Category Archives: Harassment and Discrimination

Should You Investigate? Part 1

You just got an employee complaint…Oh, what to do, what to do???

I’ve been pondering this question after years of conducting workplace investigations for clients. After about 350 investigations, the results are interesting: in at least 75% of the situations, nothing illegal has happened. So, should there have been an investigation? It depends.

I have found that some clients immediately choose to investigate when an employee uses what I think of as the big trigger words: harassment, discrimination, hostile work environment. Almost everyone in this day and age has heard these words tossed around. They’re in the media all the time. But few of those who use them understand them to have legal definitions based on statutes and case law.

So here’s what sometimes happens: Sally tells someone in management she’s being harassed and is working in a hostile work environment. That person (rightly) report that allegation to either human resources (if it exists in that workplace) or upper management/the CEO. And then I get a call. Sometimes that’s all it takes.

So what should a manager do when someone comes report that they are being harassed, or are working in a hostile work environment? Shouldn’t you just drop everything and call in the investigator? NOT YET. (Yes, I know I may lose some work by saying this.)

What to do instead? Take the following steps, in this order, and then decide whether you need an investigator.

  1. Assure Sally she will be protected from any retaliation in connection with her complaint (and yes, by saying these words to a supervisor or manager, she has already made a complaint). Ask her to tell you if she feels she is being retaliated against in connection with this complaint – and remind her not to retaliate against anyone else. Any retaliation against her (or by her) in this situation is illegal under both Washington state and federal laws.
  1. Have Sally meet with someone who has been trained to deal with such situations. If no such person exists in your company or organization, do bring in an investigator to interview her appropriately. Then get several people trained in these basic interviewing skills. 
  1. If Sally’s complaint is about one or two specific incidents, ask her to write it up, with as much detail as possible. Then have her sign, date and give the written statement to you (you’d be surprised how many such statements are neither signed nor dated.) If you have an actual complaint form for such situations, of course do ask her to complete that as well.
  1. Ask Sally not to discuss her complaint with her colleagues. This is a very important request, for the sake of your ability to deal with the situation professionally. However, you should not make this a directive. The National Labor Relations Board has indicated that forbidding employees to discuss workplace concerns may be illegal.

Once you have information from Sally, if that information indicates that she has examples of behavior that could be harassing or create a hostile work environment under the law, you must investigate or hire an investigator to do so. Failing to do that could cause an additional complaint against the employer.

And, document, document, document. Note when Sally first came to you, what she said, and what you and others did. Keep that documentation indefinitely.

In my next post, I’ll be providing some additional information about questions to ask (or not ask) in that initial interview, and what else to do (or not do!)

Have you had employees come to you with allegations of discrimination, harassment or hostile work environment? What did you do that worked, or didn’t? Let us know! ~Daphne Schneider

The “Perception Is Reality” Trap

We all know the phrase, “perception is reality.” And in a psychological sense it is true: we all experience the world through our own lens and that is our reality.

In the world of human resources management, however, I find that this phrase can muddy up the analysis necessary to effectively lead and manage employees. This occurs particularly in workplace investigation and conflict resolution contexts where it is all too easy to be sucked into an unreasonable employee’s perceptual wormhole.

Here’s how problems arise. When applying harassment policies, we are taught that it’s the impact of an employee’s actions on another that matter rather than the employee’s intent. This is often true: someone may think they’re “joking” when they make a sexist or racist remark, but regardless of their intent, such remarks can still be harassment based on their impact on the recipient.

This does not mean, however, that any and all perceptions, i.e., impacts, are created equal. Because the law also provides that the recipient’s reaction to an action or remark must be “reasonable,” i.e., based on some objective reality. Some examples:

  • A female employee sees posted in a male employee’s cubicle a birthday card with a scantily clad female on the front. Can she ask management to direct him to take down the card? Sure. Can she argue that the card in and of itself has created a hostile work environment for her? Not so much. However upset she may be about the card, her perceptions do not trump the fact that a reasonable woman would not find her workplace imbued with gender hostility based on a co-worker’s birthday card with a bikini-clad woman on the front. And she needs to be told that. [And yes, this was a real case.]
  • An employee contends that he feels “unsafe” after his supervisor critiques his job performance in a closed door meeting. Or he contends that the supervisor was “abusive” for telling him he could be terminated if his repeated tardiness continued. The employer will certainly want to check into these allegations to make sure the supervisor did not behave inappropriately. But once the employer is comfortable that the supervisor was just doing his or her job, the complaining employee must be told that in no uncertain terms.

It’s hard to tell a complaining employee “in no uncertain terms” that his or her perceptions are incorrect. Such messages must be delivered kindly and without any suggestion that the employee is lying or crazily hypersensitive.

In appropriate cases, moreover, management may want to take some steps to at least partially acknowledge the complaint (“We have told him to take the birthday card down” “Would you rather meet with your supervisor in a conference room next time?”) But it is critical at the same time not to enable or encourage employees to maintain their unreasonable perceptions.

Why not just give in? After all, that “unreasonable” employee may decide to bring a lawsuit against an employer for not taking the actions he or she demanded. So yes, it is important for an employer to take complaints seriously even in cases involving “perceptually challenged” employees.

At the same time, such employees often have a highly negative impact on both co-workers and managers, to the point that these others may leave. After the due diligence is completed, therefore, it is equally important to insist on a level of sanity and reason in the workplace.

Any additional thoughts on this issue? ~Amy Stephson

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