Category Archives: Harassment and Discrimination

Workplace Gossip Policies Revisited

Three years ago, I wrote a post asking whether it was a good idea for employers to institute workplace anti-gossip policies.  As everyone knows, gossip in the workplace is ubiquitous and inevitable — and can be devastating to an organization and individuals if it goes beyond a certain point. I left the issue open, but such policies do raise a number of questions.

One, for example, is how to define and regulate “gossip.” One person’s gossip, after all, may be another person’s discussion of problematic personal interactions or work conditions (see below). Another question is how to monitor gossip: no wants to encourage a tattle tale, “Mommy, he was mean to me!” culture.  In addition, many believe that excessive gossip reflects other problems in the workplace such as inadequate communication or perceived inequities — and management’s job is to tackle those problems, not the negative effects.

Recently, moreover, things have occurred in the legal landscape that make this issue more complicated. The National Labor Relations Board has ruled that a range of employee communications, even by those who work in non-union workplaces, are legally protected under Section 7 of the National Labor Relations Act.  That section gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection” when such activity addresses terms and conditions of employment.

Using this law, the NLRB has ruled that employees cannot be disciplined for engaging in protected activity, including for communications about work issues on social media. It also has invalidated employee handbook provisions that suggest that an employee could be disciplined for engaging in such activity. In one case, for example, the NLRB criticized an employer’s handbook statement that employees needed to be “courteous, polite and friendly” and could not be “disrespectful” or use language that injured the image or reputation of the company.

It is beyond the scope of this blog to discuss the legal parameters of this emerging area of the law.  Suffice it to say that if several employees are talking about how cheap the boss is because they haven’t gotten raises in two years, that is likely going to be protected concerted activity regarding wages and they cannot be disciplined for this conversation.  On the other hand, if several employees are discussing what a “tramp” a co-worker is, that is likely not protected as it does not pertain to working conditions. 

So where does this leave employers who are thinking of implementing anti-gossip policies?  Proceed with caution. And when in doubt, consult a lawyer. It remains important, however, to address gossip that may rise to the level of harassment or discrimination, and more generally to address morale issues that may result from excessive gossip or badmouthing.

What are your thoughts?  ~Amy Stephson

Is Training the Right Answer?

As you might imagine, it depends.  Let’s look at a few workplace challenges and see.

Situation 1:  You’ve just learned that though there are a number of anti-harassment policies on the books at your workplace, no one really knows about them.  Is training the right answer?  Probably.  Many court cases have shown that even if you have policies, if you’ve never provided anti-harassment training to your employees, you could be held liable for any illegal harassment they perpetrate. So what do you have to do?  It doesn’t have to be difficult or complicated.  An hour or two to go over the policies, talk about the gray areas (there are many), answer questions, lay out some scenarios for folks to think about – that could be sufficient.  This is really about raising awareness and understanding.  You could do more, but this minimum will work for a start.  Do document that you provided the training, and keep a record of who attended – best done by having employees sign into the training and attest with their signature that they received a copy of the policy.

Situation 2: You’ve just had yet another complaint about one of your supervisors.  She tends to lose her temper and yell at her subordinates.  She sometimes apologizes later, but not always.  This has been going on for years – and other than this, she’s really a pretty good employee.  Is training the right answer?  Maybe.  But first, expectations need to be set by her supervisor, who needs to be clear with her that yelling at her subordinates (even if she later apologizes) is not acceptable.  Likely this has become a habit for her when she gets frustrated, so she’ll need to learn other (acceptable) ways to cope with her frustrations.  It’s unlikely that simply sending her to a communication or supervisory skills workshop will address her specific needs, but she may get tips at such a workshop that she can use.  So, if you send her, tell her you expect her to return with specific strategies to use when her employees frustrate her, instead of yelling at them.  Then, regularly monitor her to ensure she’s applying what she learned in the workshop.   Providing some individual coaching for her would actually be a better approach because a coach could help her with specific employee situations that frustrate her.

Situation 3:  Yours is, and has been, a very negative workplace.  Everyone gripes, makes snide comments, and puts their coworkers down.  Employees complain about management, the work, the customers and each other.  It’s pretty much always been like this. Good employees regularly leave for other environments that are more positive, which just leaves everyone else with more negative things to say.   Is training the right answer?  Training might be part of the right answer, but this is first and foremost a culture change issue, not a training issue.  To change how people behave in this organization, management will first need to lead a commitment process that speaks to values that promote positive behavior and good customer service.  Then they will need to set performance expectations around those values, hold themselves and their supervisors accountable for meeting those expectations, and finally hold their employees accountable for them as well.  Then, if needed, it may be appropriate to provide training for staff in how to behave to live those new positive values.

So, though we’re often tempted to fix all workplace problems by providing some training, it’s not necessarily the right (or only) answer.  As someone once said, if the only tool you have is a hammer, every problem looks like a nail.  Expand your toolbox!

Have you had a good (or not so good) experience using training to solve a workplace problem?  We’d love to hear from you!  ~Daphne Schneider

The Sexualized Workplace

Each time I think that everyone FINALLY understands what is and is not appropriate behavior in the workplace, something happens to remind me that’s just not so.

Not long ago I investigated a situation that resulted not from a complaint (as is most commonly the case) but from a concern management had about a particular work group.  As I talked with employees in that group, I discovered that nearly everyone (that is, men and women, older and younger) participated in

 • Sexual banter, off-color jokes and comments about one another’s body parts

• Light punching, grabbing and slapping butts, bumping into one another

• Sharing of stories about porn watched on-line and visits to topless bars.

I bet you’re thinking: wow – this sounds like a construction site in the 60’s! Well – it wasn’t a construction site, and my work here was recent. What’s going on? It turns out that the folks working here are all nice people. They were very willing to talk with me. By and large they just didn’t see the problem – except that a couple of them shared that they were uncomfortable when these interactions went “over the line”- wherever they thought that was. The rest of the time they thought the banter and joking simply served to make the workplace a more fun place to be.

Where was management in this? They had conducted anti-harassment training – which no one took seriously since everyone played (or appeared to play) along with the above exchanges. Management was shocked when I told them what I found. We discussed what to do, and I suggested the following:

• Establish clear workplace expectations: even if everyone there thinks it’s ok, a sexualized workplace is not acceptable.

• Be very specific about what is and is not acceptable. Give clear examples – even if they’re embarrassing to repeat. Don’t want employees to brag about the size of their breats or genitals? Tell them that’s not acceptable. Don’t want them to talk about the exotic dancers they went to see last night? Tell them that. You get the idea.

• Include an expectation that management be informed when anyone violates these expectations. Watching silently is not an option.

• Be clear about the consequences for violating the expectations.

Why such a big deal? Isn’t everyone just having a little fun at work?  It’s a big deal because not only does this kind of activity interfere with work performance, but it’s entirely possible that someday a new employee will be hired who won’t put up with it – and when they file a harassment lawsuit and cost the employer tens or hundreds of thousands of dollars – not to speak of poor publicity – it’s a high price to pay.

Have you successfully dealt with the problem of a sexualized workplace? What did you do that worked? We’d love to know! ~Daphne Schneider

A claim of disability?

Amy recently wrote about issues of fragrance in the workplace, and how to protect people with these allergies.  That’s certainly a serious and legitimate issue.  I want to approach questions of disability accommodation from another angle.

The detials in the following have been changed, but the issues are ones I recently encountered in an investigation I was conducting.  Jane (not her real name) brought allegations that her new supervisor is discriminating against her based on her disability (she has difficulty sitting for long periods of time.)  She’s made this complaint because suddenly, after nearly 11 years with the same employer, she’s receiving poor performance reviews when her work hasn’t changed.  So, since there’s no other obvious basis for a poor review, it must be discrimination – right? 

When I speak with Jane’s new supervisor (he’s been there about 18 months), he tells me that everyone always complains to him about Jane: she’s rude to customers,  her co-workers have a hard time getting her to cooperate on anything, and because of her disability she’s away from her desk a lot.  I discover that she has never formally requested an accommodation for that alleged disability, but everyone assumed that since she said the doctor told her not to sit for long periods (undefined) they simply had to accommodate that, especially after she told them she’d sue if they didn’t accommodate her. 

And, of course, when I looked back at Jane’s years of performance reviews, guess what? She was consistently marked “above average” or “outstanding” in every category with no comments in any way indicating there were any issues.  No wonder she’s surprised there are issues!  The first year Jane had theese undocumented issues they were Jane’s problem.  Every year thereafter they are the supervisor’s problem.   

So, what to do now?  There are a few basic steps you in management need to take:

1.  Provide Jane with a well written job description to take to her medical provider.  She needs to ask that person to write a letter specifically stating what kind of accommodation is needed.  For instance, just saying “Jane can’t sit for long periods of time” is inadequate.  How long can she sit before she needs a break, and how long does that break need to be?

2.  Once you have this information, determine whether you can accommodate Jane and still get the work done.  For example, if Jane has a desk job but can only sit 10 minutes at a time before needing a 10 minute break, you may need to get her a stand-up desk since it is unlikely she’ll be able to accomplish all her work in half the time.

3.  You need to work with the new supervisor to ensure that performance expectations are clear and reasonable, and that they are communicated to Jane.  New supervisors get to have different standards and expectations – as long as they are reasonable and Jane has a reasonable length of time to adapt to them.

 Finally: make sure that you act on the basis of fact, not fear.  Just because Jane says she needs accommodation does not mean that she does.  Get the medical provider’s request and follow the steps.  Be respectful, but be clear that you have the authority to run your organization.  And, never, NEVER yield to intimidation: do your homework, but then if an employee threatens to call their lawyer or the rights agency, please hand them the phone.

 Thoughts? Questions?  Let us know!  ~ Daphne Schneider

 

 

Bullying? Maybe not…

A colleague asked me the other day whether I think there are more lawsuits and more formal workplace complaints than there used to be. I think there are, and one of the things that’s increased dramatically over the past years in my work is more complaints for harassment and bullying against coworkers. Though some of those complaints are clearly valid and serious and need to be addressed in a legal/investigation context, many of the others I see are something else entirely.

Please don’t misunderstand me: bullying is a real and serious issue, a legitimate problem. When one person targets another on the basis of race, gender, religion or any number of other reasons and makes his or her life miserable with taunts, comments, sabotage, malicious gossip or threats – that’s bullying and harassment (at a minimum).  When that’s going on, you need to either address it directly or with assistant from management or human resources.

However, I get worried when I see the word “bullying” so often tossed around and people labeled as bullies when what they’re really doing is essentially behaving badly (they never went to manners class). Unfortunately, there are lots of people who are rude, obnoxious, obstinate, unfriendly, unwelcoming, discourteous, insensitive and otherwise  ill-mannered.

Here’s the sort of thing I’m talking about:

- Susie, the administrative assistant who makes it very difficult for anyone to give her work to do (though doing work for others is her job) by purposely misunderstanding directions and repeatedly getting things wrong.

- Art, the analyst, who constantly interrupts, speaks way too loudly, towers over people (he’s bigger and taller than most everyone and stands way too close).

- Yusuf, a senior employee, who is constantly telling people how to do their jobs because he’s been there a long time and believes he knows all.

- Carlotta who gives out lots of unsolicited advice, spreads gossip constantly and wants to be in everyone else’s business.

So, are these bullies? No, they’re not. They don’t target specific people (one of the definitions of bullying behavior). They’re just generally hard to work with because they have bad manners, are rude and arrogant.

So, if you work with one of these folks, should you file a harassment and bullying complaint? No. You should become assertive and address these behaviors directly.  Even though confronting them may be uncomfortable, it will very likely result in changed behavior.  I’m going to bet that most of the folks who behave this way have never been called on it, so keep doing what they’ve always done.  So, with the above coworkers:

- Be clear in your instructions to Susie, and tell her you expect the work to be done correctly. Follow up and have her re-do it until it’s right. She’ll get tired of that and start doing it right in the first place.

- Politely ask Art to back off, or sit down. Don’t allow him to interrupt – tell him you were speaking, and need to finish (it’s likely no one has ever said that to him before!)

 – Express your appreciation to Yusuf  for providing history, and tell him that you will do things the way you believe to be best, and don’t argue (don’t give him the opportunity to browbeat you into compliance.)

- Stop listening to Carlotta when she gives advice or spreads gossip. Tell her you don’t have time, and go back to your work. A lack of an audience may well tame her inclinations.

There are many other examples of bad behavior at work that are simply that – bad behavior at work. Learn skills to address people who act this way, rather than filing formal complaints. But do make a formal complaint if real harassment and bullying is going on – and learn to tell the difference.

Have you encountered bad behavior at work that may have felt like bullying but wasn’t really? Tell us about the “equal opportunity” rude coworkers you’ve encountered and how you dealt (or should have dealt) with them. ~Daphne Schneider

The Corroboration Myth

Perhaps the scariest investigation scenario for an employment investigator – be it an HR person, a manager, or an outside independent – is the classic “He said. She said.” This is the situation where two parties dispute what happened between them and there are no witnesses to the incident.

Many think that without corroboration, it’s just not possible to determine what happened or who is telling the truth. While at times this may be true, it’s often not. The application of credibility factors and a little common sense can go a long way toward deciding what happened.

First, a story. Many years ago I did a sexual harassment investigation. A few weeks later, the accused party called me and said he’d been fired. He then asked if there were any witnesses to the alleged harassment. When I said no, he asked how I could say what had happened. My answer: “I believed her.”

Following are some of the factors to consider when determining witness credibility:

  • Whose story has the most details? A more detailed story is often more credible than a vague or general one.
  • Who has a motive to lie? Typically, this question is asked about the complaining party (why would he or she make this up?) since the accused inherently has a motive to lie. But it can apply to the accused as well as witnesses also.
  • Is the story internally consistent? A credible story is internally consistent.
  • Is there contemporaneous documentation of an event? The key word here is contemporaneous since documentation created months or years later may be helpful, but will not necessarily lend support to the truth of the facts stated in the documents. Too much time has elapsed.
  • Did the party tell anyone about it contemporaneously? Again, if one of the parties talked to someone else very close in time to the event, this may be useful as corroboration of that party’s story. I’ve seen this operate very powerfully. It doesn’t always though, particularly if the party in question has perception issues.
  • Is it likely there would be corroborating evidence if the event occurred? If such evidence is missing, that may be significant. One party alleges that that other was screaming at him. If no one else heard it – and there were people around at the time who should have – maybe the screaming didn’t occur. “Scream” is a rather subjective word anyway….
  • Whose perceptions seem most accurate? Often, no one is lying per se. Witnesses just have different perceptions. The issue then is: whose perceptions seem most accurate based on all the circumstances. Here’s where common sense and putting all the pieces together come into play.
  • Who has access to information? Sometimes the winner is the one with the access to the best information.
  • One clear lie. Sometimes, if you catch a witness in one clear lie, that will cast doubt on other things they said. The lie has to be significant and not just something the witness could have remembered incorrectly.

So is this a recipe for determining credibility? Sadly, no. It still takes judgment, and the courage to take a position. Just tell yourself that the buck has to stop somewhere.

Do any of you have other useful credibility tools?  ~Amy Stephson

Worst Bosses of 2010

I recently came across a website that lists the alleged “Worst Bosses of 2010.” Now ,it’s not a scientific study, and it’s based on submissions by thousands of individuals around the country to the eBossWatch website (whose tag line is “Nobody should have to work with a jerk.”). That said, I continue to be stunned (I know, I should be less naïve – especially given the work I do) by what bosses do in this day and age.  A few striking examples from this site:

• Sexual harassment: “no honey, no money” was one of the comments from a male boss to his female assistant – and you thought the casting couch was a thing of the past!

• Racial harassment: the white boss saying it was “just a joke” when he discussed the marks a rope would make around an African-American employee’s neck

• Assault, as well as sexual and racial harassment by the female African-American boss who tried to run over a white, male employee in retaliation after he alleged that she called him her pet dog and snapped her fingers at him saying, “Come here, white boy.”

And, lest you think that it doesn’t happen around here, state of Washington bosses landed tsix times on the top 100 “Worst Bosses of 2010.” . The honorees were:

# 8: Don Gough, Mayor, City of Lynnwood for sexual harassment and the creation of a hostile work environment.  A number of his female employees have accused him, and the City recently settled a lawsuit for nearly $50,000 with several of them.

# 17: Three managers of the Evans Fruit Company in Sunnyside were named in a lawsuit by the Equal Employment Opportunity Commission (EEOC) for “sexual comments, propositioning and physical groping” of female employees, including a 15 year old.

# 43: Greg Lassiter was fired as Snohomish County Planning Director for exposing himself to a woman during a golf tournament.  His behavior recently resulted in the County’s settling a lawsuit for $600,000. His Deputy Planning Director, Greg Morgan, was named #56 on the “worst bosses” list for helping create a “Harley club” for male managers whose members allegedly regularly left work early, got drunk, rode their motorcycles, and supported one another in firing and promoting favorites.

# 86: In a letter from her colleagues to the site, State Senator Pam Roach was chastized for “an ongoing pattern of treating your co-workers and employees with hostility and anger. As your fellow Senators, it is difficult to be in a room with you when you erupt in anger. For our employees it is unacceptable.”

So, most unfortunately, we in Washington are well represented here. As we close out 2010, I’d challenge each of us to make sure that we would be found on a “best bosses” list because we understand our own power and use it for good by

• Setting and modeling clear, high standards for workplace behavior and civility, and expecting and helping all employees meet them

• Treating all employees fairly and equitably

• Demonstrating caring and compassion for staff and customers/clients

• Helping all employees meet the organization’s goals as well as their own professional goals

• Supporting the greater community by giving back and encouraging our employees to do so as well.

Wishing you all a wonderful holiday and a great 2011! We’ll be back next year. ~ Daphne Schneider