Relationships Fail

I’ve been a bit of a Donna Downer over the past two weeks.  With 15 harassment/respectful workplace training sessions, I have repeatedly explained the following:

Relationships fail at an alarming rate.  Think of all the relationships you suffer through before you get married.  Could be a lot, right?  Then, only 50 percent of marriages last.  So if you start a relationship at work, it might not last.  Are you ready for that?

Fifteen percent of relationships start at work.  This means that employers – and probably more than a few HR folk – wring their hands over what could happen with a relationship at work.  They may be worried about harassment, favoritism, and the distraction.  But they are also worried about the break-up.  Will the couple be professional?  Will they be petty?  Will their harassment and retaliation policies be invoked?  There are all sorts of worry.  Here’s what I’d like us to worry about.

Professionalism.  When we’re dating someone, we’re not professional.  We don’t keep physical contact to handshakes.  We may (overly) use emojis in emails and messages.  We share secrets, gossip, and vent about work stuff with our significant others.  These are all examples of behavior that is rarely “professional.”

Confidentiality.  Being in a relationship at work may mean we’re sharing sensitive and confidential information with someone who should not have the information.  If one of the couple is in payroll, processing bonus checks before bonuses are announced and shares what his partner is going to get before the announcement, this is a problem.  When we’re in the relationship, we believe we could trust our partner, yet people make mistakes.  Information goes farther than it should.  People find out about decisions before we’re ready to share them and

Harassment.  When couples get too touchy-feely in the workplace, others are uncomfortable.  As Black Widow once told Captain America, “Public displays of affection make people uncomfortable.”  When others are uncomfortable, harassment policies come into play.  It is not unusual to see another employee complain of harassment, especially when they believe (rightly or not) that favoritism is rearing its ugly head.

Chain of command.  When a relationship involves a manager and one of her employees, everything gets more complicated.  There will be allegations of favoritism.  If (when) the couple is in conflict with each other, it may (will) affect their working relationship.  Some of my clients prohibit these kinds of relationships, and I don’t blame them.  We may change the reporting structure, transfer one to a different shift or department.  The risks here given the imbalance of power are significant.

With those concerns, some employers resort to love contracts.  Please don’t.  Love contracts give the appearance that the employer is dictating the terms and conditions of the romance.  And, with the piece of paper, we look even more like we’re heavily monitoring the relationship.  Not a good look.  That said, HR and a manager can certainly have a conversation with the couple about their responsibilities to be professional and avoid the appearance of conflicts of interests.  This conversation should happen.  It even should be documented by HR, but please don’t have a love contract signed by the couple.  We want to be human at work, not overlords.

Despite some of the content of this post, I’m a huge fan of love.  We go into love with big eyes, big hearts, and bushy tails – as it should be.  When that love happens at work, there’s a new level of complexity where we have to be careful.  Call your friendly neighborhood employment attorney.

 

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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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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 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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Let Go of Welcomeness

In the legal world, welcomeness has been an element of a sexual harassment claim since Meritor Savings Bank v. Vinson – the first U.S. Supreme Court case to recognize sexual harassment under Title VII.  Did the alleged victim welcome the breast grab?  Did she engage in the sexual banter herself?  Did he want his “junk tapped” by coworkers?  If a claim is going to be successful, this analysis is a must.

Yet, this legal standard doesn’t capture the reality of workplace harassment.  It ignores several factors that are at play that could suggest the conduct is welcome when it is most definitely not.  Let me try to convince you that we need to focus on the conduct or comments of harassment and not whether that same conduct is welcome.

People say, “it’s okay” to make the encounter end quickly.

When something bad happens, we often say, “it’s okay” because we want a couple of things: (1) we don’t want to really talk about how we’re feeling, and (2) we want to get out of this situation.  This happens with sexual harassment too.  If someone grabs a butt or a breast – especially if that person is a co-worker or god forbid a manager – we want to get out of this situation fast.  Like super duper fast.  If we actually talk about how this feels or if we challenge a person who has input on our career (including co-workers), we might feel that we’re going to make the situation worse.  So, we say, “it’s okay,” “don’t worry about it” or even shrug it off.  These words or shrug are not words of consent but are words of resignation.  We’re resigned that this happened, and we want to move on.

People do this all the time.  We don’t always confront our racist uncle at Thanksgiving dinner or our pastor after a particularly homophobic sermon.  We don’t because we don’t want to cause trouble.  So, why do we make harassment targets do the same thing to prove that they actually were harassed?  (If I had a dime for every harassment policy that says you must tell the harasser to stop as the first step…)

For HR and harassment investigators, the “it’s okay” is a challenge.  For those focused on whether the conduct was welcome, this is the silver bullet.  She said, “it’s okay” so it must be.  It was welcome.  Nothing to see here.  No harassment.  This is the problem. Reminder: Employers have an obligation to keep harassment out of the workplace. Employees have no obligation to report under the law.

Even when sexual conduct is welcome, it’s unwelcome to somebody.

In harassment trainings, I go through a bunch of scenarios.  One of my favorite rapid-fire scenarios is this:

Colin has been head’s down on a project for weeks.  The project is finally over, and he accompanies the team to happy hour to celebrate.  He’s so happy to be done with the project, he kisses Judy.  Is this harassment?

Without fail, within five seconds of reading this scenario, some jokester yells out “what if Judy is his wife?”  I give him (always a him), a look that screams “listen, buster” and calmly say, “Do you work with your wife?”  (Hushed giggles throughout the crowd.)  If Judy was Colin’s wife, arguably he does not engage in sexual harassment as the law would view it.  If Judy is his wife and they begin a rigorous game of tonsil hockey, then the team around them turn their heads away, get up to go to the bathroom, and/or otherwise consider calling it a night.  If this happens, there is an arguable case for sexual harassment since the team clearly did not want to watch the competitive sport of kissing as played by their coworkers.

Here’s another rapid-fire example:

Peter and Juliet joke around all the time.  The jokes have turned flirty with both commenting on each other’s bums.  Is this harassment?

Depending on the industry I’m training, a varying degree of uncomfortableness spreads throughout the crowd.  They suspect the answer is yes, and some will admit they may have done this but they’re not sure if this is “illegal.”  I explain that I’ve helped an organization in a very similar circumstance where the banter was consensual, but the person next to them had to hear it day in and day out.  Eventually, he complained to his boss who then promptly fired him.  While the underlying sexual harassment claim might not have been actionable, the retaliation that resulted was clear.  The lesson here for employees – don’t engage in sexual banter even when you and the other person wants to.

Even when sexual conduct is welcome, it doesn’t always stay welcome.

News flash:  Romantic relationships fail at an alarming rate.  Consider all the relationships that an individual has to go through before marriage.  Then consider that half of marriages fail.  That’s a lot of failed relationships.  In the workplace, relationships fail a lot too.  When a welcome, romantic relationship fails the potential for harassment or retaliation to occur is high.  Scorned lovers – male or female – exist and wreak havoc.  They can seek to rekindle their love with unwanted words, gestures, and touching – all potential conduct in violation of an employer’s sexual harassment policy.

Let’s let go of welcomeness.

When we get a complaint of harassment, we need to look at the conduct or comments that led to the complaint.  It shouldn’t matter whether the conduct was invited or even wanted.  What should matter is that we don’t want our employees, clients, customers, vendors, etc. to watch a rigorous game of tonsil hockey, a butt grab, or hear a particularly randy joke.  We shouldn’t tolerate it in our workplaces regardless of whether it was the married couple in cubes four and ten or the supervisor to her employee in the breakroom.  It’s the conduct that is the problem, not whether it was welcome conduct.

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Beyond Legal Risk

Harassment is a costly business.  The actual cost of a harassment lawsuit could include wage loss, emotional distress, civil penalties, and attorneys’ fees.  The actual monetary hit a company can take is not small.  In theory, it could put a business under.  But there is a much, much larger risk that employers need to understand – the loss of reputation.  The loss of reputation falls into two distinct yet related categories:  loss of customers and loss of employees and candidates.

Loss of customers (or vendors, suppliers, etc.) is not insignificant. Signet Jewelers lost significant revenue when women turned away from its jewelry stores after harassment and discrimination issues came to light.    When Uber placed a surcharge on riders headed to airports to protest immigration issues and followed closely by Susan Fowler’s blog post outlining the rampant gender discrimination and harassment at the ride hailer, Uber suffered mightily.  It lost revenue, over a quarter of a million users, and become under close scrutiny around the world.

A loss of customers does not just affect large companies.  Small and medium-sized companies who are embroiled in scandal can get shuttered too.  For example, a Charlotte, North Carolina eye doctor surrendered his medical license and filed bankruptcy after sexual harassment allegations came to light.  A tech startup (in the HR-space no less) can’t raise funds or keep valuable customers after its CEO resigned in disgrace following harassment allegations.  This idea that harassment allegations can’t happen here is a myth unless you actively and obsessively build a respectful workplace.

Keeping and finding talent is also a challenge for a company with a reputation problem.  Uber employees were looking for the exits after Ms. Fowler’s blog post.   Employee turnover is high when a bully or harasser is able to stay with a company as inappropriate comments or conduct is a sign of a bad corporate culture.  Recruiters have to work harder, explain more, and actively try to “sell” your culture rather than let your culture speak for itself.

These days with review sites like Glassdoor and Indeed as well as social media, candidates can also get a good sense of a company culture well before an interview.  Take this Glassdoor review.  The review states that this employee is “sexually harassed on a daily basis.”  Or this review that states that the owner “encourages a hateful and discriminatory environment[.]”  Or even this review on Indeed that simply says, “Do NOT Apply if you are female.”  By a Glassdoor survey, 70% of candidates read reviews before interviewing with a company.  Will the reviews you get effect who wants to apply and/or interview with you?

Today, the Weinstein Company is likely to declare bankruptcy.  The Weinstein Company is not the first company to seek bankruptcy protection after an explosive sexual scandal.  American Apparel, Bikram yoga, Le Cirque, and neighborhood Mexican restaurants have all entered into bankruptcy following allegations of sexual harassment.  It can happen to any company who does not take the risks of sexual harassment seriously.  But these are just the financial risks.  The long-term effect of a bad reputation will linger on these companies and their products and services.  So, if you’re concerned about harassment in your workplace, do something about it now.  While not all small and medium-sized businesses will make the front page when harassment allegations surface, customers, suppliers, candidates, and employees will learn about it.  Don’t let it fester and get bigger and even more toxic and damaging.

 

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