Tag: EEOC

The Scale of Harassment

Matt Lauer, Charlie Rose, Al Franken, John Conyers, etc., etc. etc.  The list of individuals who have or allegedly have engaged in sexually harassing behavior is getting longer by the day/hour and continues to surprise many.  #MeToo and national news headlines have sparked calls for resignations or terminations of nearly every individual accused.  For those employers who don’t make the news, they struggle with how to handle the harassment inside their ranks, trying hard to determine if a single allegation is enough to terminate.  As any lawyer will tell you, it depends.

While I have very little tolerance for harassment generally, harassment comes in degrees.  A dirty joke isn’t as bad as sexual assault.  An open bathrobe in the office is much worse than a Pirelli calendar hanging on the plant floor.  Yet, if employers have a zero-tolerance policy for harassment, then the single “sweetie” reference could cause result in a termination.  With this tight labor market, can employers afford to terminate everyone who uses terms like dear, sweetie, kiddo or who told a dirty joke?  I think the answer is no.  While the law might require severe and pervasive, employers can set their scale much lower.  Make the decision of how much lower is hard.

Whether they know it or not, each employer has a different harassment tolerance level – just like each employer has a different risk tolerance level from a compliance perspective.  The trick is identifying yours, staying consistent, and being vigilant about monitoring the behavior of those individuals who don’t get terminated.  Here are some tips:

Foster respect. You can’t harass someone if you’re being respectful.  Period.  Respecting employee personal space and dignity doesn’t get anyone into trouble and doesn’t register on the scale of harassment.  Require employees treat each other with respect.  (Yea, yea, the NLRB used to not like respectful workplace policies and terminations, but this new NLRB will (most likely) yield to these policies given just how fractious our social climate is now.  Moreover, the EEOC recommends civility training as a best practice to prevent harassment.)

Ponder the scale of harassment.  Consider the examples you have in your handbook about harassment and what would be egregious enough to get someone fired.  If you think about it before the conduct occurs, you’ll be better positioned to take action when you need to.  This doesn’t mean that you shouldn’t consider the facts of each allegation because you should take each situation on a case-by-case basis, but if you haven’t considered the behavior before, you may not be equipped to make the relatively quick decisions that you will face.  It isn’t fun to think about this, but you should.

Train, train, train.  I know, training can be expensive.  If it isn’t engaging with lots of examples and time for questions, it may not be effective.  That said, harassment training is a must.  Find someone who does it well.  Hire them.  Repeat it.  Open multiple channels for questions and concerns post-training.  Don’t shy away from the topic just because it’s controversial.  Do it because it’s controversial.

Look for power struggles.  As we’ve heard time and time again, the individuals who engage in harassment are using their power.  The obvious answer to this is to look for managers, leaders, and even employees who may be abusing their power.  Look for departments within your organization that have strict hierarchies or are generally a hotbed of discord and take the temperature of the employees.  When there is an abuse of power, harassment is more likely to occur.

Be vigilant with offenders.  It is possible that you’re not going to terminate someone for a “sweetie” or a single dirty joke.  But once the cat is out of the bag, you now know about it.  You can’t put your head in the sand and hope it never happens again.  You’re on notice that this particular employee violated the policy and may do so again.  You know that the employee could rub someone else’s shoulders.  If you didn’t “teach the lesson,” then it is quite possible that you could be liable for the next inappropriate comment and this time, the damage to your organization could be much, much worse.

These are just a few of the things you can do and are things each organization can do.  Also, take a look at the EEOC’s best practices.  Consider whether they will work for your organization.

When I first started my career as a naïve 24-year-old, I asked the partners I was interviewing with whether they could still make money on sexual harassment cases.  It was 2003!  They laughed at me.  “Of course we can!”  Unfortunately, we can today too.

Photo by Maria Molinero on Unsplash

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Uff. Arbitration.

Occasionally, I get questions about arbitration.  Should we have arbitration agreements?  Why would we not?  Isn’t it cheaper?  Isn’t it quicker?  Isn’t it secret?  In theory, arbitration can be cheaper, quicker, and maybe even secret.  That said, in real life, arbitration isn’t any of these things to the people that matter – the employer, the employee, and every other employee.

Arbitration is private court.  Depending on the rules you select, you have between one and three judges.  Attorneys represent both the employee and the employer.  There is discovery where the parties exchange information and depose witnesses in front of court reporters.  There are motions where attorneys for the parties argue (probably only in writing) over the rules of the hearing or whether the employee has a case at all.  And, finally, there’s a hearing that looks remarkably like a trial but most likely in a hotel conference room rather than a courtroom.  But, unlike court, once an arbitration is completed, there may be no right to appeal for both parties.  Each could be stuck with the judgment.

The employee and the employer must agree to arbitration.  Employees must sign arbitration agreements (most often at the start of employment) promising only to bring their case before an arbitration panel, not in court.  In most cases, the arbitration agreement is presented at the start of employment and is a condition of employment.  The arbitration agreement may include things like class action waivers (frowned upon by the NLRB, EEOC, and possibly the Supreme Court), confidentiality, and attorney’s fees provisions.

Arbitration is also controversial.  Just this past month, arbitration has been criticized by former FOX News host and Roger Ailes sexual harassment target Gretchen Carlson, U.S. Senator Al Franken, The Atlantic, and Slate.  Ms. Carlson has taken up the flag of eliminating arbitration as her cause, making her an odd partner with Minnesota’s super-blue Senator.  Slate argued that the current sexual harassment nightmare is the result of stripping the right to a day in court away from sexual harassment victims.  When arbitration class action waivers were argued before the Supreme Court just a few weeks ago, the Court appeared split.  While the Court has also allowed (some would argue encouraged) arbitration, the pendulum appears to be swinging.

Employers spend a great deal of time and resources on preparing arbitration agreements and educating employees that they can only seek redress through arbitration due to a piece of paper they signed when they hoped this job would work out.  No one starts a job thinking about how they’re going to sue them later.  So should we be forcing them to make that decision when they are optimistic about their future with you?  Would it be better to spend these resources on making employees feel valued, that they are contributing to the organization, and fixing issues as they crop up?  I would argue it would be better.

Currently, over 250 women and men are in arbitration with Sterling Jewelers over sexual harassment claims throughout Kay and Jared jewelry stores all over the country. The case was originally filed in arbitration in 2009 – over eight years ago.  When this many employees are involved (and many others are witnesses), the attorneys’ fees are this huge, and the time these cases have taken, the reasons for arbitration seem silly.  It has not been quick, cheap, or secret.

Somewhere out there (and probably closer than we think) is a smart, capable plaintiff’s attorney who is gunning for arbitration agreements.  With sexual harassment scandals coming from every direction adding to the calls to end these agreements, it might not be too hard to finally take them down.

Photo by Dmitry Ratushny on Unsplash

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