Category Archives: Harassment and Discrimination

Email in the Workplace: Do’s and Don’t’s

Recently, I did a coaching project and an investigation, each of which arose primarily due to the misuse of email. And the resolution of each partially involved developing some guidelines about email communication.

I am sympathetic to our use of email over other forms of communication given how easy and convenient it is. Plus, unlike a phone call, you can control when you read and when you send.

For many reasons, however, using email for anything beyond basic communication is risky. First, most email writers are busy and when drafting an email, don’t take the time to be precise and clear. Many of us don’t really even know how to be precise and clear: writing is difficult! The result: miscommunication.

Second, email writing tends to be flat: it does not convey the range of meaning that body language or one’s voice conveys. Again, the result: miscommunication.

Third, email is simply not the appropriate medium to discuss complex or sensitive issues because, again, that only invites miscommunication. And worse: it can lead to hurt feelings, resentment, and even complaints. Because many of us are uncomfortable with complexity and emotion, however, we are relieved to not have to talk about such things in person or by phone – and therefore use email.

Finally, many of us don’t read most emails very carefully. So even if it’s clearly written, fairly straightforward, and not on an sensitive or emotional topic, some readers will miss the point.

And we’re not even talking about emails with inappropriate subject matter such as sexual jokes or racist comments.

So, what can be done, given email’s ubiquity and usefulness? I’ve come up with some rules. Ideally, employers would communicate these in advance to all employees who use email in their jobs. Reminders don’t hurt either.

  • If an email involves anything substantive, take the time to ensure that it is clear and complete. Do not just dash something off. Take a minute or two to think — and then proofread.
  • If an email string is developing, stop and decide if it makes more sense to talk in person about the issue. Go to the other person’s desk, pick up the phone, or send a reply that says, “Let’s talk about this” with a suggested time.
  • If a topic is complex or sensitive, consider communicating in a different way. A meeting, a phone call, a memo — one of these will often work better.
  • Keep your sentences and paragraphs short and your font reasonably sized. (Fie on Gmail for its small, boring font!) Do what you can to ensure that your readers will actually read and understand your message.
  • If you’re a manager, do not criticize subordinates in email. Talk to them. And if a writing is necessary, document the problem in an appropriate way.
  • Do not copy people into emails unless it is necessary. First, it clogs up people’s email boxes. Second, you know why you included a particular recipient, but that person  may not know why you have copied them in or may not be paying attention. Finally, if the message is the least bit negative, the direct recipient may feel that you’re defaming or undermining them with others.
  • The previous rule applies doubly strong to “Reply All.” Think before hitting that button.
  • Do not rely on long email strings to communicate a point. Restate the point or if appropriate, at least indicate where the relevant information can be found, e.g., “Please check so-and-so’s email of [date and time].”
  • If you think the other person is in error or has forgotten something, do not say, “That’s incorrect” or “You have forgotten X” or the like. Instead, say something along the lines of “My recollection is that we decided to do X” and then explain. Better yet, talk about the issue in person.
  • Keep emails will polite and respectful. No accusations or snarky or rude comments. Emails last forever.

Do you have any other email rules? ~Amy Stephson

Should You Investigate? Part 2

Last time we talked about Sally, who had come to management saying she was being “harassed” and was working in a “hostile work environment.” Management took her to HR. But then what?

Too often, what happens next is one of two things. If Sally is a difficult employee, has been known to complain in the past, or if the person she is complaining about is well liked, the inclination is to dismiss Sally’s complaint and do nothing. The other thing that often happens at this point is that a formal investigation is immediately started – either internally or by bringing in an external investigator. Either of these might be the correct response…BUT NOT YET. Without knowing more about the issue, it is not possible to determine what steps should be taken. Just because an employee uses words like “harassment” or “discrimination” or “hostile work environment,” it does not necessarily mean you will need to conduct a full-blown investigation.

The first thing to do (after taking the steps described last time to protect the employee and assure the integrity of any future investigation), is to perform a high-level review of the facts as Sally presents them. Here are some things you should consider in deciding about next steps:

  • Determine whether Sally’s complaint is general (e.g., Henry is mean and unfair in the way he treats his staff) or specific (e.g., yesterday he gave Sally a frontal hug, stroking her back and making her very uncomfortable.)
  • If what Sally is telling you is new to you, listen carefully in a neutral, non-judgmental manner, and take notes without making any editorial comments.
  • If what Sally is telling you is not new, determine whether prior complaints about the issue she is raising have been looked into. If they were, what happened? If they were not, why not? Use this information as part of your guide for action.
  • Not all complaints require an investigation. If Sally’s complaint is more general in nature, it may require an organizational assessment or an assessment of the skills of the manager, rather than an investigation.
  • If Sally’s claim leads you to believe that your policies (or laws) may have been violated, are these violations of policies/laws against discrimination, harassment, ethics, employee conduct, etc.? If not – Sally may still be unhappy, and her unhappiness will still need to be addressed, but not from a policy violation perspective and not by an investigation.

It is very important to understand the basics of the problem or issue before addressing it. In many of the investigations I have conducted over the years, I’ve not seen that anything illegal has happened. In fact, frequently no company policies or laws have even been violated, and sometimes the employer could have determined that quickly without even calling me. In many of these cases what I have seen is poor communication, employees who are unhappy for a variety of reasons, and supervisors and managers who may have good technical skills but don’t have people skills.

So remember:

  • Don’t ignore employee complaints.
  • Employees don’t have to come to you with their complaints – they can go directly to their attorney or an outside rights agency. If they do that, it will cost you a lot more (time, money, good will and reputation). Create a workplace where employees want to resolve their issues internally by coming to you rather than going outside.
  • If you can’t be neutral in hearing an employee complaint (without assuming there either is or is not a violation of policies or laws), have someone else deal with the situation.
  • Respond appropriately. If it’s likely an allegation of a violation, investigate. If it’s likely a complaint of poor supervision, management, communication, etc., you may need to assess the situation further, but you likely won’t need to investigate.

So, before either dismissing a complaint that is brought to you, or immediately beginning a full-blown investigation, take the time to really assess what you know and determine the best way to approach the situation. You’ll be much more satisfied with the results!

Have you responded to an employee complaint with an assessment rather than an investigation? What happened? We’d love to hear! ~Daphne Schneider


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