Managing Sexual Harassment Claims in the #MeToo Era


gear-67138_1280Now that I am only posting twice a month, I have less opportunity to comment on news issues that affect corporate management. But the #MeToo movement accusing many public figures in the entertainment and political world of sexual harassment has had an effect on other workplaces as well that is important to recognize.

I won’t list all the men (and occasional woman) outed for their past behavior. What is more important is how corporate managers and Human Resources professionals should respond going forward.

With the increased visibility of sexual harassment in a variety of workplaces, more employers are likely to see claims raised by their employees. The same was true in the weeks after Anita Hill’s allegations of harassment during the 1991 Clarence Thomas Senate confirmation hearings. Even though Senate confirmed Justice Thomas’s nomination to the Supreme Court, sexual harassment became a topic in many workplace discussions that year.

In some ways, corporations are ahead of politicians in addressing harassment issues. Ever since the Supreme Court’s decision in Meritor Savings Bank v. Vinson, 106 S. Ct. 2399 (1986), sexual harassment claims have been serious risks in the workplace.

And ever since the companion cases of Burlington Industries v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), employers have had a framework for how to minimize their exposure to claims of harassment based on the creation of a hostile work environment. Elements in that framework include:

  • Having a strong anti-harassment policy
  • Making it easy for victims to raise claims to someone other than the alleged harasser without fear of retaliation
  • Training all employees regularly on what the policy is and how to use it
  • Taking every claim seriously and investigating thoroughly, and
  • Taking appropriate action, if harassment is found.

And yet, even with these policies and practices in place, navigating harassment claims remains a minefield.

In the past thirty-some years, I have handled complaints against everyone from high-level executives to frontline employees. The #MeToo movement emphasizes that no one gets a free pass on harassing behavior.

I have dealt with everything from completely false accusations, to mentally ill employees alleging harassment because they are paranoid, to workplace flirtations and dating gone wrong (probably the most common problem), to quid pro quo demands in exchange for advancing a woman’s career, and even cases involving rape of a coworker.

When an allegation of harassment first arises, there is no way to know which situation one is dealing with. Sometimes the facts become clear very quickly, but other times the truth is hidden in murkiness. The standard is not “beyond a reasonable doubt” but what is “more likely than not”—is there a credible complaint of harassment and what actions are necessary to stop it from occurring again?

When the allegations of harassment are false, the male (99% of alleged harassers are male) feels wronged and his career can be damaged through no fault of his own. And when the allegations of harassment are true, the woman feels disbelieved and disrespected by the slow pace of a thorough investigation. When the allegations cannot be proven one way or the other, no one feels the process has worked. Whatever the outcome of the investigation, coming to the wrong answer, or not addressing the problem with appropriate action, taints the workplace.

So what are managers to do?

The best way to handle a claim of harassment has not changed in the #MeToo era from the steps outlined in Burlington Industries and Farragher. Take every claim seriously. Treat all parties involved with respect. Do your best to find the truth.

And above all else, make it clear from your own behavior that harassment in the workplace—harassment of any type—will not be tolerated. Stop the jokes, whether they be sexual or racial or homophobic. Treat every employee in the manner you want your loved ones to be treated at work.

In addition, in the age of smartphones and social media, recognize that anything you say or do might someday become public. Would you be proud to have your language or behavior show up on someone’s Facebook feed?

Once you as a manager are modeling the appropriate behavior, expect your employees to do the same.

It all comes down to company culture. Make sure yours does not tolerate harassment of any type.

What changes have you made to how you handle sexual harassment claims because of recent publicity on the issue?

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Dealing with the Flu and Other Infectious Diseases in the Workplace


FluIQThe cost of the flu on American businesses is staggering. One article states that the flu causes 100 million lost work days each year. Because about two-thirds of the time lost is taken as paid sick days, employers loss over $10 billion in productivity. Meanwhile, the other third costs employees $6.8 billion in lost wages.

This year’s flu season is one of the worst in modern times, according to most news reports. As someone who suffered through it last month (despite a flu shot in September), I am sympathetic to those who get sick. I was fortunate that my schedule allowed me to stay at home for a week, but many workers don’t have that flexibility. What should employers do to manage through flu seasons?

OSHA provides basic recommendations for those who don’t work in healthcare (who obviously need to use greater precautions). In general, OSHA recommends that employees exercise basic hygiene and avoid contact with those who are ill.

OSHA further suggests that employers do the following:

  • Promote vaccination
  • Encourage sick workers to stay home;
  • Promote hand hygiene and cough etiquette
  • Keep the workplace clean
  • Address employee travel concerns.

The CDC and NIOSH have published similar guidelines for employers.

Managers, how does your workplace measure up? At a minimum, employers should maintain high standards of workplace cleanliness and offer vaccinations free or at minimal cost to employees through medical plans. But how does your workplace culture handle employee absences and travel issues?

Too many employers set performance goals that do not tolerate absences that don’t amount to FMLA-covered serious health conditions.

allergy-18656_640For example, I never sought medical treatment for my illness last month and didn’t take any medications other than over-the-counter remedies. Yet for three days I was unable to concentrate on much, and I didn’t have any energy for several days after that, though I did get quite a bit of work done at home during my recuperation.

In fact, about 80% of sick employees go to work for part of all of the days they are sick.

Does your workplace make maximum use of flexible work practices? Granted, some jobs lend themselves more to flexibility than others. But where working from home, reduced or shifting hours, or other flexible arrangements are possible, are your employees encouraged to use them when they are ill? What about when their children are sick?

And do your leave policies permit machine operators, technicians, and others who must be in the workplace enough sick days to avoid spreading illness to others on your premises? Encouraging good attendance is important, but it shouldn’t be the primary measure of successful performance.

One employee in the workplace who misses two or three days from work is preferable to that employee infecting five other employees who then each miss one day. The cascading effect of contagion is much more costly than dealing with sick employees on a more humane and flexible basis. And, as the statistics cited at the top of this post indicate, the total costs are huge.

How do you think employers should balance productivity and flexibility when dealing with sick employees?

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Six Issues to Address Before Serving on a Non-Profit Board


sekulic-Vetta-Getty ImagesAt the start of the year, many people begin new terms as not-for-profit board members. It’s exciting to start working with an organization whose mission is close to your heart. And it can be helpful to your development of managerial and leadership skills. However, it’s critical that your expectations be aligned with those of the organization. Ideally, these expectations should be set before your term begins, but it’s never too late to clear the air.

Here are some issues to discuss before or during your orientation with the board:

1. What is the mission of the organization? How has it developed over time?

You may think you understand the non-profit’s mission because of how it presents itself to the community. Sometimes, however, the formal mission differs from what the organization actually does. Or over time, the organization has taken on activities that are only tangentially related to its mission.

For example, a hospital that has its roots in providing healthcare to the indigent might start offering wellness or fitness programs. These might be important for improving community health, but it might be that too many of the hospital’s resources are being pulled away from basic healthcare services.

It is critical that a non-profit remain relevant to its community and customers. But it’s also important that it not develop “mission creep” or move beyond what its governing documents permit. Know what the organization’s by-laws and mission statement say.

2. What measures of success does the organization use?

Part of the Board’s role is to articulate the success measures for the organization. But you should know how the non-profit has traditionally measured its performance. Is it number of people served? Donations raised? Quality of service and accolades from clients? All of these may play some role in the success of the organization, but know what the staff considers its performance measures.

Then, during board meetings, frame your questions and advice in terms of how to improve the organization’s performance toward its success measures. And, if you think something is missing, work with your fellow board members to implement new performance indicators.

3. What communications tools exist to help board members speak to the community?

As a board member, you should be an advocate for the organization in the community. Some non-profits have communications or marketing directors who are responsible for presenting the organization’s face to the community. Ask to see the marketing brochures and other tools used in these communications. Ask for talking points that the organization wants board members to make.

And if the organization faces a public relations crisis or significant internal or external changes, find out how the staff is responding, and ask whether and how they want board members to assist. You will get asked about these issues by your friends and colleagues who know you are on the board, so be sure you are prepared to help the non-profit and not hurting it.

4. What board development and/or assessment and corporate governance programs are in place?

Some organizations elect board members then let them serve for decades with little attention. These days, particularly at larger non-profits, it is important that the board have the skills necessary to advise the non-profit staff. Know how board members at your organization are assessed.

Another best practice is to have a board orientation for new board members. Ask to participate in any orientation that’s available. If no formal board orientation is in place, then ask to tour the organization’s facilities, ask for an opportunity to participate in the non-profit’s activities in a meaningful way (or at least observe them). Also ask for a knowledgeable board or staff member to review the recent financial history of the organization with you.

When an organization has three-year board terms, it is much like having someone in a corporate position for three years—the first year is mostly a learning experience, and the ability to contribute increases in the second and third years. Anything that shortens that learning curve benefits both the organization and you as a board member.

If a board member is not attending meetings, or is not contributing to the organization, then there should be a mechanism to replace them. Term limits are usually a good thing for both the organization and the board members. Help the organization to put in place term limits and/or an orientation program and board assessment program, if nothing is available.

5. What financial commitments does the organization expect of board members?

Some non-profits have a fundraising expectation of board members, and others seek only advice (though, of course, donations are always helpful). Know going into the position what the organization expects of you. And then meet or exceed those expectations.

Business Meeting

Flickr photo from thetaxhaven on Creative Commons

6. What else do you want me to know?

You were asked to be on the board for a reason. Ask what that reason was—was it your skill set or your perceived deep pockets or something else?

Also inquire about issues within the organization the staff want you to know. The Executive Director or CEO may want you to get involved in evaluating a particular department. The Chair of the Board may think there are issues with the staff. Have some one-on-one conversations with at least the head staff person and the board chair, if not before you begin your term, then soon after it begins.

You are a board member, act like one. It all boils down to knowing as much as you can about the organization and knowing what is expected of you.

What other questions would you add to this list?

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Succession Planning in Family Business (redux)


father daughterI haven’t written about succession planning in family-owned businesses in a while, but the topic continues to interest me. (It was a significant issue in the novel I wrote, Playing the Game.) When should a company founder select a family member as the next CEO and when should the founder look outside the family?

The first piece of advice is not to leave this issue until the founder is in poor health or ready to retire immediately. Any succession plan requires time to implement, and the more time the better.

If family members are interested in the business, then they should be groomed—without making any promises—to acquire the skills and experience necessary to run the company. This may require a rotation through several departments in the business, each lasting at least two to three years. It may even require the heir-apparent getting experience outside the company, either in the same industry or another industry, to broaden his or her skills. In other words, it can take most of a career to prepare the successor to become the next CEO.

It’s also important to keep your options open. Don’t just groom one successor. Find two or three, both family members and non-family members. Having options helps everyone know that the business is being cared for and that the person selected will be fit for the job.

Open communications are critical throughout the entire process. The founder, the potential successors, and other stakeholders (both inside and outside the family) should be able to say at any point, “This isn’t working,” or to outline problems that have developed.

Also, it is best if there are trusted non-family members involved in the assessment as well. An advisor such as an attorney or CPA or executive coach who works with the business regularly can provide input on the strengths and weaknesses of the potential successor that mom or dad may not see clearly.

For more information on issues to consider, see

“5 tips for smooth ownership transitions for family businesses,” by Arne Boudewyn, The Business Journals, Feb 28, 2017

“How Do You Fire a Family Member?” by Gabrielle Pickard-Whitehea, Small Business Trends, Apr 29, 2017

“Succession Planning in a Family Business,” The Wall Street Journal, May 9, 2017

“Is nepotism in the workplace ever appropriate?” by Stan Silverman, The Business Journals, Dec 5, 2017

For other posts I’ve written on succession planning, click here.

When have you had to deal with a difficult succession planning issue, in a family-owned business or otherwise?

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Happy Holidays: Take a Moment to Breathe


2017 has been a tumultuous year for many of us. As it ends, take a moment to breathe deeply. Savor and celebrate your accomplishments and joys.

pine-cone-2998064_640

Happy Holidays!

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Favorite Firings: Stray Discriminatory Comments by Management Complicate Litigation


operation-540597_1280In the Wolters Kluwer Legal & Regulatory newsletter for December 4, 2017, there were three cases reported that dealt with comments by management personnel about employees. In each case, when the employee sued, the employer was unable to get past a motion to dismiss or a motion for summary judgment. Thus, in all three cases, the company faced lengthy litigation that might have been avoided, had managers been more careful with what they said.

THE FACTS:

In Creese v. District of Columbia, Case No. 16-2440 (RMC), D.C.D.C., Nov. 11, 2017, a corrections officer alleged that he was fired because he was not “manly” enough. His supervisor had made a few comments such as, “[n]o pretty boys needed in jail, so you need to take your earrings out.” The judge found that plaintiff produced enough evidence of impermissible gender stereotyping to survive a motion to dismiss his Title VII and Section 1983 claims.

In Sestak v. Northwestern Memorial Healthcare, Case No. 16-C-6354, N.D. Ill., Nov. 28, 2017, plaintiff Sestak, a labor and delivery nurse, alleged age discrimination after she was discharged for cause. She claimed that an unidentified individual stated that “older nurses would have difficulty” complying with new guidelines because older nurses “are too slow and spend too much time with patients” and that one of her supervisors stated that “older nurses’ often have difficulty understanding when the mother and baby become separate patients.” The court denied the employer’s motion for summary judgment.

In Carter v. A&E Supported Living, Inc., Case No. 16-00574-N, S.D. Ala., Nov. 29, 2017, a nurse was removed from the shift schedule at a group home for intellectually disabled individuals and then sued for pregnancy discrimination. She cited supervisors’ comments to her as evidence that she was removed from her work schedule because of her pregnancy and/or the related “high risk” conditions that the supervisors believed her pregnancy presented. One supervisor stated plaintiff “was at risk to be hurt and [she] didn’t want that for her or her unborn child, for her baby; nor did [she] want to put the people that [the employer] serve at risk…” Plaintiff was required to provide medical documentation that it was safe for her and her unborn child for her to perform the duties of her position. The judge denied the defendant’s motion for summary judgment.

THE MORAL:

The general legal standard is that stray comments in the workplace do not automatically lead to violations of the discrimination laws. However, they can be evidence of a discriminatory intent. And, of course, the more egregious and frequent the remarks, the more likely courts are to find liability. I’ve written other posts (see here and here and here) about how supervisory comments can get their employers into trouble.

In each of these cases, the employer put forth nondiscriminatory reasons for the actions taken against the employee. But the existence of the supervisors’ comments about pregnancy or gender or age complicated the cases enough to let the judges refuse to grant the defendants’ dispositive motions. The employers may end up winning these cases, but they face lengthy and expensive litigation before they do. Settling the cases may prove to be the better option.

Moreover, in the environment we face today, with heightened sensitivity toward sexual harassment and discriminatory remarks, employers would be well advised to re-emphasize the need to avoid even casual comments about employees’ health, appearance, and any other topics that might touch on a protected status.

It’s a shame that we must be so careful in the workplace and avoid many topics of everyday conversation, but it’s the safest course. As demonstrated by these three cases decided by different courts in recent weeks, supervisory comments continue to present litigation challenges to employers. It is best to involve Human Resources and lawyers if there is any question about what topics are permissible to discuss.

What’s your opinion on the current state of conversation in the workplace?

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Coping with Implicit Bias in Mediation


workplace-1245776_640A few weeks ago I attended a training program for mediators on implicit bias. As the presenter said, we all see every situation we encounter through the lens of our own experience. That’s what gives rise to implicit bias.

One definition I’ve seen of “implicit bias” is “a term of art referring to relatively unconscious and relatively automatic features of prejudiced judgment and social behavior.” This sounds bad, but the presenter at the training program made it clear that he did not think implicit bias is bad or wrong or morally repugnant. In his opinion, implicit bias isn’t the same as prejudice. It is simply the lens through which we see the world. We can’t escape it, but we should be aware of it.

Whether it has a moral dimension or not, implicit bias does impact every step of dispute resolution. To begin with, our view of the world colors how we interpret the events that happen to us. Moreover, the lens through which we see events stirs up different feelings and reactions about what happened in each person involved—each one of us sees the world differently.

So what should mediators do about implicit bias?

Recognize and Manage Your Own Implicit Bias.

The first step in dealing with implicit bias is to be aware of it. As mediators, we should reflect in advance what aspects of the case might trigger our own emotions, as well as those of the parties. We need to be mindful of our own hot spots.

We can prepare ourselves before a mediation by setting aside our own problems and concerns, so that we can address the parties’ needs. Some mediators engage in other physical activity before mediating. Others practice meditation or other mindfulness exercises. The point is to open our minds to being empathetic to people who come from different perspectives than we do. We need to be ready to engage the parties where they are, and not where you are.

Mediators are supposed to be neutral and impartial. Managing our own implicit bias is critical to our value to the dispute resolution process.

Recognize and Manage the Implicit Bias of the Parties.

The next step is to understand others’ perspectives. As mediators, we need to manage the process and not let the parties act vindictively. But it is important to let their emotions into the process. Let the parties tell their stories.

Asking questions in a calm and respectful manner is a good way to determine what biases each party (and each attorney) brings to the dispute. Sometimes, the parties are less of the problem than their lawyers, so it might be necessary to explore the attorney’s perspective as well as his or her client’s .

As mediators, we have to assess whether it is more productive to have these probing conversations in a joint session or in a caucus. If the parties are working well together, it can be more effective to let each person tell his or her story, then ask the other “Does that ring true for you? If not, why not?” But if they are not behaving respectfully, or if emotions rise out of control, then separation is probably best. Then, however, the mediator must act as the interpreter of the story to the other side . . . which risks bringing our own biases into the discussion.

The key to dealing with implicit biases is to treat them as an unavoidable part of the equation. They aren’t good or bad, they are just another set of variables that will impact the process and the result. Remember that mediation is designed to let the parties resolve their own conflict—biases and all.

When has your implicit bias impacted a dispute you were trying to resolve?

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