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.

Photo by Sweet Ice Cream Photography on Unsplash

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.

 

Photo by Daniel von Appen on Unsplash

 

What’s the Problem with Training?

Who here provides sexual harassment training for managers and employees?  Who here thinks their training prevents sexual harassment in their workplace?  Who here is confident that their managers know what to do to prevent harassment?  Who here is confident that sexual harassment could never happen in your workplace because you have a policy and you’ve trained?

Let’s be honest.  No one is confident that your workplace is 100% harassment-free simply because you have a policy and have provided training.  (Heck, if that’s how training and policies worked, we’d never have poor performance or discipline issues.)  We know that harassment can happen in spite of our policies and trainings.  We even read articles that suggest harassment training can have a negative effect the workplace.  So, should we stop training?  No.  Absolutely not.

Don’t lose hope in training.  Lose hope in bad training.  Here’s what makes training good:

It’s live. A live training invites conversation.  Conversation invites questions.  We want people to ask us questions.  It is a rare video that actually sparks conversation afterward, so if you are going to video, make sure you check in with folks after they’ve watched it or that the video includes a live (studio) audience.

It’s couched in respect. We know that harassment has a lot to do with power dynamics in the workplace and/or a lack of respect.  The training should reflect that.  I joke that harassment violates a lot of the rules we learned in Kindergarten – keep your hands to yourself, treat each other nicely, say sorry – and to a large extent that’s true.  If we treated everyone with respect, harassment wouldn’t be a problem.  Spend some time talking about respect and what that means for your workplace.  Hint:  This is the civility piece the EEOC wants.

It’s customized to the workplace. Managers and employees need to see themselves in the scenarios posed by the training.  It is important that the training be relatable enough that it makes people feel uncomfortable.  We learn in the uncomfortable.  A manufacturing facility needs a factory line example.  Software companies need software development examples.  A bank needs banking examples.  A retail establishment has an employee-customer example.  I can’t stress enough how important this is.  For hospitality clients, I’m using this video.

We play a game from my favorite podcast where the audience or I can stop the video at any point and talk about what we saw.  This video is so great because it has a gradual increase in severity until the big incident.  It sparks a lot of conversation – great conversation.

The trainer asks questions. What would you do if you saw this?  Would you step in?  Do you have to?  What does the company want you to do?  What if this happened to you?  These are the kinds of bystander questions that the EEOC wants to see in harassment training.  Even if the audience is hesitant to raise their hands, they are answering in their heads and waiting to see what someone else might say.  I’m happy with answering in your head because you’re answering.  If the audience can see themselves in the scenario and are asked what they would do, they’ll remember that feeling when they’re actually in a situation.

Acknowledge the fear. There is a lot of fear about harassment.  Men are afraid to compliment a female co-worker on her dress.  Companies are banning hugging.  A good trainer will tackle this fear head-on, explaining there’s a difference between “you look nice today” and “hey baby, that dress hugs you in all the right ways.”  Spending time talking about the fear and how to handle it can make people feel more comfortable with their own conduct and be more willing to talk to each other.

Folks learn who to talk to. We don’t need the audience to remember the ins and outs of harassment law – we only need them to remember what is problematic and who to talk to.  They need to know that HR is here to listen to them and if they’re uncomfortable with reporting the situation to HR, they can talk to any manager.  So, HR (and a member of upper management) should be there so the trainer can point to them.  “These are the people who will drop everything if you walk into their office with a concern about harassment.”  Employees and managers need to know they are not alone with this, and the organization really, really wants to hear from them.

Training cannot be the only thing an organization does to prevent harassment.  It takes a culture where employees trust managers and feel comfortable talking about these issues without fear of losing their jobs.  That takes much more than training.  But, training is an important piece of this.

I am doing a great deal of harassment training these days in response to #MeToo and #TimesUp.  While I wish these movements did not have to exist, I’m happy organizations are spending the time and resources to do the training.  Consider it for yours.

 

Photo by Jonas Jacobsson on Unsplash

Chatbots Chatting

If you use the internet, you’ve used a chatbot.  It’s quite possible you didn’t even know that you were.  Chatbots are cool – using one is like texting a new friend without emojis.  (My favorite is the Resistbot.)  As HR professionals, we see chatbots in recruiting, onboarding, and employee relations.  Chatbots offer quick, easy conversations with candidates and employees to help ease the burdens of busy HR folk.  Yet, as chatbots become increasingly easy to implement and cheaper, we should be careful of the risks.

 

Picking Up Issues

ChatbotLast year, I attended a vendor demonstration of a chatbot.  The demonstration was “live” so we’d know that the chatbot’s conversation was not canned.  The sales guy (and I intentionally say “sales guy” as he clearly had never worked in HR before) asked his Watson-based chatbot the following question, “How much time is available to take a leave?”  The answer from the bot, “Hannah, you have 72 hours (9 days) of PTO…”  Let that ruminate in your brain for a second.

 

Two of us in the audience immediately raised our hands.  “That’s not the right answer to that question,” we said in near unison.  Why not?  Because PTO is not leave and leave is not PTO.  The term “leave” brings up things like FMLA, pregnancy, and reasonable accommodations.  While PTO can be used during FMLA or leave when it is an accommodation, PTO is not a substitute for legally required leave.  The right answer would have been, “How do you intend to use leave?”  The use of leave would give an indication of whether FMLA or ADA will come into play.  If Hannah said “I’m pregnant” then the chatbot could say she could have 12 weeks available under the FMLA.  Twelve weeks is significantly more than 9 days.

A human in HR would probably be able to identify an issue whether the chat came from a potential applicant, seasonal employee, or a team member.  HR and recruiting professionals know that certain words when uttered by employees trigger certain laws.  Unfortunately for chatbot vendors, the list isn’t well defined or kept somewhere so that they can feed it into their bot and the bot will then know as much as a human.  Knowing all the words also means knowing employees, their situations and needs.  Until chatbots get really human-like, they will miss issues, including things like requests for reasonable accommodations, reports of harassment, or work injury issues.  (Imagine someone chats about a boss who grabbed a breast.  How will a chatbot respond to that?)

Why is this Important?

If anyone misses a legal issue – like Hannah’s leave issue – the clock starts ticking under the law.  If Hannah’s question about leave availability related to a pregnancy, she could now believe her company will only give her 9 days off for the birth of her child.  While we’d hope Hannah would reach out to an HR human, she might not.  She might think she can only take off two weeks and would be expected to return to work.  This could spark her to leave us, tell her friends how bad we are as employers, or even start a lawsuit once she learned of the FMLA.  This chat and the lack of follow-up could be a violation of the FMLA or state pregnancy leave laws.

The other reason this is particularly important is that there is a record of what the chatbot said.  Most chatbot conversations are recorded.  So, if Hannah meets a plaintiff’s attorney, her attorney will be able to request a record of her conversation with the bot.  Her attorney would be able to tell the date and time of Hannah’s question and (potentially) the lack of follow-through from the company to deal with Hannah’s question and request.  This is great evidence.

If Your Gonna Use a Bot…

While there are risks, good things exist in chatbots too.  “How much PTO do I have?” or “How do I get my paystub?” are great questions chatbots can answer without interrupting an HR pro’s day. This is why chatbots are hugely useful.  So, if you’re going to take advantage of this significant benefit, here’s what I recommend:

  • Have someone read through the chat records. You might find trends that will help develop training or modify your practices or even onboarding to help ease questions.  You’ll also pick up on the leave/FMLA issue described above.  Reading chats takes significantly less time than engaging in the conversations themselves, so please do it.
  • Talk with your vendor about compliance issues. Ask how would the chatbot respond to words like “leave,” “sick,” “boob,” and “hostile.”  These are just some of the big issues, and if the vendor stumbles here, move on to the next one.
  • Test the chatbot on these compliance issues. Pretend you’re going be an employee.  Test how the bot will work.  Your own interaction will help determine the ease of the chatbot and whether you want employees interacting with it.
  • Ask your vendor to do compliance issue updates. We get to hold vendors accountable only if we hold them accountable.  So, seriously, ask for compliance whether it is a new HCM or a chatbot.

We are all going to use more and more chatbots in HR and everywhere else.  We have to be careful as this is another way we talk to employees.  When we are not mindful of our conversations with employees, we fail.

 

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Some of Us Hear You

It’s February, Black History Month, and the return of #BlackBlogsMatter.  I love this time of the year – not only because we champion the contributions of African Americans, but because this is a great opportunity for some of us to challenge our thinking, our perspectives, and quite frankly, our privilege.

This is hard.  Many people believe that our country gives everyone the chance to succeed.  The point to the “self-made” folk like Oprah, Jay-Z, or Robert Johnson as people who have made it.  However, when we point to these wildly successful people, we are also suggesting that those who haven’t made it just haven’t worked hard enough.  This is a problem – maybe even the problem with pushing the “pull yourself up from the bootstraps” American narrative.  Our society and our workplaces have been built on this narrative with built-in advantages for white people (particularly white men).

Here are some ways we may be perpetuating the privilege:

  • We recruit from our networks, begging our current employees to mine their LinkedIn and Facebook networks to find our next great hire. However, there’s overwhelming evidence that we flock to people who look like us, creating networks without a great deal of diversity.
  • We recruit from educational institutions we or one of our friends graduated from. While some have made great strides, white folk still take up a greater percentage of college graduates.
  • Unconscious bias affects our hiring and promotions. We have started doing blind hiring, which can help, but we cannot hold this technique as the end-all, be-all that solves the problem.
  • We avoid having discussions of race. While our avoidance makes for a great SNL skit, our avoidance only allows the problem to continue to fester.

We have to be more proactive, more intentional with how we build workplaces that accurately reflect the world around us with the diversity of race, age, religion, gender, thought, etc.  If we don’t, we’re missing out.  Missing out on better decision-making, better business, and a better place for everyone.  This means taking a hard look at our current practices, having hard discussions, and confronting the problems whether we intentionally created them or not.  We can’t simply watch the documentaries, revise policies, or give lip service to our desire to build more inclusive workplaces.  We actually have to self-reflect as organizations and individuals even though the guilt seizes us with paralysis.

I don’t pretend to have all the answers here.  I do know that the best way to start is by listening to those voices we haven’t been very good about listening to and then lending our voices to help.  In a recent blog post, Jazmine Wilkes (a member of the #HRTribe) lamented the lack of white voices speaking up to combat the ongoing prejudice and injustice facing so many.  To Jazmine, Sarah, Keirsten, Tamara, Janine, Rachel, and all the folks writing this month for #BlackBlogsMatter, I hear you and here’s my voice.

 

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Why Help An Employee?

I’m a management-side employment law attorney.  I get to work with human resources. In fact, I am an HR professional.  So, why on God’s green Earth would I, as an attorney, help an employee?

HR has been taking a huge hit lately.  The #MeToo movement and the countless stories of rampant sexual harassment are now (thankfully) part of the national conversation.  The reoccurring theme has been “Where was HR?” or “Why didn’t HR do something?”  While that criticism in some circumstances may be fair, HR is a bit like the CIA.  We only hear about the bad things HR does (or doesn’t do), and we rarely hear about all the good HR pros out there who have steeled themselves and done what is right.  I’m lucky to know many of them.

When an HR pro doesn’t do the right thing – especially when they are given the chance repeatedly – there comes a time when the friendly neighborhood employment attorney has to challenge that particular HR department.  I do this because we need good HR.  When bad HR hurts one of us, it hurts all of us.  So, it is up to us to take us on, to speak up and help those employees who have done everything in their power, given their employers every opportunity to do the right thing and yet have had the door to HR (and management) closed to them.

I’m lucky to currently represent an employee.  You can hear her story here.  It may be a fair criticism that as a management-side attorney, I shouldn’t represent her.  To me, I should.  Because if I’m going to help HR do better, sometimes that means I have to take us on when we’ve done wrong.

 

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