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. But even if six months down the line some arbitrator orders a sexual harasser back to work with back pay, the word will still be out that you don't mess around with sexual harassment. People will say I told you so, but they'll watch their step anyway.

All this also means that heads of Human Resources need to give some thought to the person they will put in charge of investigating sexual harassment complaints and recommending appropriate discipline. You need someone tough, and someone who believes that there is no room for sexual harassment in the company.

4. The union won't help. I'm all for unions, and I represent unions, but I must say they are all but useless in controlling sexual harassment. Most sexual harassment complaints these days involve coworkers complaining about coworkers. Unions find this

5 kind of thing -- one member accusing another member of misconduct -- distasteful and awkward to deal with. Their reason for being is representing their members against management, not representing members against members. They talk a good game about helping to stamp out sexual harassment, but in the crunch they go to bat for members accused of harassment, just as they go to bat for members accused of other misbehavior.

Such going to bat is part of what a good union should do.

Another thing to watch out for is that unions try in bargaining negotiations to get as much control and influence as they can over the process of investigating and disposing of sexual harassment complaints. For example, most unions want the collective-bargaining grievance procedure declared to be the sole avenue for raising a complaint of sexual harassment, just as it is the sole avenue for resolving most other work-related complaints.

Most unions hate special nonunion appeal routes to Human Resources, which is typical of most sexual harassment policies. They put pressure during bargaining to get rid of such routes. If you are serious about controlling sexual harassment, you should resist this kind of pressure. There needs to be a clear nonunion route for an employee to complain of sexual harassment against a coworker.

5. Give your employees some specific sexual harassment training, regardless of the details. Training employees on the subject of sexual harassment has become big business. I've seen many different approaches to sexual harassment training, but I find it hard to get too caught up in the details. What matters most is that the employees get some sort of training in this area, that its importance be emphasized by management, and that it be specific sexual harassment training, not just ten minutes devoted to sexual harassment in a session dealing with lots of other subjects. It's also important to keep a record of who got the training and when.

The subject of what to include in sexual harassment training is too broad for me to spend much time on, but I have a few suggestions from watching training go wrong. First,

6 watch out that the training classes don't become a joke. Sex is titillating, and there is a tendency in training sessions with men and women present to make a joke out of the whole thing. In one case I handled, men were having an uproarious time with the examples of sexual harassment given by the instructor. This was good for yuks at the time, but many women present didn't like it. They concluded in a hurry that the sexual harassment policy was just window dressing, and they threw the merriment back in the company's face when the lawsuit came. So training needs to be kept on the somber side, and the message needs to be clear that we fire people around here who get caught sexually harassing others.

Second, make sure there isn't the slightest doubt or ambiguity about the complaint procedure -- who they go see when someone is bothering them. Tell them time and again that they must complain and that you can't help them if they don't. Give them alternative routes to complain. Make sure that one of those routes is to complain to their direct supervisor (see below). Tell them to scream bloody murder if they don't get satisfaction with one particular route. Emphasize that controlling sexual harassment is a joint enterprise and that you'll do your part if they do theirs.

Third, don't let your training get legalistic. Nobody will understand a presentation keyed to the details of sexual harassment law. That law is complicated and sometimes seems like gibberish even to lawyers. Most sexual harassment policies do and should forbid conduct that is not actionable in court.

6. Everything depends on the first-line supervisor. Your best defense against serious sex-harassment claims isn't the way the Human Relations department responds to complaints, or the way your sexual harassment policy is worded, or the details of how your training is conducted. The best defense is for your first-line supervisors to keep their eyes and ears open for sexual harassment trouble, and to deal with it early and effectively when it comes to their attention. Clueless or insensitive supervisors can cost an employer millions of dollars.

7 Training your supervisors to deal with sexual harassment is therefore every bit as important as training nonsupervisory employees. Again, the details aren't as important as the overall thrust. In one form or another, supervisors have to grasp some basic points.

First, they need to understand that any time men and women work together, sexual harassment is something to worry about. This is so even where the men and women appear to be getting along. It is particularly so where there is romance going on -- romances gone sour are a fertile source of later sexual harassment claims, both founded and unfounded.

Second, supervisors need to be told to pay attention to decorum within the group under their supervision. While not everyone agrees, I think widespread talk about sex, routine telling of dirty jokes, and direct sexual teasing of the opposite sex are signs of trouble, even if people in the group appear (or pretend) to enjoy it. As I've said above, whatever you may personally think of this kind of behavior, one person's comedy is another person's harassment. In my view, your supervisors should be instructed to watch for this kind of highly charged sex talk and to tell their subordinates to knock it off when they hear it. This will produce intense grumbling from a significant minority of employees about Big

Brother, particularly in blue collar jobs where many people are bored to death and use sex talk to liven up the day. But in my experience the majority of employees, especially women, dislike raunchy talk in the workplace. They will actually appreciate supervisors who enforce some decent degree of decorum. And doing so is a good way to keep more serious sexual harassment trouble from getting started.

Third, supervisors need to be told that when someone makes a complaint, it needs to be taken seriously, documented, and investigated, even if the complainant seems thin- skinned and even if the complainant seems tentative and timid. A classic situation is the woman who comes to a supervisor complaining of rough treatment and the supervisor replies, "You have to toughen up," or "Ignore him and he'll cut it out," or even worse,

"Come on, this is a factory."

8 Fourth, supervisors need to be ready to go to men they suspect of pushing the envelope with female employees and tell them their jobs are at risk if they keep it up. It doesn't matter if your sexual harassment policy designates, as many do, the Human

Resources Department as the recipient of complaints. Most employees hate to take someone "upstairs", and look to their immediate bosses to straighten out trouble with coworkers.

Fifth, you need to keep an eye out for the male supervisor who is too close to his male supervisees and who is therefore unsympathetic to women who complain of misbehavior from such people.

Sixth, you need to give supervisors the feeling that if sexual harassment is going on in their group, they are at risk of being held responsible for not detecting it and putting a stop to it. When an investigation reveals that actual sexual harassment occurred, it ought to consider not only what punishment to impose on the harasser, but whether the supervisor deserves discipline or criticism for letting the situation develop.

7. Don't promise a perfect workplace. I've seen companies who have got into trouble with sexual harassment and have responded by spending millions on public relations campaigns within the company promising a "model workplace," or other such buzzwords.

Most employees submitted to this sort of PR think it is BS. They're right.

Controlling sexual harassment involves serious tradeoffs. In order to control quid quo pro sexual harassment, employers have had to adopt policies that undoubtedly discourage legitimate -- or even illegitimate -- consensual romances between supervisors and subordinates. (My father married my mother, his secretary, after a law firm office romance that might have been forbidden under many current sexual harassment policies.)

In order to head off hostile-work-environment complaints, employers find it necessary to crack down on sexual joking and banter that large numbers of employees, men and women, enjoy and that can make it easier to get through the day. In order to respond effectively to

9 real sexual harassment, employers have adopted policies that lead to unfounded complaints, complaints that can poison a working environment.

Mature employees, whether men or women, sense these tradeoffs. They understand, if only intuitively, that we have paid a price for controlling sexual harassment and for bringing complaints of harassment into the litigation system. If you ask them to think about it, most such employees, particularly women, will tell you that the price is worth paying.

Nobody wants to go back to the days when the typical woman could expect creepy behavior at some point from some male boss. But all the same, you won't impress these employees by talking about model workplaces, and you don't need to.

By the same token, you don't need to apologize for straightforward, sometimes uptight-seeming policies that control sexual harassment. If those policies work, sexual harassment will be far down on most of your employees' personal problem lists. You will always have employees who think that such policies treat them like children. But what's the alternative?

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