The View From the Front Lines - Tips and Commiseration for General Counsels and Human Resources Leaders

03-07-2018

The subject of workplace sexual harassment has rarely been so firmly in the public consciousness as it is at this moment. Allegations are being raised in every field, in every corner of the country, with alleged perpetrators defending themselves in movie and television studios, executive boardrooms, and the highest reaches of government. The headlines are emboldening people – generally (but not always) women – to come forward in unprecedented numbers.

While no one can predict the long-term effects of this phenomenon, those responsible for preventing harassment in the workplace -- in particular, general counsels (GCs) and heads of human resources (HR) -- must acknowledge what is happening and respond to it thoughtfully and effectively. GCs and HR leaders have a unique perspective on company culture and a unique role when it comes to a company’s commitment to a respectful workplace. In addition, they are on the front lines, as they often are among the first to learn that harassment may have occurred.

There have been many excellent articles written about the legal requirements for processes that company management should undertake in order to effectively respond to sexual harassment claims.¹ There are also excellent articles about effective training.² The purpose of this article, however, is to suggest just a few practical measures that GCs and HR leaders can take in order to foster a respectful working environment. We offer these suggestions based on years³ of experience in both of these roles, with the hope that you’ll find at least some of our tips to be useful, as you navigate the challenges of these very demanding roles.

Let’s start from the premise that prevention is, of course, key. Everyone will agree that it’s better to prevent claims than to respond to them. The challenge is to create and cultivate a culture where claims are less likely to occur. To that end, we have collected a few practical suggestions for promoting a respectful environment, where claims are the exception rather than the rule, and we conclude with a few of our thoughts about the initial handling of a claim once one is presented to you.⁴

Who Needs CCTV When You’ve Got Employees?

First, a basic truth. Both immediate supervisors and senior management are being observed every moment that they’re in the workplace. What managers say, how they act, whether they seem fair, open-minded, approachable -- all of this will be noted and gossiped about by the employees who report to them, and by others. This is especially true for the inhabitants of the C-suite, whose behavior will serve as a template, good or bad, for everyone else down the line. So, what can be done do to ensure that the hallmarks of a good culture are being exemplified and spread? How can we get the people at the top to actually exemplify the necessary behaviors?

You Must Walk the Walk Yourself

Employees are especially aware of the behavior of the GC and the head of HR. Employees expect the people in these roles to monitor what is happening and to speak up when something is going off track. When this doesn’t happen, when employees think that legal and HR are either clueless or turning a blind eye, it can seriously undermine any attempt to establish or improve the culture of the organization.

Speaking from experience, this is not always easy. GCs and HR heads are people too. Nobody wants to be seen as a killjoy or the police. The desire to be a part of the team, to have a good relationship with the rest of senior management or with other parts of the organization (the sales team comes immediately to mind) is seductive, real, and powerful. However, it is critical to understand that one’s own comfort and desire to be seen as a member of the team must be secondary to speaking up and stopping behaviors that could be off-putting (or worse).

We know from experience that, at times, it is certainly no fun to be a GC or an HR leader. As one of our CEOs once put it, “What I need is for you to be thick-skinned, hard as nails, but also empathetic.” Easy, huh? 

Train Everyone and Participate Personally, as Often as Possible, in Training Sessions

For those of us who have focused on compliance with laws, rules, regulations, and policies of whatever kind, emphasizing training is a no-brainer. It helps mitigate legal exposure by creating awareness, teaching what to do and not to do, and in some cases, training can be raised as an affirmative defense to a claim. It also can have a significant impact on an organization’s culture. But training that is inconsistent, poorly presented, or perceived as irrelevant can sometimes be worse than no training at all.   

Here’s something else we’ve learned: No supervisor is going to show up at training or take them seriously if she hasn’t seen her own manager show up and take it seriously. Your first job is to ensure that ALL managers are conspicuously present when training occurs. And not just physically present – they must be engaged and actively participate. Their direct reports will be carefully watching. Bad behaviors will be noticed and discussed and might even be captured on a cell phone! This is certainly not the time for the participating managers to trot out humor in an attempt to look cool. For example, it was remarkably unproductive when a manager at one of our sessions raised his hand and said that he was happy to attend a sexual harassment seminar, but he wanted to know when the lab would begin.

Which raises the question: How can people see that their managers are engaged in training if training takes place online? Obviously, they can’t. Online training eliminates the opportunity to benefit from intelligent questions that are raised in live training sessions or from the back-and-forth dialogs that occur when people offer examples from their own experiences.⁵ Plus, everybody knows that it’s easy to scam the system when training is online by multi-tasking during the online sessions. Online training may suffice for occasional refreshers or follow-ups, but if you want to grow and sustain a culture that takes prevention of harassment and discrimination seriously, there’s no substitute for in-person, participatory, engaging training.⁶ 

What about that employee who either refuses to participate in training or behaves badly during the training? HR must be prepared to respond. We remember one particularly uncomfortable session at a professional services firm when one of the firm’s senior managers continually interrupted the trainer to offer his opinions about the case law that the trainer was citing. The HR manager in attendance quietly asked the attendee to join her outside of the classroom to discuss his behavior. 

Training Can Take Many Forms

When the word “training” is mentioned in the workplace, most people envision a large classroom setting.⁷ We’ve found that our most successful training sessions occur in seminar-like environments around a table or in a small classroom setting, where people feel more comfortable posing a question and sharing experiences. Training can also effectively occur in scheduled one-on-one sessions, especially when there’s been a particular issue with an employee. However, training must take place on an ongoing basis, not only in formal training sessions. Don’t miss the opportunity to discuss an issue whenever raising it is appropriate, whether to respond to a comment or to point out that the general tenor of a discussion should change. The challenge for legal and HR people, and particularly for GCs and the heads of HR, is not to let these informal and unstructured opportunities pass.

Let the Good Times Roll???  

Holiday parties and sales meetings are notorious breeding grounds for behaviors that cross the line. (A plaintiff’s lawyer once told us that he was everlastingly grateful for holiday parties because they were the source of most of his business.) One could elect not to attend those events to avoid having to monitor what is going on. Both of the authors of this article certainly felt tempted to do so on numerous occasions! Or, one could make the mistake that a former CEO did: setting forth supposed guidelines before the event in graphic “bro” language. We suggest that before the event -- either the GC or the HR leader (or better, both) -- should talk to the other senior managers who will attend and tell them clearly, and without equivocation, what is expected of them in terms of ensuring that the behavior of any individual, or the event itself, does not get out of hand. Further, the GC and HR leader should attend personally to support other senior managers in their efforts to prevent issues from arising. This vigilance can be one of the hardest aspects of the GC and HR roles, but one that is essential.

You can’t, of course, be everywhere at all times. For example, consider a situation⁸ when, after a sales meeting for the high performers, a group left after dinner to go to a nearby bar. They were already quite lubricated, as the meeting organizers had “limited” pre-dinner drinks to three per person, perhaps on the theory that the nice vintages served with the meal would round out the alcohol needs of the crowd. (Anybody else’s eyebrows raised yet?) When the meal was over, the group decided to patronize a high-class establishment whose entertainment included a mechanical bull, a mud-wrestling pit, and, you guessed it, a back room with “exotic” entertainment. The women in the group were “encouraged” to stand on the bar and do vodka shots before falling back into a makeshift mosh pit. When confronted with the numerous complaints and fallout from this event, one of the impromptu organizers huffily defended himself by saying that this wasn’t a work function. Really? This is one of those examples that demonstrate that training is absolutely critical, and it underscores why you must insist that training occurs for all individuals before they are permitted to attend certain events, particularly those offsite events where alcohol is involved.

It’s not that we have anything against alcohol. We have been known to enjoy an occasional small sherry in the parlor with the sewing circle. The problem is alcohol in the workplace.⁹ We understand that some companies will not allow alcohol on company property or at any company event, but they’re a minority. When we suggested to a tech client, whose company was having problems with out-of-control parties, that he not provide alcohol at their regular monthly events, he just laughed. Once again, the answer is training, customized to the organization, mandatory, and with clear, unequivocal consequences.

What about team-building events? Often, it is the HR organization itself that is promoting these exercises, and there are good reasons for well-planned and executed team building. However, these events also can be a breeding ground for harassment claims. For some reason, “fun” events that take place off-site seem to provide some employees with a sense that normal workplace behavioral constraints are suspended for the day. This presumed freedom can lead to unwanted levels of familiarity, including touching. We heard about a training session where the participants were expected to get in a circle, hands on the hips of the person in front of them, and then try to move the circle around while sitting on the lap of the person behind. What could go wrong? In another training session fraught with potential issues, the participants reached their goals by playing a game like “chicken,” in which a person had to get up on the shoulders of one of his or her teammates (which often turned out to be a woman on the shoulders of a man). There’s no question that team-building activities have their place, but we recommend that clear guidelines based on company policy be written and distributed to any group organizing a team-building event. We also suggest that HR develop a list of recommended team-building activities.

The Multicultural Workplace 

Large companies often bring people to the U.S. from overseas to work here for a few years. It is essential that these employees receive training before they arrive. It’s not surprising how many of them can get into difficulty in their first few months here – they simply don’t understand why certain behaviors (e.g., kissing while greeting; arguably off-color jokes; prying questions about marital status, age, etc.) are off-limits here, and as one manager from Europe put it, why the U.S. is “so full of prudish people.”

HR organizations in large companies must communicate clearly and consistently about who is coming from where, and when. The fact is, HR organizations have this information readily available, as they are typically responsible for securing the requisite visas or work authorizations. Before an employee leaves his home country, he must have thorough and explicit anti-harassment and discrimination training. The best practice is to follow up with the expat with additional training after he’s been here a little while because we know from experience that newly arrived expats can be overwhelmed.  

Educating the Top 

Too often, here’s what we hear from the C-suite:

 “Thanks for suggesting this, but I’m really too busy to worry about the touchy-feely stuff.” 

There’s no question that top management is busy, and there’s no way you’ll win by suggesting that they aren’t. Problems arise when the training is denigrated as fluff. With some top management, trying to make an argument about culture just won’t have the same potency as one that focuses on the bottom line. The HR and legal leadership must be in sync as they articulate – clearly and concisely – the business case for harassment and discrimination training. Be prepared with data about lost productivity, detriments to recruitment, and, of course, the costs of litigation.

“I go to these <insert derogatory term> trainings every year. Why do we need to talk about this more? We already have too many trainings.” 

Many companies have instituted special training sessions for the top brackets of management, in order to engage them and to deal with their particular concerns and issues. This is a reasonable idea; however, these individuals should also participate in at least one harassment and discrimination training annually because, as we mentioned above, setting an example throughout the company is so critical. 

“It doesn’t matter what we do, ‘these people’ who bring claims are just out for the money.”

 In our many years of experience, we can think of only one example where an employee brought a completely baseless and spurious sexual harassment claim. There have been numerous polls and articles about the ubiquity of workplace harassment.¹⁰ Does this mean that, when an actual claim arises, companies should just sigh, shrug, and take out their checkbooks? Absolutely not. What we’ve seen is that most claimants simply want the offensive behavior to stop. They want to be allowed to get on with their work and their lives. This means that we must be vigilant about the visibility and effectiveness of the training that we offer and that we must think carefully about how we respond to a claim when one (inevitably) appears.

Responding to a Claim

Envision a scenario where you’re the GC or the HR head, and a woman appears in your office, visibly upset and complaining about an unwanted advance. As we mentioned at the beginning, there are many good articles on how to appropriately investigate a claim. Our focus here is on a few practical suggestions.

So, you’re in your office with a potential plaintiff. What’s your first thought? What’s the first thing that occurs to you?

Here are some likely alternatives:

• Is this complaint real? 
• What is our potential liability here?
• I need to begin taking notes so that I have a record of what’s being said.
• (If the claim is in relation to a high performer or senior person) How will I tell my boss? How might the potential loss of a high performer affect the bottom line?

Step back and look at this scenario from the complainant’s perspective. Remember, she’s already upset. It took courage to walk into your office and raise the issue. What will it look like, to her, if you appear (1) skeptical, (2) distracted, (3) defensive, and/or (4) worried?

The fact is, you are a smart, well-trained person, which is why you’re in the position that you are now, and you can multitask. When you receive a complaint, it’s certainly appropriate to think about liability and the processes that lie ahead. However, you don’t have to check your humanity at the door. How you FIRST respond to the complainant will set the tone for the whole affair.

Try putting yourself in the complainant’s shoes and exercise a bit of kindness. What we’ve found in our many years in the GC and HR head roles, is that while complainants may be very convinced about their perceptions about the complained-about behavior, what they generally want is simply for that behavior to stop.

You don’t have to make admissions or cast aspersions. If you can give the complainant the comfort of knowing that she is being carefully listened to, that you take her seriously, and that disrespectful behavior has no place in your work environment, you’ll have done everyone within the organization a great service.