training won’t have an impact.  Because we have men in our workplaces, we can’t exclude their experience (and fear) from our training.  We should address it, and give a workable framework on what we expect from them.

Start with respect.  Often in trainings, I hear the statement, “I can’t even compliment a woman anymore.”  This comment comes from a man, usually over 40, who is sitting with his arms crossed, angry that he even needs to be in the room.  I turn to him and say, “There’s a difference between ‘That dress is very nice on you’ and ‘That dress hugs you in all the right ways.’”  He nods, and if I’m lucky, he chuckles a bit.  I then say, “We’re here to talk about that difference.”  That difference is respect.

For all of you labor lawyers cringing at this, listen up!  We live in a society where respect is under a near constant barrage.  We can’t operate in workplaces where respect and integrity aren’t at the core of what we are.  Without respect, we don’t get innovation.  So, we should make respect the cornerstone of our training. Our employees want respect.  They expect and deserve respect.  Starting our training talking about respect is what we must do.  If every conversation was respectful, we wouldn’t have harassment.

Have diverse examples.  Women-on-women harassment happens.  Men-on-men harassment happens.  So, we should have diverse examples.  Some of my best examples – examples that result in the most discussion – are man-on-man and woman-on-man.  We want to have a discussion and a bit of uncomfortableness.  Because we learn when we experience and are at least a bit uncomfortable, the discussion has any chance to really make a difference.

Use the whole scale of harassment.  Include examples of calling someone “sweetheart” or “man candy.”  Talk about staring, dirty jokes, and racial epithets.  You can talk about kissing, hugging, and even assault too, but ignoring the subtle stuff ignores where most harassment starts.  We don’t want this.

Ask, “what would you do?”  We should put our employees in the uncomfortable position of asking them what they would do.  You may be surprised by the responses.  Then, we should explain what we want them to do.  We don’t have to change their personalities to get between a harasser and his/her victim, but we should at least explain who we want them to tell.

Harassment training should mirror the tone of our workplaces.  It should set expectations and be meaningful for employees and managers.  It should make our employees contemplate their conduct without making them feel bad.

One more point:  Ladies, we don’t get to objectify men at work.  I’ve heard the argument that men have objectified women for a long time, so women should get to objectify men as a matter of fairness or even that they like it (uff da).  But like India has to grow green while we polluted for decades, we have to do the right thing.  We can’t objectify them either.  Enjoy a Magic Mike movie, but you can’t bring the poster into the office.  Ok?

This evening, I get to talk about trends in harassment training.  I’ve very excited (and a more than a bit nervous) about this.  Eliminating man-bashing will be one of the trends along with bystander and civility components, manager focus, and welcomeness elimination.  Any others you think I should talk about?

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Die Annual Performance Review Die

Client calls.  Asks if they can fire Jerry for performance reasons.  The first (seriously, the very first) question I ask is, “what do Jerry’s performance reviews say?”  Experience has taught me that performance-related terminations usually have a homegrown enemy – the employee’s previous annual performance reviews.  What if we could eliminate the enemy by doing it better?

No one likes performance reviews.  Employees lose sleep the night before a review meeting.  Managers hate completing all the forms and fear having uncomfortable conversations.  HR turns into nagging mother-in-law types trying to track down managers to get all the forms turned in so that performance increases can be made.  No one likes this.

Performance reviews are rarely done well.  Most typically, the reviews are so vague they are meaningless.  They focus only on recent events and not performance over the entire year.  They are chockfull of bias.  Sometimes, a manager pretends he lives in Lake Wobegon where all the employees are above average.  Because we in HR are focused on handling the next fire, we don’t have time to push back on managers who do not do performance management well.  So, a poorly completed review gets stuck in a personnel file until I ask about it when the client wants to terminate.

Even when the termination is completely warranted and lawful, it’s the performance review that hurts.  The termination is going to have to get explained.  I’m confident that I am not the only employment attorney stuck explaining why an employee was terminated for bad performance just weeks after a positive review.  (We attorneys should form a secret society complete with a secret handshake.)  Our explanation is often couched in terms of a rapid performance decline as explained by a manager who “wanted to be nice” in the review but had observed poor performance that resulted in a lost customer, order, and so on.  The explanation by both the attorney and the manager is expensive for the company.

These are just a few of the reasons I want the annual performance review to die.  I’m not advocating for the end of performance management – quite to opposite.  I want more frequent, meaningful reviews for everyone.  Here’s my wishlist:

  • Conversation coaching.  Managers need to have difficult conversations with employees about performance.  Most managers, and particularly new managers, have not learned how to have these difficult conversations.  HR pros are conversation coaches, so we need to coach our managers on how to have these conversations.  Or, we need to get our managers the training and skills necessary.
  • Frequent discussions.  I love one-on-ones when they’re done right.  Brief meetings that discuss how projects are progressing that also discuss how the employee is doing are vital to successful businesses.  With this, managers get a sense of what roadblocks they can remove, and employees get critical feedback on how to do better.
  • Transparency.  People need to know how they’re doing.  Managers need to tell them.  Use examples.  Explain how things can improve.  Show.  If employees know where they stand, they may be able to understand why you’re firing them and not believe it is for some unlawful reason.
  • Recognize.  It isn’t just poor performance that needs to see the light of day.  Good performance does too.  Managers need to know how to champion those performers with potential as well as coaching those who just haven’t meet expectation quite yet.
  • Documents.  (Insert collective reader sigh here.)  Yes, feedback discussions should be documented.  I don’t care you document provided you document and I can get it later when we need it.  You can use the functionality of your HCM or you can have managers email themselves brief synopsis of each conversation.  With the conversation coaching, coach managers how to document as well, including how to remove references to protected class status, leave use, or other items that could get an organization in trouble.

Employees deserve to know how they are doing.  More importantly, they want to know how they are doing.  That’s what a great performance management process can do – get employees what information they need to do their jobs well so we can do our business well.

 

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Sexism is Unlawful Too

Did you know that sexism is against the law all by itself?  Individuals can be sexist without sexually harassing someone?  Much of the #MeToo has focused on the ravages of sexual harassment  #TimesUp has focused a bit differently, focusing on the lack of advancement of women and wage gap issues.  This distinction is important.  While conduct that could constitute sexual harassment is often included in a sex discrimination cases, sexism by itself is also against the law.

Title VII’s prohibition on discrimination “based upon sex” includes many things (and arguably more things).  This “because of sex” provision in the law makes both sexism and sexual harassment unlawful.  It is just as unlawful to engage in sexist behavior as it is to sexually harass someone.  Both are demeaning, discriminatory, and dastardly.

Let’s start with sexual harassment.  Under the law, sexual harassment can be:  (1) quid pro quo which conditions employment (or advancement) on sexual favors or enduring sexual conduct; or (2) unwelcome conduct or comments that create a work environment that is intimidating, hostile, or offensive.  (We’ve dealt with welcomeness in another post.)  Often, sexual harassment cases include sexual touching, like sexual assault, but they don’t need to.  Frequent comments about someone’s sex life or sexual organs (including breasts) can create a hostile work environment.  Moreover, sexual harassment can be unlawful even if it has nothing to do with sexual desire.  It only has to do with sex and/or sexual stereotypes.

Plain, old-fashioned sexism can also cause a hostile work environment that is unlawful under Title VII.  Sexism is unlawful when enduring the offensive conduct or comments is a condition of employment or the conduct or comments are severe or pervasive enough to create a work environment is intimidating, hostile, or offensive.  Sounds familiar, right?  It should.  Yet, sexism doesn’t need to have anything to do with the act of sex – just a person’s sex.

Take for example demeaning comments like “A woman’s place is in the kitchen,” “Women should always be barefoot and pregnant,” “Grow a pair” or (my favorite excuse for derogatory behavior) “Boys will be boys.”  These comments are designed to demean women.  Period.  When these comments are pervasive (a/k/a happen a lot), they create a work environment that is hostile to women and unlawful.  When the comments are paired with conduct, such as only assigning men to do lifting tasks or segregating the sexes to handle particular work, the employer can (and should) be on the hook for discrimination.

These derogatory comments are often coupled with other signs of sexism.  This includes disparities in pay, lack of advancement, and even underrepresentation of women throughout an organization.  All of these need to be tackled even though they’re hard.  And, all need to be tackled even if no allegations of sexual harassment exist.

When an HR pro gets a report of sexism, she should treat it just as she would a report of racism.  Could the comments be demeaning to women?   Could the comments be offensive?  Could the conduct be an attempt to separate employees by gender?  Are other issues – like pay and representation – affected by sexism?  The question of whether any sexual activity – comments or conduct – occurred does not need to enter into the analysis unless it was reported too.  Just because sexual behavior is not included doesn’t mean the employer gets off scot-free.  Sexism is just as unlawful all by its lonesome.

 

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Harassment & Being the Boss

In response to the #MeToo and #TimesUp movements, state legislatures and localities are taking action, including requiring sexual harassment training and policies that explain where employees can turn if they don’t believe their employer has handled the situation appropriately.  New York’s new law requires that policies explain that employees will be disciplined for engaging in harassment and – perhaps most importantly – managers will be disciplined when they allow harassment to happen.

Did you read that?  Managers will be disciplined for letting harassment continue. This is where NBC, CBS, and nearly every employer who makes the news has allegedly failed – a manager knew about the behavior and didn’t make it stop.  This, ladies and gentlemen, is why manager training is critical to the end of harassment.

The law focuses on managers because managers are the employer.  They make crucial decisions, like hiring and firing.  They sign contracts.  Often, the buck stops with them even if they are in the dreaded middle management.  This means managers are responsible to take action when they get wind of harassment, but often, managers don’t understand the crucial role they play in preventing and stopping harassment.  As legislative bodies take more and more action, here are some of the lessons you can incorporate into your training now:

Managers must know the work environment they create and manage.  For a manager, the word “manage” is in her title.  So, she must actually manage.  Merriam-Webster defines the verb “manage” as “to direct or carry on business or affairs.”  No one can effectively do this if she doesn’t know what is going on or doesn’t understand how her people interact.  So, dear manager, know your people.  Also, set a tone of respect with your people.  Be the example.  (You can have bad days – pobody’s nerfect – but when you make a mistake, acknowledge it and move forward.)  While the “doing” might be more fun, the “managing” is your job.  When you know the work environment, you can take steps to prevent harassment.

Managers have the power to do something.  A manager can’t throw her hands up when she learns about possible harassment.  Harassment requires her to dig in, tackle the problem, and sometimes, make some really difficult decisions.  Organizations may differ on what exactly they want the manager to do – report to HR, step in and separate the people, suspend the alleged harasser, discipline, etc. – so train the manager on what to do and who to talk to when she needs help.  (Remember, managers need to know enough.)  In manager training, go through scenarios, talk through what the organization would want the managers to do.  This will invite participation, just the kind of interactive dialogue the EEOC and state agencies want in harassment training.

There is no such thing as an official complaint.  A whiff, a rumor, seeing someone uncomfortable or crying, a conversation between a manager and an employee that’s “just between us” all trigger action by an employer.  In order to have a defense to harassment claim, an employer must take “timely and appropriate action” when it learns of harassment, so if a manager learns of harassment, she puts the employer on the hook to take action.  Waiting for an “official” complaint is not only poor management, it creates liability for an employer.  No manager wants to do that.

You will get in trouble for harassing too.  Because the law treats managers as the employer, when a manager engages in harassment, the employer can automatically be liable for the harassment.  Managers have to understand this.

Harassment hasn’t always been clear, and the courts haven’t helped much.  That said, we have an ethical obligation to help employees and managers understand it and how we define respect in our workplaces.  The difference between “You look nice today” and “That dress hugs you in all the right ways” is respect.  One statement is a respectful compliment.  The other can be characterized as harassment.  Will your managers step in when they hear the dress one?  Will they know what to do?  Your managers absolutely need to know what to do at the moment the statement is made or when an employee tells what happened.  So, train them.  Please.

 

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FMLA Screaming (Part II)

Have you pondered the question from yesterday’s post?  Agree with me that there are things you can do and things you should do?  That should do includes approaching FMLA with come compassion and not being super strict with FMLA’s limitations, right?

Yesterday’s post covered some of my tips for the start of FMLA.  Here are a few more for during leave.

Preparation for leave is essential.  Hopefully, the employee knew he needed to go on leave and was able to prepare by giving his manager his passwords, updating her on the status of projects, and plan to turn over work.  Sometimes, this isn’t the case.  An accident, premature delivery, or quick onset of a serious illness can take the employee out of the workplace leaving a manager without the benefit of the advanced notice.  What do you do in these emergency situations?  Leave the employee alone.  The employee is already ill or injured himself, worried about a family member, or facing the crushing reality of being a parent to a new baby.  The status of the sales agreement with customer XYZ is not top of mind.

Let technology help you with not knowing what’s going on.  Get access to email and other systems to help piece together the status of projects without bothering the employee.  Need a password?  Work with the software vendor or your own IT team to recover a password if necessary.  Change permissions so the manager or another team member can see things.  Again, don’t bother the employee.

If the leave is intermittent and the employee’s need for leave could come as a surprise on any given day, plan for what that looks like.  How will the employee handle the sudden need to be off?  Come to an agreement with the employee about his work when this happens.  Does this mean the employee spends the last 10 minutes of each day sending a quick email on the status of things?  Maybe.  (Would that be a nice thing to have anyway even if he didn’t need leave?  Yep!)  Setting expectations is a manager’s job.  If the manager laments every time Juan takes an intermittent day, well then it’s the manager’s problem for not preparing for this – not Juan’s.  (I know, I know, this isn’t a great one-liner to share with the manager, but you all are good coaches, you’ll soften the message.)

Don’t surveil the employee.  Seriously.  Don’t send someone out to watch the employee’s house to see if he is cleaning his gutters or fixing a deck.  Don’t monitor his social media accounts for signs of a vacation.  Assume the employee needed the leave and is using the leave within his or his family member’s health care provider’s instructions.  If something fishy starts happening, you’ll learn about it.  Don’t waste your time and resources beforehand.

When the employee is ready to come back to work, don’t forget the ADA.  Yes, the ADA can be an even bigger headache for employers.  Yes, the Seventh Circuit recently held employers might not have to give more leave than the FMLA requires.  However, the ADA places a reasonableness standard on employers.  Employers are required to consider reasonable accommodations, including leave, for each requesting employee on a case-by-case basis.  Don’t get consumed with “well if we give it to Larry, we’ll have to give it to everyone else.”  Remember, the ADA requires case-by-case analysis.  For more return-to-work tips, check here.

Lastly, remember that communication is really important at the end of leave.  You may want to know if any restrictions are necessary.  You may want more confirmation as to what day.  For requests like these, remember K8’s rule of three.  Ask at least three times in writing before you assume the employee is abandoning his job.

I get that the FMLA is tough.  I get that it can be frustrating for HR and managers.  However, it can be a godsend for employees.  It’s supposed to give them peace of mind that their job will wait for them if they need to be out for a bit.  Use this fact as a part of your compassion and empathy game. The employee will thank you for it.

 

 

Photo by frank mckenna on Unsplash (Great, happy picture, right?  Perfect for a Friday!)

FMLA Screaming (Part I)

The Family and Medical Leave Act.  A great idea that causes many HR pros to scream, pull out their hair, and/or outsource their frustration.  So much so, there’s even a blog dedicated to it.  (Read it, Jeff is both funny and smart.)  Even though can be incredibly frustrating, it’s a fact of life that can be made easier by approaching it with a sense of calm and a smidge of empathy. This post includes some basic advice when dealing with FMLA issues.

First off, by in large, employees are not out to “game the system.”  Yes, we’ve all heard of FMLA/ADA/Work Comp fraud.  It is a thing.  However, most employees do not ask for leave to pull one over on their employer.  With that, let’s assume an employee who requests FMLA actually needs leave for herself or her family.  The need for leave is already distressing to the employee.  She is likely worried about her job, and she is also worried about herself or her family.  Focusing only on the impact to the employer will not support her needs in this time of emotional chaos.  Be supportive.

The employee may not know exactly what to do when she needs a leave.  So, she’s going to look at your handbook to find some information.  She will likely do this before she talks with HR.  Make sure your handbook is up-to-date, complete, and explains who to talk to about leave.  If she does not look at your handbook, she is probably going to talk to a trusted co-worker.  Hopefully, this co-worker will know just enough to tell her to talk to her manager.

Next, she will probably say something to her manager.  She might not say “leave.”  She might say “time off” or other words that indicate that she may need a leave.  This requires managers to understand the signals of a leave request, and this requires manager training.  Managers – especially new managers – need to know enough to understand what these signals are and what to do when they see, hear, or otherwise get an inkling that leave is an issue.  If they do, they will send the employee to HR.

Now that she’s made the request, HR needs to use the Department of Labor forms.  I joke when I’m speaking on FMLA topics that HR pros are not graphic designers.  Department of Labor makes the best forms for FMLA.  Nobody creates better forms.  More than 10 of my clients have made the mistake of using a vendor’s forms and not the DOL’s only to come to learn that the vendor didn’t have a very important question on its form that resulted in a loss of sleep, thousands in more settlement dollars, or confusion on the part of the employer and the employee.  Here’s the link to the forms.  Bookmark it.  One more tip:  Always go back to this page.  The forms get updated from time-to-time so the most up-to-date forms will be at this link.  Please do not print off 10-100 copies and stick them in a file cabinet.  Print a new set every time an employee requests leave.

Remember the cadence of the forms.  FMLA regulations set out when forms must be doled out and returned.  Understand these timelines and make sure you – the employer – follows them closely.  The DOL’s FMLA Employer Guide does a great job outlining these.  Bookmark it as well.

If an employee doesn’t turn in the forms on time, use K8’s rule of three (trademark pending) – request the employee return the forms three different times and document each of those attempts over a period of several days.  Send an email to her personal email.  Send a letter.  Send a text message (and screenshot the text).  If she still does not respond and is capable of responding (isn’t in a coma or otherwise hospitalized), then talk to your friendly neighborhood employment attorney.

Next, calm the manager by being proactive.  Managers can freak out about losing an employee to a leave.  They get nervous about how work is going to get done.  They worry about how and if other employees will be able to pick up the slack.  Go to managers with a plan.  Ask if they will need temporary help, an employee from another team who could step in on a temporary basis, or if another hire will be needed since the team was already overworked.  Approaching a manager with some options will help calm some likely frazzled nerves.

Tomorrow’s post will have some more tips on the FMLA, including what to do during the leave and preparing for a return to work.  In the meantime, consider this:  There is a difference between strict FMLA compliance that follows the letter of the law and being a bit more flexible with employees.  Relying on the strict letter may not seem fair to the employee.

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