HR Connection: Employers can’t avoid sexual harassment claims by practicing gender discrimination

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I recently had the opportunity to spend a few hours with a good friend, who also happens to be an outstanding labor and employment attorney. Because he lives several hours away, we don’t get together as often as we’d like, so when we do connect, we run through the gamut of topics: spouses, children, father/son and father/daughter relationships (both as the fathers and the sons), the imminent birth of my first grandchild, work and a host of employment law issues. So, of course we spent a lot of time discussing sexual harassment and the #MeToo movement. (If you’ve never spent a Friday night with a couple of employment law geeks discussing the latest trends and issues, you have not fully experienced life!)

We discussed my recent articles on this topic, “Sunlight and Sexual Harassment” (Dec. 2017) and “A Paradigm Shift Needed on Sexual Misconduct” (Jan. 2018); we also discussed how the world has recently awoken to a Hollywood-sized spotlight shining on sexual misconduct, and how “employers are now facing a beast the likes of which have seldom been seen before.” Many employers don’t know what their specific “beast” looks like, because it’s still hiding in the shadows. However, they should know that if they don’t take the issue of workplace sexual misconduct seriously — and don’t view it and their workplaces through the high-powered lens necessary to identify instances that may have been overlooked in the past — they are feeding their beasts every day.

Then my friend asked a somewhat rhetorical question that stopped me in my tracks. “How many employers will try to handle their beast on their own, and not only fail, but create a companion beast that will exacerbate the issues and exponentially increase their potential liabilities?” (Thought bubble visible over my head: “wait…what?”) Then I got it! He’s absolutely right, because I do it all the time at home. It happens within minutes of when my wife says, “are you sure you know how to fix that?” and I indignantly respond, “of course I do!” Inevitably I create an often even bigger problem to go with the original issue.

We compared mental notes and found that we’re having the same conversations with (primarily male) employers:

Employer: What the hell is going on with all these sexual harassment claims I keep hearing about? And, what exactly is #MeToo?

Me: Sexual misconduct has always been a serious issue in workplaces, but now victims are coming forward like never before. Much of the coverage is because the men involved have been accused of using their wealth, fame and power to do some shocking and repulsive things to people.

Employer: Right, but now being accused means they’re automatically guilty, whether they did anything or not. One accusation, true or not, and they’re ruined.

Me: It sounds like you’re concerned for yourself and your business.

Employer: Absolutely! I’ve thought about it and decided I’m not going to be alone with a woman anymore. No private meetings, no lunches, no anything. I won’t even stay in the office if it means I’ll be there alone with a female employee. And, it’s all business from now on. No more personal conversations, jokes or being connected on social media.

Me: Is that your policy for all employees, or just women?

Employer: Just women, is that a problem too?

You’ve just witnessed the creation of a companion beast, and its name is Gender (sex) Discrimination. Then, if the employer applies this new policy to an employee who has recently complained about sexual misconduct, a third companion beast, Retaliation, is born.

According to Equal Employment Opportunity Commission (EEOC) statistics for New York State, in fiscal year 2017 retaliation (46.4%) and sex discrimination (30.9%) were the top two charges received. With scenarios like this playing out in workplaces across the state and nation, it’s easy to imagine the number of retaliation and sex discrimination cases skyrocketing very soon.

So, what’s an employer to do? It’s actually a very simple concept: the most effective way for an employer to protect the organization is to protect their employees. The hard part for some is putting the concept into practice.

Protecting employees may mean something slightly different for each employer. But, in general, a multi-pronged approach will be necessary. For many employers, the first step will be a culture shift: accepting that sexual misconduct (including sexual harassment, discrimination, assault, and retaliation) happens in their organizations and resolving to address and eliminate the root causes of these issues. Root causes often include allowing and even participating in inappropriate comments and actions, as well as casually dismissing the harassing behaviors of an employee with, “don’t pay any attention to him, he’s harmless.” The goal should be eliminating all forms of sexual misconduct in the workplace and promoting an environment where everyone is treated with respect.

At the same time, management should ensure the proper tools are in place. Creating or updating employee handbook policies that prohibit all forms of discrimination, harassment and retaliation is vital. Then, these policies must be fully and consistently enforced, regardless of who is involved. Also important is a written, easy-to-follow complaint procedure that ensures every complaint is taken seriously. Next, establish a process to initiate a timely investigation whenever a complaint is received so that all claims are properly investigated.

The third prong is education. Providing the least expensive and least disruptive training to supervisors and employees — and crossing off “sexual harassment training” on a mental compliance checklist — will not protect the employees or the organization. If sexual misconduct is happening in the organization, you should demand the training be disruptive or nothing will change. To protect the employees, training must be meaningful, informative, interesting and memorable, with everyone — from the CEO/president/owner to every part-time employee — required to actively participate.

Taking the necessary steps to protect your employees from sexual misconduct will not be easy or inexpensive. But, failing to protect employees is guaranteed to be disastrous for everyone.

Frank A. Cania, M.S.Emp.L., AWI-CH, SPHR, SHRM-SCP, is president of driven HR – A USA Payroll Company. Located in Pittsford, NY, driven HR provides human resource consulting services including HR audits, outsourced HR management, employee handbooks, employee training, and a variety of other services. Frank concentrates on wage-and-hour, FMLA, ADA, Title VII, and Form I-9 compliance, as well as workplace investigations. This article is brought to you by the Rochester affiliate of the National HR Association, a local professional HR organization focused on advancing the career development, planning, and leadership skills of HR professionals.