Stop Harassment Before it Starts.

I just did an article with this title for a guest blog that was just published. You can access it at http://www.leadershipcourseware.com/blog.

False harassment complaints, revisited.

Last year I wrote an installment of this blog entitled “False Complaints of Sexual Harassment: A Practical Approach.” Interestingly enough, that is the most read of all of my blog entries and the one read most from Internet searches. While this has been an unexpected result, it is not all that surprising and tends to reflect the fears I frequently hear voiced by clients. Simply put, many HR people and managers are fearful that telling employees about the large monetary settlements will encourage people to file complaints solely for the purpose of financial gain. While I won’t argue the fact that there are unethical, dishonest people out there who might try that, the vast majority of the American workforce does not fit that description.

First, I suppose we have to consider the likelihood of that happening. While this is certainly a possibility, I have to think that expecting that to be the case takes a very cynical view of most employees. Frankly, I think that companies that look at their “most valuable asset” through that lens probably deserve more than their fair share of unethical employees. And yet, false harassment complaints are still the exception rather than the rule. I have seen an article that put a very low percentage on it but since I have not been able to find that article I will content myself to say they don’t happen very often.

If we think about it, filing a false complaint might occur for a variety of reasons, money not being the least of those. Still, every complaint doesn’t result in a lawsuit or even an EEOC complaint. A complaint has to be the result of behavior that is pervasive or severe or both before it rises to the level of being illegal. Keep in mind that lawyers typically don’t take cases they don’t think they can win. Plus, over the last decade, the EEOC dismissed nearly 50% of all sexual harassment complaints and nearly 60% of all other harassment complaints with a finding of No Reasonable Cause. That is not to say that no harassment occurred in those cases (i.e. false allegations,) it more often means that either the offenses were not serious enough to rise to the level of being illegal or there was not enough evidence to support the claim.

Going back to the original question: does training, especially training that increases awareness of the large monetary settlements and damage awards, increase the likelihood of an employee filing a false complaint? Logically, we have to answer yes, but how much does it increase the likelihood of a false complaint? Even if it worked out to something like 5% (which, in my mind, is an astronomical number) we are still faced with the fact that with the high cost of being wrong, it would seem the prudent thing would be to assume the complaint is legitimate until you have exhausted all other possibilities.

In my experience, people don’t typically start to think about the money involved until after someone has started harassing them. Most of the time people file a complaint to get the harassment to stop. With this in mind, looking for the ulterior motive in the complaint should realistically be the last item on the list of possible reasons for the complaint. At the end of the day, if your policy and training encourages people to come forward with complaints, you have the opportunity to deal with issues before they result in an EEOC complaint or law suit, and that is what you want the training to do.

When I start to provide awareness training for new clients, I warn them up front that they may see a temporary increase in the number of complaints they receive. The first thing they suspect after I tell them that is that the training is somehow causing the harassment. While I can understand someone jumping to that conclusion, that is obviously not the case. It more than likely tends to illustrate just how much of a problem they had to start with. One of my clients put it best, I think, when he saw an increase he said “this just shows me how much we were overlooking or tolerating before.”

So, does training increase the likelihood of false harassment complaints? Yes. Increased knowledge always puts ideas in the minds of unscrupulous people. That is the least of your worries though. If you don’t provide effective training for your managers and employees the question is not whether you will be sued but when.

Maybe it is time to refocus our anti-harassment training.

For the last eleven years my anti-harassment training has focused on sexual harassment for the most part with a passing acknowledgement that Title VII, ADA and ADEA prohibit harassment on the other protected groups as well. The main reason for that, at least from my perspective, is that is what my clients have asked for over that time period and even now. The calls I get for my services still are focused on sexual harassment. The one-on-one harassment training I do is almost exclusively about sexual harassment. This may be an artifact of the way I advertise my services and the fact that most of my referrals come from clients that used me for sexual harassment training. Still, it occurs to me that we might need to broaden the focus of our anti-harassment training programs to ensure that we are doing all we can to protect our organizations, and in the past few years my training has moved, albeit slowly, in that direction.

In January, the EEOC announced that 93,277 workplace discrimination charges were filed with them nationwide in fiscal year 2009. This represents the second highest number of complaints ever and resulted in over $294 million in damages and that does not include the $82 million resulting from litigation. Unfortunately, the way the EEOC reports their charge statistics on their web site precludes any conclusive analysis. A single claim may contain claims of discrimination in a number of categories. For instance, if you add the number of charges from each category it totals somewhere over 170,000 or nearly double the number of individual charges filed. The monetary benefits in the cases that are resolved are not divided but reported in each of those categories. I am not being critical here but only explaining why we need to exercise caution when interpreting these complaint statistics.

In FY2009, there were 30,641 harassment complaints that resulted in $80.5 million in damages and there were 12,696 sexual harassment complaints which resulted in damages of $51.5 million. Clearly, there is some overlap between these two statistics, but even taking that into consideration, the numbers suggest that damages awarded for sexual harassment complaints are generally going to be higher than those awarded for other forms of harassment. Add to that the fact that sexual harassment complaints generally seem to be more newsworthy (typically because of the high-profile individuals involved, e.g. Clarence Thomas and Bill Clinton), and it is easy to understand why sexual harassment training continues to get the most attention.

 If we look closer at those statistics, we see that over this decade the number of sexual harassment complaints has slowly dropped from 15,836 in FY2000 and has stayed relatively stable around the mid 12,000’s. The dollar amounts have varied a little but tend to stay around the $50 million mark across that time span. In that same time period, harassment charges in general have risen continually from 24,239 complaints in FY2000 to 30,641 in FY2009, and the monetary awards have also risen steadily from $47.4 million to $80.5 million. This seems to suggest, to me at least, that all of our training efforts are have at least some effect on sexual harassment, but there is a need to expand that training to place more emphasis on the other protected groups that the EEOC watches over.

Some may pass this off as temporary, or perhaps, a result of our sagging economy but I don’t think it is that simple. I think we are seeing the same thing we saw with sexual harassment in the 1990’s. As people become more aware of the laws and the protections afforded to them by those laws, they become increasingly more likely to come forward and complain. The good news is, from the perspective of the working managers who have to deal with this it doesn’t change much. True, there are a few more laws to learn and understand, but from a practical perspective the way these issues are handled is no different than how sexual harassment is handled. It comes down to the same point. We have a responsibility to provide a respectful workplace for all of our employees. Besides, that’s just good business.

Are protected groups the only ones we should protect?

A bill pending in its legislature would make Ohio the 22^nd state to prohibit discrimination based on sexual orientation and only the 13^th to prohibit discrimination based on gender identity issues. Title VII does not include Lesbian/Gay/Bisexual/Transgender (LGBT) individuals among its protected groups. In Oncale v. Sundowner, the U.S. Supreme Court has indicated that since illegal discrimination can occur between same-sex individuals, an individual’s sexual orientation is irrelevant. And while I see the logic in that ruling, I also see the seeds of ambiguity. That ambiguity could lead the various District and Circuit Courts to draw different conclusions in applying the ruling to a specific case.

Personally, I am more interested in how to keep my clients out of the situations that would lead to such misinterpretations. In the long run, I suspect it will only be a matter of time before LGBT individuals are included under Title VII’s protection. Their inclusion in recent hate crime legislation would seem to support that notion. Until then, what should we do to prevent the question from arising in the first place? As a matter of course, when I do anti-harassment training or sexual harassment training I have always treated LGBT individuals as a protected group. After all, harassment is harassment regardless of who is targeted or why. When we look at this issue from that perspective, we are no longer making special accommodations for any group.

If we strive to provide a respectful workplace for every employee, then the policies we write and the training they inspire tend to reflect that. The sample anti-harassment policy template that I recommend for my clients’ use lists every group I can think of that might be discriminated against. It also spells out clearly that harassment of other employees will not be tolerated. When I do anti-harassment training, I focus on the point that everyone, without exception, has a right to come to work and do their job without having to worry about being harassed. As is always the case, the policy and the training must have the buy-in of management or they are worthless. Harassment of any kind, for any reason, erodes the qualities of the workplace that promote productivity and profitability. So, it follows that providing a respectful workplace for all employees is just good business. We have come a long way but we still have a lot to do.

Sexual harassment isn’t always about sex.

Recently, I read an article on MSNBC.com that talked about a recent study that found that “Female managers are 137 percent more likely to experience sexual harassment than their rank-and-file counterparts.” Something about that struck me as counterintuitive. Thinking back over my life and the various female managers I have had, I could not envision myself as making a sexual overture to any of them or even making an off-color remark in front of them. I definitely could not imagine harassing any of them. Why would anyone with ANY sense do anything that stupid?

Being one that has little faith in the ability of the average journalist to accurately interpret the findings in the majority of most social science research, I had to be sure that this was indeed a conclusion drawn by the researchers who actually conducted the study. No offense intended to those of you who are journalists but most social science research is not necessarily that easy to read and interpret if you don’t have a background in Psychology, Sociology, etc. While the article didn’t cite the research directly, it did identify Heather McLaughlin of the University of Minnesota as the primary investigator. With a little research, I came up with an email address for her and asked her how I might obtain a copy of the research. She graciously sent me a copy of the most current draft and explained that the paper had been presented at the annual meeting of the American Sociological Association and was currently being prepared for submission for publication.

As I read the article, it all started to make more sense. The research was well done and while it suffered from the same issues that almost all social science research does, namely the reliance on people as sources of information, the conclusions were, I thought, insightful. In particular, I think the idea that harassment of women in power serves the purpose of maintaining traditional gender roles makes a lot of intuitive sense. In that light, it is much easier to understand a subordinate male harassing a female manager as a way of leveling the playing field and maintaining the status quo. While the research addressed several other important issues in sexual harassment, it was this conclusion that led to the events that spawned the idea for this particular blog entry.

This particular conclusion is consistent with the longstanding belief I have that sexual harassment is generally about power. As always seems to be the case, I was curious as to whether other professionals in the field shared the same view. Consequently, I posted a question on the numerous discussion groups I belong to just to see how others might look at this conclusion. While the responses I received were much as I had expected, almost to a person everyone agreed that the majority of sexual harassment cases are about power, there was a surprising artifact in the responses. While most men were in agreement that sexual harassment is almost always about power, most of us left open the possibility that some cases did not necessarily fit that mold. Virtually every one of the women who responded adamantly held the view that sexual harassment was always about power.

Naturally, this perceptual gap between men and women intrigued me more than the original question and I asked a follow on question in each of these groups to see if I could uncover a reasonable explanation for it. What followed were numerous responses from both men and women that, while never really satisfactorily explaining why women looked at this so much differently than men, did reinforce the idea that men and women definitely look at things differently. Guess what? The “Reasonable Person Standard” is there for a reason. There were also numerous private exchanges with different participants in this discussion, both male and female, that brought me only marginally closer to understanding this great perceptual divide. I was almost to the point of passing it off as “it’s a woman thing and I wouldn’t understand” when I got a response from a woman I consider to fit that reasonable person description. She offered, in confidence, an explanation that put everything in perspective for me. She offered up the idea that the perspectives of men and women are greatly affected by the existence of “male privilege” in our society.

While I have long been familiar with the concept on White Privilege (I illustrate it in a variety of ways in the psychology and social psychology classes I teach,) the issue of male privilege does not so readily come to my mind. I know, all of the women reading this right now are thinking “well, duh!” That is the point exactly. As a man, I am never going to be able to completely understand how women interpret any situation any more than as a white person I would be able to completely understand the perspective of a person of African American descent.

When we look at interactions between men and women in any Patriarchal society, even one that is moving (ever so slowly) toward parity, the impact of male privilege will always be present, sometimes more subtly than at others, but it is always there. On a very base level, one example of this is the attitude that, as a man, I have a “right” to sexually evaluate a woman’s appearance. As perhaps a more subtle example, as a man, it is my responsibility to protect and take care of women. Is it really any wonder that women tend to look at virtually everything a man does as exercising power? Do we intend it that way? Maybe, maybe not.  Never having been subjected to that, how can I ever come to understand that? I can probably, at best, accept it on an intellectual level but I will be almost incapable of understanding it at an emotional level. Needless to say, men and women have quantitatively and qualitatively different experiences of the work environment.

The good news in all of this is that this is just an academic discussion. In practice, the majority of us will deal with the harassment appropriately and then, after the fact, wonder about the whys and wherefores that caused it in the first place. Or not.

Where do you draw the line in resolving a sexual harassment complaint?

In my experience, I have seen wide variability in how organizations resolve sexual harassment complaints. At one extreme, even if the investigation fails to show that the individual is guilty of the behavior alleged in the complaint, they may get fired. I have seen individuals threatened with termination in cases involving minor infractions. On the other end of the spectrum, I have seen organizations show a strong reluctance to fire someone for sexual harassment in all but the most egregious offenses. This is especially true if the individual is in some way key to the success of the organization. And of course, there is everything in between. So where do you draw the line?

Let’s forget for a moment that there are companies out there that haven’t updated their anti-harassment policies since the 1990′s and others that have no formal sexual harassment training program for their employees, let alone their managers. In those cases you would expect there to be a hit or miss approach to dealing with complaints. The inconsistency I am talking about is in companies with good policies, regular training, good complaint reporting procedures, etc.

The most obvious example that comes to mind is a case where I was called in to do remedial training with an individual. The complaint consisted of one mildly inappropriate email that was forwarded, one instance where the man called a female coworker ‘babe, and one phone call to a female coworker. The content of the call was not in question but it occurred at 8:30 pm.

After looking at all of the evidence, I was not sure why I was there. The CEO and the HR manager were convinced that they really needed to fire this man. In my mind, the reasonable person standard did not support that conclusion. I questioned the HR manager at length looking for some evidence of other inappropriate behaviors and found nothing. I spent the better part of a day with this individual and nothing he did or said changed my opinion. In my mind, he was prone to get too comfortable and not think before opening his mouth.  In my opinion, the company was so afraid of being sued that they overreacted.

On the other side of the coin, I had a case where the individual trapped a female coworker in a room and wouldn’t let her out. He tried to kiss her but it did not escalate to the level of physical force. When she managed to get free she called the police on him (as well she should). As there was no physical evidence the police let him go. The company refused to fire him in spite of the recommendations of their attorney and me. I spent most of the day with him and was convinced he did what the complainant alleged though he denied it adamantly. I was also convinced that he would do it again. Still, the company would not fire him.

I am not opposed to a zero tolerance policy but the punishment should always fit the offense regardless of who is involved. When the individual involved is a high value employee, companies seem more likely to turn a blind eye to the behavior. That puts the company more at risk in my mind than losing a prized employee or manager.

So where is the middle ground in resolving sexual harassment complaints? Every complaint should be taken seriously, regardless of who is involved. I say that because it is human nature to develop perceptions and attitudes about the people around us. If the complainant is someone we see as a trouble maker and/or the accused is an office favorite, it is easier to dismiss the complaint as groundless. When I do management training I stress to them that proper handling of sexual harassment complaints is the most important thing they have to do at the time. In many cases, that will determine whether or not the complaint ends up in litigation. Most of the time, people complain to get the harassment to stop, not so they can sue someone.

All too often, I see companies that, in their determination to eliminate sexual harassment, lose sight of the fact that the accused also has rights. In the majority of remedial training cases I have had I found that the accused felt that they had never had an opportunity to tell their side of the story. That is not to say that they were not guilty of some inappropriate behavior. In almost every case, they had, at the very least, used poor judgment or just weren’t thinking when they got themselves in trouble. The point is, everyone involved should be treated fairly, which includes the idea of being innocent until proven guilty.

The idea of a zero tolerance policy is good in theory but in practice should be administered with a strict adherence to the policies in place and tempered with the idea that the punishment should be commensurate with the offense. While I think disciplinary action should be administered consistently regardless of who is involved. Frequently organizations are reluctant to terminate high value employees. While there may be some rationale for this attitude, it is short sighted and risky to apply different disciplinary rules to different employees. I suspect it would be legally indefensible, not to mention the mixed messages that type of management sends to the employees. Neither of which is in the best, long-term interest of the organization.

How should an organization resolve sexual harassment complaints? Quickly, fairly, and consistently. Everyone involved has rights and those rights have to be protected. Do things that way and you go a long way to developing a perception among employees that the company will not tolerate inappropriate behaviors and there are consequences for engaging in those behaviors. Throw in commitment from your managers and a regular training program and most issues never escalate to the level of an EEOC complaint.

False Complaints of Sexual Harassment: A Practical Approach.

Last week I posted a question to a number of the discussion groups I participate in on LinkedIn asking how people handle false complaints of sexual harassment. Surprisingly, this particular question got more comments than any other discussion question I have ever posted. I got a lot of very good responses, (and a number of really strange responses) ranging from very cautious to very punitive approaches to this issue. Interestingly enough, few of the responses really seemed to express much concern about the obvious issue of retaliation that this situation might evoke. In fairness, if we have demonstrable evidence that there is malicious intent in a false allegation of sexual harassment, the chances of a retaliation complaint are minimal.

My friend Dana Pearl is very passionate about this issue and, as a former EEOC Investigator probably has much better insight into this issue from a bigger picture perspective than most of us. She raises a good point in saying that all too frequently managers, when faced with a sexual harassment complaint, tend to look at it first as a false complaint rather than taking it seriously to begin with. My experience has been slightly different, but I suspect that is more of a sampling issue as most of my clients seem to come to me as a result of having had an EEOC complaint or at least the threat of one. In those cases, people tend to take complaints more seriously after that. Still, I have seen enough of what she suggests to believe that there is merit in what she says.

The hard data tend to support her as well. Research suggests that false complaints occur only about 1% of the time. This tends to support my belief that people file sexual harassment complaints to get the harassment to stop rather than to sue someone. Still, the laws and the Supreme Court’s stance on retaliation leave the system vulnerable to abuse. I have had two cases that just didn’t feel right but there was no way to prove any malicious intent in the complaints. In each case you are left having to deal with the complaint as a legitimate complaint even though that may not seem quite fair to the accused.

I think there is a fine line that we walk in many of these cases. We need to make sure that the punishment in commensurate with the offense. I have seen a company that refused to fire a sexual predator and another that was ready to fire a man because he called a female coworker “Babe.” In my mind, the damage done in each of these examples is equivalent though it may take a different form. We should be creating environments where companies are encouraged to provide a respectful workplace for all employees rather than one where everyone is so paranoid that they are afraid to talk to each other. The ways we do that is by fairly and consistently dealing with every complaint and by protecting the rights of everyone involved, including the accused.

All of this leads us back the point that we need to take every single complaint seriously and we need well established procedures for handling complaints that we follow judiciously. This goes a long way to establishing a perception among employees that the company is committed to providing that respectful workplace for all employees. Do false complaints occur? Yes…just not very often. That should be the last thing on your list of possible explanations for what actually happened. Chances are, if you do a fair and thorough investigation you will find the answer before you get to the end of your list.