Sexual Harassment, Part 2
When lawyers think about sexual harassment, they tend to frame their thoughts based on cases they've handled or discussed. Usually this involves a woman being harassed by a man, although there are the rare cases where men have complained about harassment from women or from other men. These are the minority of cases. Although the advice that follows is framed in terms of being alert to claims of sexual harassment of women, the suggestions are applicable to any group of employees.
Often employees do not come right out and tell a supervisor or manager that they feel harassed by the conduct of another employee. Instead, they may take an indirect route. This is particularly common when an individual isn't well aware of the institution's policies, or where they feel disempowered. Sometimes the message to employees is that a particular supervisor is "all powerful" and that a challenge to that supervisor or manager would be futile. In those situations employees may try to take a less obvious path to resolve a bad workplace situation. They may want to transfer to another shift, another wing of the facility, or take some other approach to getting away from the person they view as their harasser. Frequently they won't tell the person they feel is harassing them, or anyone else, that they're feeling harassed for fear of retaliation.
Whenever an employee asks to transfer to a different shift, to a different supervisor, or a different working environment, one of the questions that must be asked is why. If the employee doesn't sound wholly committed to their answer, if they give off body language that suggests they aren't being truthful, or if they cannot meet the supervisor's eyes when having that discussion, it is a good idea to ask "do you have a problem in your workgroup?"
Some employees don't want to make waves or cause trouble, and they think that because an individual or co-worker has a longer history with the company that they are automatically more valued. So where a male co-worker is constantly hitting on a female co-worker for dates, attention or affection, the harassed employee may simply ask for a transfer as a way to obviate the sexual harassment.
This doesn't mean that a supervisor has a duty to create a case for harassment where the employee isn't forthcoming, but rather, that the supervisor has a duty to document that the employee was asked, and denied any harassment by co-workers. This is important because scores of sexual harassment cases involve multiple internal job transfers with the plaintiff making the argument that she was trying to alert the company to the hostile environment without filing a charge of discrimination.
Good supervisors have good relationships with their employees, but those relationships should not extend beyond the door of the office. Although frequently people get together for drinks and to socialize, an occasional get together with all the staff must be distinguished from "come have drinks with me." If a supervisor or manager spends time and attention on an employee who reports to them, this is a dangerous warning sign.
Similarly, where there is dysfunction in a work group, where people don't work well together, one of the things that has to be investigated is whether one person or another is engaging in conduct that is offensive or harassing. It doesn't matter if its jokes, inappropriate touching, favoritism shown on the basis of sex or race, or just a boorish attitude. If you have a problem in a work group, the company suffers. The public image of your organization suffers. You have to address it.
Finally, once every two years, or more often if needed, every employee should receive training on how to present a complaint for resolution. If an employee has a tough work environment or a problem with their boss, they should be reminded periodically that the sexual harassment policy is there for them. It is not a substitute for doing the job right. It is not a "get out of jail free" card for substandard performance. It is, however, a way to help the organization correct behavior that is offensive or troublesome. And every complaint is an opportunity to improve the organization. That should be the message. And everyone must be told that no one will ever be retaliated against for making a complaint of sexual harassment.
In my next blog I'll detail how to conduct a sexual harassment investigation, and how not to.