As more employees return to physical workplaces, HR managers may encounter more sexual harassment issues. To prevent such problems, consider these three commonsense tips that I derived from my 25-year career as a labor and employment law attorney, as well as my time spent as a workplace coach and consultant. The goal of following these tips isn't simply to avoid litigation, but to create and maintain physically and psychologically safe workplaces.
Tip 1: Beware the Slippery Slope
Sexual predators exist. However, in my experience, the vast majority of employees accused of harassment aren't predators or people seeking to harass others. In fact, they tend to think the opposite. They feel that what they're doing isn't unwelcome because they don't intend to cause any problems. They believe they're bringing light, joy and happiness into the workplace. You'll often hear comments from these people such as, "I didn't mean anything by it!" or "It was just a little joke."
I liken such people to travelers on a slippery slope. They take an initial step over the line, often a relatively small one. It might be an off-color comment or a compliment that goes too far. No one says "No" or holds up an obvious stop sign. So they take another step, and another and another. Unbeknownst to them, the slope has changed. They're now sliding downhill, rapidly increasing speed. Suddenly the cliff appears, and they can't stop in time to avoid falling off it. Crash!
Hence my most powerful tip for HR: Urge your employees to avoid that first step! Tell them not to assume their comments are welcome or that silence or a lack of response or objection is agreement or acquiescence. Urge them to stay off the slope entirely, meaning no sexual behavior of any kind.
A good rule of thumb is, if it has to do with sexual conduct in any way, it doesn't belong in the workplace. Period. One large employer calls this the "Mother Standard." It teaches employees that if you wouldn't say this kind of thing in front of your mother, you probably shouldn't be saying it to a co-worker!
This advice applies especially to people in positions of power within organizations. With power comes blind spots. Employees will treat the behavior as acceptable only because of the position the person holds.
I recall a conversation with a CEO who bragged to me that at a company event, "two young, good-looking marketing assistants said, 'Jim, you're kind of sexy for an old guy.' "
"Jim," I replied, "they told you a half-truth."
On another occasion, a friend told me how several years after he retired as CEO, he went back to work for the company in a part-time consulting capacity.
"I don't get it," he said. "They always used to laugh at my jokes. Now they don't."
"Bill," I replied, "that tells me one thing."
"What's that?" he asked.
"Your jokes weren't funny 10 years ago."
Organizationally, the higher up someone is, the more likely it is that he or she has a blind spot about what is welcome or unwelcome. As a result, this person is more likely to take a trip on the sexual harassment slippery slope—and more likely to take a great fall.
[Viewpoint: It's Time to Replace Conventional Sexual Harassment Training]
Tip 2: Don't Deter Self-Help
In my experience, a substantial majority of sexual harassment problems could have been avoided if the person who was offended gave an early unequivocal message, such as, "This behavior makes me uncomfortable. Please stop."
Yet in pretty much every major harassment problem I've dealt with, such self-help was not attempted. Whether it's a natural reluctance to confront others, a fear of retaliation or a tendency toward rationalization ("Maybe he'll get the hint and stop on his own"), opportunities often are lost to stop minor problems before they become major.
To some degree, I think conventional anti-harassment policies and training programs contribute to this problem. Wittingly or unwittingly, they discourage people from directly confronting the offender.
"It's not legally required for a victim to tell a harasser to stop," employees are told. That's true; however, repeated exposure to zero-tolerance language, reporting options, harsh consequences for offenders and legalistic responses sends a message to employees that putting a stop to offensive sexual behavior isn't going to be easy— and may be downright scary.
"Perhaps I should just try to endure it as best I can. After all, I have bills to pay and can't afford to lose my job," the employee thinks.
To be sure, offering reporting options or other elements of conventional policies is not wrong. But policies and training should include a discussion of self-help: when it can be effective, how to do it and why it's often the best first step. Providing training to employees on how to have a difficult or challenging conversation about sexual harassment will help in other situations too, so there is a win-win benefit all around. The key is to ensure that the message also says self-help is not required and makes it clear that if self-help doesn't work, reporting options should be invoked. Acquiescence is never appropriate.
Tip 3: Don't Get Overly Legalistic with Internal Investigations
Too often when an internal harassment problem arises, the investigator takes an overly technical and legalistic approach, which tends to ratchet up tension and fear. In our quest to reduce liability for the organization, we can raise anxiety for everyone involved. The result gets in the way of what should be the overall objective: preserving or restoring workplace physical and psychological safety.
Internal investigations should never be about demonstrating one's legal acumen. They should be about solving problems, including seeking potential win-win solutions.
I also urge internal investigators not to get hung up on the words "sexual harassment." That term is a legal conclusion. At the internal investigation stage, it's neither necessary nor even productive to use it.
What you want to do is simple and straightforward: Find out what likely occurred (the behavior) and how this behavior impacted others, then assess what the best solution would be to restore the workplace, avoid claims and maintain a healthy work environment moving forward.
Even if you're positive that the legal harassment test is met, you don't need to say so. Point out the behavior and its impact, cite the relevant organizational policies or values that were violated and make your recommendation as to what the appropriate corrective action(s) should be. Leave the law to the litigators.
Law and common sense occasionally overlap, though sometimes they don't. If you apply these three tips, I predict you'll find a good blend of the two.
Jathan Janove is a former state bar "Employment Law Attorney of the Year," author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins 2017), Master Coach & Practice Leader with Marshall Goldsmith Stakeholder Centered CoachingÒ, and faculty member, University of California San Diego Masters Series.