Sexual harassment has dominated headlines for close to a year, and the efforts to publicize and address the issue still seem to be gaining momentum. While many of the cases in the news involve high-profile Hollywood moguls and TV personalities, the #MeToo movement has had an impact on workplaces everywhere, with women’s (and men’s) stories about harassment and abuse being taken more seriously than ever.
That said, an unfortunate consequence of all the media coverage is that human resource professionals have been widely portrayed as either complicit or ineffective when attempting to address sexual harassment. Those who work in HR have been criticized for failing to support harassment-free work environments, for not properly investigating complaints and for participating in cover-ups such as cash settlements to victims for signing nondisclosure agreements.
While there are surely negative examples that HR practitioners can learn from, many of which have been featured prominently in the media, what’s missing from the dialogue are positive case studies, which can be equally instructive. That’s why this article will focus on instances when HR professionals did the right thing—morally, ethically and legally—to protect both their workers and their employers. This happens every day but often doesn’t make the evening news. For confidentiality reasons, all but one of these stories lack identifying information, and some details have been modified. For example, names have been changed for all individuals identified by first name only.
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A Tale of Two Unemployment Proceedings
Irene, an administrative assistant at an employee leasing company, quit her job without offering any explanation and subsequently applied for unemployment benefits. Some executives were tempted to oppose her application on the grounds that Irene had left voluntarily and without making any formal complaints. But Cheryl, the HR director, wanted to investigate further before making any decisions.
So Cheryl called Irene and told her she wanted to learn more about the reasons behind her abrupt departure. In doing so, Cheryl discovered that Irene had been subjected to offensive sexual behavior by two male employees at the company. She had never complained because she felt threatened.
After investigating further, Cheryl informed Irene that the company would no longer oppose the unemployment claim and thanked her for sharing the information. Then she worked with the offending employees’ managers to ensure that the two workers received written reprimands and warnings.
This story provides a stark contrast to a similar case at another organization, when an ex-employee filed for unemployment after quitting, stating that she had been subjected to sexual harassment. In that instance, the HR and executive teams disputed the former worker’s claim without ever speaking with her. They asserted that because the employee had never complained to HR or management during the time she worked at the company, she had waived her right to unemployment. After all, the company had robust anti-harassment policies and training programs in place.
The woman contested the company’s denial of the benefit, and an administrative law judge found in her favor and awarded her unemployment. But it didn’t stop there. The ex-employee then went to the U.S. Equal Employment Opportunity Commission (EEOC), which found cause to believe that she and others had been victims of sexual harassment. After the agency threatened to sue the employer, the company settled the claim, paying much more than the unemployment benefits would have cost.
By contrast, in the first case, Irene didn’t hire an attorney or bring forward any claims because of Cheryl’s deft handling of the case. In fact, when another employee subsequently filed a harassment claim with the EEOC, Irene testified in her former employer’s favor. Her statement was instrumental in defeating the claim.
Lesson Learned: Cheryl did not allow herself to get caught up in a legal debate about whether Irene had made a timely complaint. Instead, she focused on getting to the bottom of what had happened. She found the problem and corrected it. Doing the right thing also helped to protect the company.
Keep in mind, though, that it’s always a good idea to talk to your employment attorney before following up in situations like these. He or she can let you know if there could be any potential complications you haven’t thought about.
The Road to Respect
For many years, 1-800 Contacts—a large contact lens retailer—had a conventional anti-harassment policy. It provided the legal definitions of sexual and other types of harassment along with a series of prohibitions, reporting options and consequences for policy violations.
This year, however, the company’s HR department, led by Chief People Officer Dave Walker with input from employment attorney Michael Patrick O’Brien and me, decided to take a different tack. “We wanted to get away from a legalistic, deterrence-based approach to one focused on the kind of environment we want every employee to experience,” Walker says.
So he and his team rolled out a written commitment based on dignity and professionalism. Here’s how it begins:
Instead of focusing solely on legal definitions such as welcomeness, pervasiveness or severity, which are covered in other company policies, the 1-800 Contacts commitment emphasizes respect. Here are two examples it includes regarding employee expectations:
“The question is not simply whether certain behavior constitutes harassment,” Walker says. “It’s whether that behavior supports an environment where everyone feels safe, secure and respected.”
It’s an approach that doesn’t wade into arguments over whether sexual behavior was or wasn’t welcome. “Any behavior of a sexual nature in the workplace falls short of our expected behavioral standard,” Walker says.
1-800 Contacts CEO John Graham puts it this way: “It’s not a matter of compliance as much as it’s a matter of core values.”
The company’s policy also takes into account the role of employees who witness the inappropriate behavior of others. The EEOC recently focused on the importance of these so-called bystanders in remedying harassment. The team at 1-800 Contacts takes this direction to heart with the following policy provision:
If someone confides in you or you witness offensive conduct toward others, please alert People Dept. or management, or encourage the victim to do so. Help us uncover and resolve problems to ensure a good working environment for all.
“We encourage action from victims who might otherwise be reluctant to report, as well as bystanders who might observe but not be the object of offensive behavior,” Walker says.
Lesson Learned: When drafting policies, most HR professionals start with compliance. They may or may not also cover the company’s culture or values. However, as this example from 1-800 Contacts shows, you can begin with core values and find your way to legal matters. Indeed, in my experience, a commitment to dignity and mutual respect provides the best path to compliance and claim prevention.
That doesn’t mean ignoring legal issues. Walker and his team sought input from their employment attorney and made modifications to ensure that they covered all factors relevant to the law. The bottom line is that it’s not about compliance versus core values: It’s about being committed to both.
Walker’s comment about not arguing over whether sexual behavior was welcome illustrates another point: When conducting an internal investigation, HR never has to decide whether the behavior meets the legal test of sexual harassment.
I once defended a harassment case in which I argued that, even if true, the plaintiff’s allegations didn’t meet the evidentiary threshold of a legally hostile environment. But the judge rejected my argument on the grounds that my client’s HR department had concluded that the behavior constituted “sexual harassment” under its own policies. My client would have been much better off simply addressing the behavior without trying to characterize it legally.
Gender Bias in Tech
In 2016, the HR leaders of a Midwest-based global manufacturing company were concerned about the paucity of women in IT. They had taken some steps to recruit more women and people of color into the department but were still falling short on their recruitment goals.
More troubling was the fact that they were not seeing any progress in terms of retention and career advancement in tech. Only one woman was in senior management, along with a few in high-level management positions—but all of them were near retirement, and there were no other women who were ready to step into those roles.
Susan, the HR director, noticed that workers had commented during performance evaluations and exit interviews about how disappointed they were that there were so few women in positions of power.
While no one had lodged a formal complaint, she decided to conduct a climate survey focusing on the “I” part of D&I (diversity and inclusion).
The results showed that women felt unable to move up for a variety of reasons, some systemic and some based on comments from men. For example, the women reported hearing remarks that reflected gender-based stereotypes, such as “I didn’t think you’d be interested in moving for a promotion since you have small children” and “You’re too emotional.” They also received feedback about their appearance that made them feel uncomfortable: “You look better in skirts,” or “Try wearing your hair long; that’s much more attractive to men.”
The women who shared these comments didn’t classify them as sexual harassment, but they believed that training on unconscious bias was warranted.
Susan agreed and led the company to take affirmative steps, including:
Changing its practices on promotions by ensuring that women were on interview committees to draft relevant and fair questions, participate in interviews, and help make promotion decisions.
Providing training on how implicit bias affects decision-making. For example, many reports were about men assuming that women with small children would be unwilling to make a move even though they had no similar concerns about men who had kids.
Implementing a robust mentorship program that included both male and female leaders as mentors, and engaging in succession planning to identify high-performing talent from both genders and provide cross-training.
As a result of these actions, the company saw an increase in the number of entry-level women coming into the IT department and a dramatic rise in the selection of women into higher-level positions.
Lesson Learned: Being proactive was key here. Many company leaders don’t address gender discrimination unless there is a formal complaint of wrongdoing. But Susan took the time to listen to what employees were saying and then gather the necessary data to find out more.
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Doing the Right Thing as Good Business
Jon, the star salesman at a large equipment distributor, had been promoted to sales manager. Brash, confident and aggressive, he produced impressive results. However, his colleagues complained about his bullying and other offensive behavior. For example, he’d often make comments about women’s bodies and tell explicit stories and jokes. Or he would unfavorably compare women’s abilities to men’s or make comments that women were better suited to the home than the workplace.
In response to frequent employee complaints, Shanice, the HR director, sent Jon to anti-harassment classes and coaching sessions, which led to only temporary improvement.
Shanice met with the company’s CEO and VP of sales. She made a well-reasoned case that enough was enough. The spots were not changing on this leopard, and it was time to let him go.
The VP of sales immediately pushed back: “But he’s our best salesperson! If we lose him, we’re going to be in big trouble making our numbers!”
Shanice replied, “I don’t think you’re taking into account the negative impact he has on the department. There’s tremendous upside when employees work in a positive, professional environment.”
Further discussion ensued. The CEO ultimately accepted Shanice’s reasoning, and Jon’s employment was terminated.
Sure enough, to the sales VP’s happy surprise, Shanice’s prediction turned out to be true. Ousting Jon produced a surge in morale, engagement, retention and productivity that more than offset the loss of his sales. In the year following his discharge, total sales actually increased.
Lesson Learned: When misbehaving employees excel at their core job function, leaders are often reluctant to part ways with them. However, when employment is terminated, leaders typically discover that the hidden cost of putting up with bad behavior was substantial. Hostile work environments can not only violate the law, they minimize human potential. Bullying-free, harassment-free and respect-based environments do the opposite.
He Said/She Said
Ellen, a janitorial worker at a large manufacturing company, complained to HR that Doug, her supervisor on the swing shift, had been making unwanted sexual advances toward her, patting her on the butt and giving her hugs that made her uncomfortable.
Doug adamantly denied that he had engaged in such behavior and claimed that Ellen’s allegations were “cooked up” to avoid being scrutinized over her own poor job performance.
In investigating the complaint, Sue, the HR director, wasn’t able to identify any witnesses who could support or refute Ellen’s allegations. But rather than writing the case off as inconclusive, Sue kept digging. She discovered evidence in Doug’s personnel file that he had been reprimanded two years earlier for making comments of a sexual nature to another female employee. Further, Sue combed through Ellen’s previous performance reviews and found that her positive ratings contradicted Doug’s assertion that Ellen had a track record of poor performance.
Sue’s conclusion: Ellen’s account was credible, while there was reason to believe that Doug was not being truthful. As a result, she determined that Doug’s colleagues could no longer trust him, and the company ended his employment.
Lesson Learned: Sue resisted the temptation to prematurely conclude an investigation at a “he said/she said” impasse. Rather, she continued to assess the evidence, asking herself which account was more likely to be true. Sue peeled away the layers of the onion until she had sufficient basis to reach a conclusion about the probable truth and then acted on it.
The standard of proof for investigations like this is not “beyond a reasonable doubt,” as it is in criminal cases. Rather, the standard is “preponderance of the evidence”: When the credible evidence is weighed, which conclusion is more than likely to be true?
Jathan Janove, a former employment attorney in Portland, Ore., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (Amacom, 2017). He was named one of the Top 100 Leadership Speakers for 2018 by Inc. magazine.