Tag Archives: sexual harassment

Be Afraid, Be Very Afraid: Anything in Your Past Can and Will Be Held Against You (Even Without Corroboration You Did It)


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My last post on the Senate confirmation hearings regarding the nomination of Judge Brett Kavanaugh to be a Supreme Court justice went live on September 10, 2018. Two days later, on September 12, an anonymous claim surfaced that he had sexually assaulted a teenage girl when he was in high school. Over the last two weeks, we’ve learned his accuser is Dr. Christine Blasey Ford of Palo Alto University.

Dr. Ford alleges a single instance of sexual assault more than 30 years ago when Judge Kavanaugh was still a minor and both of them were in high school. Many of the details surrounding her claim remain hazy, including the date (and even the year), the location, how many people were present, and who they were.

I do not mean to imply that the allegation does not involve a claim of serious misconduct. It does. But Dr. Ford’s delays in making this allegation, Senator Dianne Feinstein’s further delays in publicizing it even to other Senate Judicial Committee members, and the fact that Dr. Ford and her attorney have spent many days negotiating her appearance before the Senate Judicial Committee, all make it seem that the drama was primarily raised for political reasons.

As of this morning, September 24, 2018, when this post is published, it appears that Dr. Ford will testify about her assault charge on Thursday, September 27, before the Senate Judicial Committee. So as I write this, we don’t know the end of this story.

Dr. Ford appears to be a respected member of her professional community, just as Judge Kavanaugh is of his. When two opposing witnesses are both credible, and when the facts are so fuzzy, it is very difficult to ever determine the truth, even if they both testify under oath. Investigating any situation that occurred more than 30 years ago is challenging under the best of circumstances. Refuting—proving the negative of—a vague allegation about something that happened so long ago is almost impossible. (Perhaps this is why Senator Feinstein didn’t publicize the claim earlier.)

Based on what has been made public thus far, all that Judge Kavanaugh can say is what he has already said—he never behaved like that. He can’t claim he wasn’t at a particular place because the place hasn’t been identified. He can’t obtain denials from other witnesses, because the witnesses haven’t been clearly identified, though two males and one female who may or may not be people the accuser has mentioned have denied any knowledge of Judge Kavanaugh behaving in this fashion.

One of the most distressing aspects of this case for me is the grievous harm that can be done to a person’s lifetime reputation with so little evidence. In today’s 24/7 news cycle, social media publicizes every allegation almost instantaneously, and often presents these allegations as the truth. Things we did—or are alleged to have done—long in the past, in times and places we don’t even remember, can haunt us in ways these incidents never did before. We essentially cannot outlive anything we’ve ever said or done. Even if we deny we ever said or did it.

In some situations, when many witnesses allege someone engaged in similar wrongful behavior, as in many of the recent #MeToo claims against public figures, we can comfortably conclude that the misconduct probably happened in at least some of the times and places claimed. But where there is only a single wrongful act alleged, and when that act supposedly occurred over 30 years ago, it is hard to accept that the incident should have an impact on a person’s future, unless there is some further corroboration.

“I believe the woman” seems to be the accepted response to all claims of sexual harassment and assault these days. Though most allegations of sexual misconduct have some basis in fact, I have personally investigated at least two cases in which women did not tell the truth. I am therefore reluctant to automatically believe the claimant, unless there is more than just her word.

In one case I handled, a female employee claimed that a high-level male employee had harassed her repeatedly. When I first learned of the complaint, I leaped to the conclusion it was probably true and started thinking about how the company should handle the man’s exit from the company. But within thirty minutes after I started interviewing the complainant, she alleged that at least six or eight other men had harassed her, all in vague ways (“he looked at me weird,” “he smiled at me in the stairwell”). It became clear after very little questioning  that she was paranoid and mentally unstable. She might have believed she’d been harassed, but she was not credible to a rational person.

In another situation, another female employee claimed that her male supervisor had harassed her in a retail store where there were multiple people present. None of the other eleven employees in the store had seen anything untoward. Moreover, her allegation was made on the Monday after the Clarence Thomas hearings, giving me a strong suspicion she’d made a false claim because of what she’d heard over the weekend. It turned out the accuser wanted more work hours than her supervisor had given her, and thought her complaint would give her leverage.

In addition to my personal experience, there are other, more public situations of wrongful accusations of sexual misconduct. One notable example was the false claims against the Duke lacrosse players. Those young men saw their promising careers go up in flames, because a lying complainant was supported by an unethical prosecutor.

I am not saying Dr. Ford’s claim is false. Maybe it is and maybe it isn’t. It is entirely possible her memory is as she has described and he has forgotten whatever happened between them. In that case, neither of them would be lying. The testimony this next week—if it takes place—might prove convincingly what happened, if anything. Although if we only have her memory and not his, I doubt it.

What I am saying is that before an allegation about a single 30-year-old act stops the career of a man who has no other such blemish on his record, we should require more than one person’s say-so. We should require other witnesses, or contemporaneous documents, or corroborating physical evidence, or something else that makes us comfortable ignoring his thirty years of exemplary behavior.

Because if we allow a single, ancient, unverified and unverifiable claim against an otherwise upright citizen to besmirch his reputation, then none of us is safe. Our fathers and husbands and sons are not safe from allegations of long-ago harassment. Any of us might be slammed by a claim that we made a sexist or racist or homophobic comment in the past. Whether we did it or not. Whether we’ve changed and matured or not. Whether what we believed at the time was what most of society believed or not.

Just ask Brendon Eich.

Is that the type of world you want to live in? I don’t.

LATE-BREAKING: As of Sunday evening, September 23, 2018, a second allegation has surfaced of sexual misconduct by Judge Kavanaugh, this time in his college days. In addition, Judge Kavanaugh has his old calendars which might cover time of the alleged high-school incident. Obviously, this story continues to develop.

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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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Bad Networking Advice to Young Women Professionals & Seven Better Ideas


gear-67138_1280A young woman I’ve been mentoring for a few years told me about a women’s professional forum she recently attended. She is not the type who sees gender issues in every office interaction, and, in fact, she didn’t have much interest in attending this women’s forum.

I come from an earlier generation. As a young female attorney thirty years ago, I was glad of opportunities to speak with older women about how they had handled problems in the workplace and in balancing work and home activities. I appreciated the stories they told of how they coped—with clients, with colleagues, with managers.

The working world is a (mostly) easier place for women now than thirty years ago. But I still believe there is a need for senior women to mentor more junior women. We can all benefit from hearing how people like us have survived and thrived in difficult circumstances—and every career has its share of difficult circumstances.

But some of the advice given at women’s forums is appallingly bad. At the conference my young friend attended, there was a session on networking. Many of the young women in attendance expressed their discomfort with the small talk that networking requires and wanted to know what to talk about.

What were they told? Compliment the women on their hair and shoes; talk to men about sports.

Why would senior women perpetuate this stereotyped view of men’s and women’s interests? Why would experienced women professionals tell their younger colleagues to focus on women’s appearance?

It so happens that my friend is a better athlete than most of her male peers. It so happens that if men were given similar advice—talk to men about sports and women about hair and shoes—they would risk charges of sexual harassment.

Why are we still segregating men and women with the advice we give them?

Here are some much better conversation openers:

1. When meeting someone at a conference, ask what they thought of the last speaker. Or if the introduction takes place before the sessions begin, ask what they hope to get out of the conference.

2. Ask if they’ve ever been to this location before—depending on the circumstances, you could ask about the city, the hotel, or the conference center. Then ask follow-up questions about what they like or dislike about the venue.

3. Try to find shared experiences with the person you are trying to speak with. You can use their clothes as a clue—if you are a runner, ask a person in running clothes if they know of a good running route in the area. But I wouldn’t comment on the “cute top” they have on. If you’re not a runner, stay away from the topic. Remember, the point is to find shared experiences.

4. Another technique is to build empathy. If someone drops something, pick it up, and say, “They’ve given us way too much to carry here.” If someone looks like they’ve lost something, ask, “Can I help you find something?” Be friendly and helpful.

5. You can also find ways to let the other person shine—if they made an intelligent comment during a meeting, let them know, and ask another question on that topic.

6. Once the ice is broken, ask where they grew up. Perhaps you’ve been to that city or state and can take the conversation toward sights you’ve seen there. Or comment on what you’d like to see there. Or ask what they liked best about growing up in that location.

7. If nothing else, talk about the weather. It’s safe. Religion and politics are not, unless you’re at a meeting related to those topics.

But avoid conversation about hair and shoes and clothing and any other personal attributes. At least until you know them better.

Remember, if you couldn’t make the comment to someone of the opposite gender, it probably isn’t appropriate for any networking situation.

For a list of questions that might help (though some of these seem outlandish to me for a first meeting), try 48 Questions That’ll Make Awkward Small Talk So Much Easier, by Aja Frost at TheMuse.com. Even if these particular questions don’t work for you, it is a good idea to have some topics prepared in advance when you know you’re going to have to meet new people.

What bad networking advice have you heard over the years?

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Favorite Firing: When a Customer Harasses an Employee


adult-15814_1280The usual adage in American businesses is “the customer is always right.” And usually that is true. I’ve posted on a few occasions about the need for many organizations to improve their customer service. But it isn’t always true. Sometimes the customer is dead wrong. Today’s “favorite firing” is about a case where the customer was wrong, and then an employee alleged she was treated improperly when she complained about the customer’s behavior. After the alleged retaliation, the employee quit. So strictly speaking, this is a constructive discharge case, not a firing.

The Facts: In Prager v. Joyce Honda, Inc. (Aug. 22, 2016), Nicole Prager, a 20-year-old receptionist at the Joyce Honda dealership, complained to her managers that a high-profile customer pulled on her shirt and revealed her bra. There was no doubt as to what had happened, because the incident was caught on the dealership’s surveillance tape.

Her managers discouraged her from filing charges against the customer because he was a really good customer who had purchased 20 cars over the years and regularly had his cars serviced at the dealership. Despite her managers’ cautions, Ms. Prager did file charges. In fact, once she made the decision to file, the dealership managers called the police and provided an office at the dealership where she could talk to the police. (Later, the customer pleaded guilty to offensive touching and paid a fine.)

After she filed the charges, Ms. Prager alleges that some of her her co-workers began behaving coldly toward her. In addition, she received two written warnings for leaving work early on two occasions. One of these occasions occurred prior to filing the complaint against the customer and the other was an incident after she filed the charges. She objected to the reprimands, saying they were retaliatory and that she had left work early before without being disciplined. Her managers said they reprimanded her because she had not communicated about her leaving early on these occasions, as she had in the past. Nevertheless, the employer offered to rescind the disciplinary warnings, but Ms. Prager resigned instead.

In her lawsuit claiming retaliation and constructive discharge, Ms. Prager alleged that the dealership had become a hostile workplace environment for her, which justified her resignation. The trial court dismissed Ms. Prager’s lawsuit, saying that employers were not responsible for the conduct of customers in the workplace. Ms. Prager appealed.

The Appellate Division in the New Jersey courts also rejected her complaint, although the Appellate Division said that filing a police report against the employer’s customer was a protected act. However, though she could state a claim for retaliation, she had not sufficiently alleged a retaliatory consequence in her complaint—she had resigned immediately after receiving the reprimand and the dealership had offered to make the reprimands go away. The court said

“no reasonable juror could find that conduct ‘so intolerable that a reasonable person would be forced to resign rather than continue to endure it.’”

The Moral: Any complaint of harassing behavior by an employee should be taken seriously. And once an employee complains, the employer must be careful not to retaliate. Those are givens. Moreover, managers should be supportive of employees who complain and who decide to take their complaints to higher authorities, whether those authorities be internal company investigators, administrative agencies, or external law enforcement.

In this case, reading the Appellate Division’s opinion is instructive. It is clear from what the court says that part of the problem was that this employee was young and inexperienced in dealing with harassment and the follow-up complaint process. Her managers did not help the situation—they did pressure Ms. Prager not to complain about a valued customer, though they ultimately did support her. This case is a good reminder that we take our employees as they are, and must adapt our responses in some respects to their unique circumstances.

The timing of the warnings to Ms. Prager was unfortunate at best, and possibly retaliatory, though the court held that the two warnings in this situation were not sufficiently retaliatory to support constructive discharge. The management rationale for the warnings—that Ms. Prager was not communicating with them—probably should have been dealt with through a verbal discussion, at least initially, saving the heavier discipline of a written warning for a later occasion more distant from the harassment.

Nevertheless, there is good news for employers in this case, namely that constructive discharge is difficult to prove. If managers show an ongoing willingness to work with an employee in reasonable ways, it will be hard for the employee to prove that the workplace is so intolerable that he or she must resign. While any disciplinary action against an employee who has complained of discrimination or harassment should be carefully considered, it is appropriate to hold employees accountable for their performance and for following reasonable company policies.

When have you dealt with allegations of constructive discharge?

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Holiday Parties: Party Like There Is a Tomorrow (Because There Is)


nix mistletoeOne of the things I disliked most about working in Human Resources was my role as social director.  For some reason, managers thought HR should plan any parties that the organization wanted to hold—recognition events, anniversary and retirement celebrations, and, of course, the annual holiday party.

It’s probably too late for this year, but if you haven’t already arranged your company’s holiday party, here are some suggestions:

  • Be sure you follow all applicable wage and hour laws. If employees are required to attend, then they must be paid. If the event is after-hours and voluntary, then be sure no one is penalized or downgraded for not attending. Voluntary must be truly voluntary. And remember that this month is a very busy time for many families.
  • Watch the singing, praying, and any other activities that might give a religious bent to the celebration. I remember a party where everyone sang traditionally Christian Christmas carols. Some people loved it, but non-Christians were made to feel very uncomfortable.
  • Remember that alcohol is not a good mixer with work. Unless your event is at the end of the work day, off company premises, AND you are willing to monitor your employees’ behavior and arrange for rides home for those who imbibe too much, you shouldn’t serve alcohol. Sorry, folks, but it’s not worth the risk of bad behavior at and after the event.
  • Avoid dancing and mistletoe. See above regarding alcohol. Combining alcohol with dancing and/or mistletoe is just asking for trouble. Your company’s anti-harassment policy remains in full force through the party, whether it is on premises or off.

You might be better off waiting until after the Christmas spirit has worn off, and hold an event to celebrate your company’s year-end results in January.

For more on holiday parties, see

Office Holiday Parties: Revel without Regret, by Anita Setnor Byer

Planning the Company Holiday Party: A Guide for HR, by Shaun Reid

Some Advice with Your Company’s Holiday Party, by John Hyman

Yes, Most People Really Do Hate (and Dread) Your Annual Holiday Party, by  Patty Azzarello

And for an old joke describing the degeneration of one HR manager’s attempt to throw a good holiday party, click here.

When have you seen problems related to a company holiday party?

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Sexual Harassment: Size Rarely Matters


Image from Forbes

Image from Forbes

If any employment law issue stays hidden “behind the corporate veil,” it is sexual harassment. Until the cover is blown, and the problem becomes public. What many start-up businesses and non-profits don’t realize is that sexual harassment issues can arise in workplaces with very few employees.

Why do sexual harassment laws matter to small businesses?

Small businesses usually operate informally and have few policies and procedures when they start. Moreover, the early employees are often friends or family members, and these relationships add complexity to the work relationships.

Still, if you are running a small business, you are at risk if you do not comply with sexual harassment laws.

Title VII of the Civil Rights Act, the federal law administered by the Equal Employment Opportunity Commission, regulates sexual harassment. Title VII applies to employers with fifteen or more employees. But most state anti-discrimination laws cover employers with just a handful of employees—five in California and four in New York, for example. City ordinances also impose requirements on very small employers in some jurisdictions.

Because most states look to federal law, even small businesses should follow EEOC and federal court interpretations under Title VII. But employers must also be aware of their state laws also—sometimes state law permits broader theories of liability or remedies (such as higher punitive damage awards) than federal law.

What’s the minimum that a small business should do?

A good place for small business owners to start is to read through the EEOC’s sexual harassment fact sheet, Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisors.

The law requires more of employers to avoid liability for a supervisor’s actions than for actions by co-workers or non-employees.

  • The EEOC position is that an employer is always responsible for harassment by a supervisor that culminated in a tangible employment action, meaning an action that results in harm to the harassed employee.
  • If the supervisor’s harassment did not lead to a tangible employment action, the employer is liable unless it proves that:
    (1) it exercised reasonable care to prevent and promptly correct any harassment; and
    (2) the employee unreasonably failed to complain to management or to avoid harm otherwise.

This means that as a business owner, you should communicate a policy against sexual harassment, provide viable methods for your employees to complain (other than to the alleged harasser), and promptly address any complaints of harassment. It is better to have a written anti-harassment policy, though orally communicating the policy might work, if you can prove the communication took place, for example, through staff meeting minutes.

But it may be difficult for your small business to develop a strong anti-harassment policy. Usually, such policies need two or more avenues for the employee to complain, in case one of the usual persons to whom complaints can be voiced is allegedly the harasser.

If you are the only manager in your business, how do you find a second person to take complaints? You may not be able to. In that case, you should have an attorney or a human resources consultant conduct an investigation into complaints that might involve you.

Unfortunately, that is likely to cost you. But litigation will cost you far more.

A few more cautions

If you do get a complaint of harassment in your business,

  • Investigate promptly, stop the harassment, and remedy any adverse employment actions against the complaining employee.
  • Keep the complaint confidential, to the extent possible, and
  • Don’t retaliate—complaints of retaliation are easier to make than the initial complaint of harassment, and harder to defend.

The Best Defense: Don’t Let It Happen

Although the anti-harassment policy and complaint procedure are important, the best way that a small business can avoid harassment complaints is by not permitting an atmosphere of casual remarks about sex and employees’ personal lives in the first place.

Even if the business started in a college dorm, the standards are different once the business becomes real. Even if the same people are involved.

Really.

I know it’s hard to accept that you can’t continue to treat your friends like you did when you were eighteen, but if you are running a business and providing people’s livelihoods, you need to act with maturity.

For more on this subject, see

Sexual Harassment Policy for Small Businesses, by Ruth Mayhew, Demand Media, on Chron.com

Sexual Harassment in the Workplace; Forming a Basis for Prevention and Management, by Caron Beesley, on SBA.gov

Even Start-Ups Need Anti-Discrimination Policies and Reporting Mechanisms, by Richard B. Cohen, on Employment Discrimination Report (Fox Rothschild)

When has an unprofessional atmosphere in the workplace caused you problems?

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