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SEX and the SINGLE HR OFFICIAL Plain Talk About Minimizing SEX AND THE SINGLE HR OFFICIAL Plain Talk About Minimizing Trouble With Sexual Harassment George Galland Miner, Barnhill & Galland, P.C. It will not have escaped your notice that lots of consultants and experts out there will accept chunks of your company's or agency's money in order to write your sexual harassment policy, conduct your sexual harassment training, put on your diversity seminars, and so forth. I don't want to discourage you from throwing money at these citizens, but I want to approach this problem a little differently. My perspective has been gained as an employment discrimination lawyer, representing both plaintiffs and defendants. I'm a sexually active lawyer, meaning I have an active practice in sexual harassment cases. I represented the plaintiffs in what I think was the biggest private sexual harassment case on record so far, and I'm involved as the "neutral monitor" for an EEOC consent decree that settled the EEOC's biggest sexual harassment case so far. This is a hard area in which to see the forest for the trees, particularly because lots of consultants and experts are in the business of worrying about the latter and not seeing the former. But for what they are worth, here are seven impressionistic generalizations that might help human resource people and company lawyers keep the big picture in mind and stay out of serious trouble. 1. Don't trust your personal version of "common sense." Everyone agrees that quid pro quo sexual harassment -- sleep with me or you don't get promoted -- is unacceptable. This was, in my opinion, the grievance that produced the explosion of sexual harassment law. Astounding numbers of women in the workplace used to get propositioned by their bosses under an implicit or explicit threat of what would happen if they said no. I have no reliable statistics, and neither does anyone else, but in my opinion, the big benefit from making sexual harassment actionable under the employment discrimination laws has been the curtailment of this vicious behavior. This comfortable moral certainty disappears, however, once you get beyond quid pro quo harassment into the murk of "hostile work environment." In this field, there is no broad agreement in our society on what is harassment and what isn't. The courts bravely talk about "objectively offensive" behavior, as if there were a national consensus that juries could look to, but there is no such thing. This is particularly true as to coworker-on-coworker harassment that consists of talking dirty and making sexual innuendos -- conduct that figures in a high percentage of all sexual harassment complaints in the workplace and in a high percentage of reported litigation. Many women enjoy and engage in sexual banter, often raunchy banter, with male coworkers. Other women (and some men) consider it to be intolerable sexual harassment. Because of this lack of consensus, human resources officials and lawyers can be misled by their "common sense" -- i.e., their own personal view as to what kind of conduct and talk on the job between coworkers is "acceptable" and what isn't. It is a common refrain from the defense in sexual harassment cases (and from conservative judges who love to throw these cases out) that the language the plaintiff is complaining about was no worse than what we hear every night on prime-time TV. This may well be true, but it doesn't make sense to act on this belief. Your best stance is to be several degrees more prudish than you really are. Assume that when men start talking in sexual terms to their female coworkers, some of these women will find it offensive and that trouble may well ensue. (To be politically correct, make the same assumption about women talking this way to men.) More importantly, you should assume that if this kind of talk becomes endemic, it will encourage other kinds of behavior 2 that could eventually lead to really serious sexual harassment claims. You should also remember that juries are usually humorless -- no judge ever instructed a jury to laugh something off -- so that if litigation develops and the case goes to trial, the jury may not think that such talk was harmless. 2. Take people seriously who complain about sexual harassment even if they are weird. The woman (I should say "person," but let's face it: 99.5% of all the serious claims are from women) who suffers seriously from sexual harassment is often not a typical woman. These days, women who have it together are usually able to handle "hostile work environment" behavior. When some guy starts in on them, they tell him to knock it off, and typically he does. Many HR officials and defense lawyers think that all women ought to behave this way. This is a mistake, because not all do. Some women for one reason or another find it difficult or impossible to take even the simplest steps to defend themselves from sexual harassers. Instead of speaking up, or going to a supervisor to complain, they retreat into themselves, hoping the guy will go elsewhere. I'm no psychologist and I don't think it is useful to generalize about the causes of such passivity, although you hear lots of pop theories about it. Whatever the causes, men who are inclined to this kind of behavior look for women like this, because they sense that such women won't turn them in. When they find such women, they can get away with merciless harassment over an amazingly long time. When such a situation finally comes to the company's attention and the HR rep or lawyer gets around to interviewing the woman in question, she can seem like a strange bird. You wonder how her story could possibly be true. If this kind of behavior had really occurred, why would she have put up with it? Why wouldn't she have complained? The urge to disbelieve is all the stronger in that false accusations are not uncommon in this field; sex and lying are highly correlated, as a statistician would say. Moreover, every HR 3 person and every seasoned employment discrimination lawyer is familiar with the oversensitive employee who thinks that everything is sexual harassment. But it is a catastrophic mistake to blow off complaints from women just because they seem weird or their stories seem incredible. Sexual harassment law didn't develop on the assumption that any reasonable female employee can handle hostile or creepy behavior from male colleagues on her own. And whatever the current crop of federal judges may say, juries don't buy the orthodoxy that distinguishes between "the company" and its nonsupervisory employees. Juries are much better intuitive psychologists than judges (who usually stink at psychology, if only because they are told every day how great they are by lawyers who curry favor with them). Juries understand the fact that some women are paralyzed by sexual harassment. They don't think that the harassment should ever have started, and they don't give a damn whether "higher management" knew or should have known about it. 3. One firing is worth a thousand words. If you take nothing else away from this little sermon, take this advice: when you catch a guy sexually harassing someone else, fire him, unless the offense is truly small. Even then, discipline him as severely as you can. This policy won't make you popular. The guy's buddies (almost always he will have buddies) will be furious and will tell everyone far and wide that you overreacted outrageously. The union, if there is one, may take you to arbitration, and might even win. (See my next point.) Even the victim of the harassment may not love you; she may well think that firing was too harsh a penalty and will fear ostracism on the job from the guy's friends, male and female. But while firing won't make you popular, it will work wonders in preventing further sexual harassment. In my experience, the companies that got into big trouble are those who reacted weakly in the face of proven sexual harassment situations. By the time they got around to realizing the extent of the problem they had, and started firing people, they had a 4 huge legal mess on their hands for which they paid dearly. Firing works. Sexual harassers, especially in blue-collar workplaces, tend to be swaggering, out-of-control types with big testosterone problems. They don't appreciate nuanced threats. If they see that others caught at sexual harassment are given only mild punishment, they are willing to take the risk of such punishment. But not many of them will take the risk of getting fired. While we're on the subject, if the employee in question is a union member or has civil service rights, don't agonize too much over whether he might win if he appeals his firing. This is a mistake all too commonly made in unionized work environments. Many human resources officials and lawyers deal with a union all the time on virtually all issues. They tend to get fixated on the question of whether they can make a discharge stick in the face of an arbitration or a civil service hearing. I'm not recommending recklessness, or sloppy investigation. You need to be fair, and you should feel you have a reasonable shot at making a discharge stick. But if you do, don't reduce the punishment just because you might lose in a hearing. Remember that somewhere there is always an arbitrator who will reverse any discharge, no matter how outrageous the offense -- just look at Latrell Sprewell, the NBA star who was fired for choking his coach but won his arbitration.
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