Do ‘Flexible’ Workplaces Lead to More Sexual Harassment?

Startups and creative enterprises may be too loose for their own good

By Susan Milligan Apr 7, 2015
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Hoodies and flip-flops. Ping-pong tables. Workdays that bleed into evenings, after-hours e-mails and weekends with employees socializing.

All of these can be part of the more casual, “flexible” work environments so prized by startups and creative enterprises. But do such environments blur the lines of appropriate behavior in a workplace—including what constitutes sexual harassment?

Bigger and more buttoned-down companies have HR departments that issue written guidelines and require training to prevent sexual harassment, and that also serve as a place employees can go if they have complaints.

But in smaller firms that pride themselves on rejecting traditional corporate culture, a free-for-all mentality can make sexual harassment harder to identify or control, said David Lewis, president and CEO of the HR outsourcing and consulting firm OperationsInc in Norwalk, Conn.

“As companies get larger, they institute more rigid and clearly defined policies that make it easier to see where the line is so you don’t cross it,” Lewis said. But in smaller, less-traditional companies with no in-house HR function, “it’s sort of left to social mores and what is considered ‘PC’ [politically correct] behavior, which is a very subjective standard for many businesses, especially for those where they wear jeans and work flexibly,” said Lewis, adding that he deals with such matters on a monthly basis with his clients.

Sexual harassment is always a tricky thing to identify, and it’s certainly not limited to nontraditional workplaces, experts note. The U.S. Equal Employment Opportunity Commission (EEOC), which enforces federal anti-harassment laws, defines sexual harassment as behavior which “explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile or offensive work environment.” But the agency also stipulates that it looks at each complaint on a case-by-case basis, considering both the circumstances and the context in which the alleged harassment occurred.

“Our view is that you really can’t define it. Even if you look at the EEOC regulations and [federal laws] defining discrimination and harassment, it comes down to the fact that harassment is almost always in the eye of the beholder,” said Laura Kerekes, SPHR, who leads the HR services delivery team at the consulting firm 

ThinkHR in Pleasanton, Calif. That assessment is backed up by a recent poll conducted for Cosmopolitan magazine. When asked if they’d been sexually harassed at work, 16 percent of women who initially said “no” changed their answers to “yes” after being asked if they’d experienced “sexually explicit or sexist remarks” at work. One in 3 women ages 18-34 said they’d been sexually harassed at work, and one-fourth of those cited offensive texts or e-mails.

Mark Spring, a labor and employment lawyer specializing in workplace sexual harassment prevention and litigation, cited two drivers of sexual harassment complaints. One is a casual work environment; the second is age.

“People tend to let their guard down more when there’s a looser environment,” said Spring, a partner with Carothers DiSante & Freudenberger LLP in Sacramento, Calif. And “there’s a direct correlation,” based on anecdotal evidence, that potentially harassing behavior occurs more among 20- to 30-year-olds, Spring added. Part of the reason for that, he said, is that younger people may be more likely to socialize with co-workers after hours, and may fail to draw the line between professional and social relationships.

The issue can be even tougher to deal with when a company has no in-house HR department to set standards or deal with complaints. Some executives foolishly try to avoid the issue by hiring only people who seem open to a relatively ribald work environment, Lewis said—but those same companies may later find themselves having to defend against harassment complaints.

Experts recommend setting the tone early and from the top, making it clear what constitutes unacceptable behavior. When there is no in-house HR department, management should enlist “key thought leaders” to set the culture, Kerekes said. And while only three states (Maine, California and Connecticut) require sexual harassment prevention training for businesses of a certain size, all companies should consider implementing such training, since firms can still be sued under federal law for noncompliance, added Beth Zoller, legal editor at the consulting firm XpertHR.

Even an unsuccessful lawsuit can be damaging to a company—especially for companies whose primary resource is intellectual property, said former EEOC trial attorney Steve Paskoff, CEO of workplace and ethics training company ELI Inc. Clients might be reluctant to do business with a firm distracted by a sexual harassment lawsuit, he said. And having a “flexible” work environment is no excuse, he added.

“There’s no rule that says that to be a successful entrepreneurial startup, you have to act like a bunch of high school sophomores,” Paskoff said.

Susan Milligan is a freelance writer based in Washington, D.C.

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