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Responding to sexual harassment

One of the most explosive workplace topics to surface in 2017 is sexual harassment.

In a stark reversal of the past, victims have been unafraid to come forward, exposing offenders and the workplaces that protected them.

Companies can longer tolerate cultures that wink at bad behavior. The attitudes and consequences surrounding harassment have shifted, the financial and reputational risks too great.

The Central Penn Business Journal convened a panel of leaders and experts to talk about the steps involved in keeping workplaces free of sexual harassment and in responding to potential incidents.

The discussion was moderated by CPBJ managing editor Cathy Hirko and was part of CPBJ’s sponsored roundtable series. 

CPBJ: It seems everyone is talking about sexual harassment. What kind of conversations are you hearing in the workplace and how are you addressing it?

Kelley Kaufman: This is something that we deal with on a relatively regular basis for employers. We are getting more questions like, ‘What can we do to make sure our policy is what it should be? What training can we put into place? Where can they take concerns if they have them? What steps need to be taken to address issues when they arise?’ We have seen employers getting more internal concerns raised and helping them work through them. It’s something that is always a part of our practice as labor and employment counsel for employers. But we have seen a little bit of an uptick on calls from employers saying, ‘I’ve got an internal report. I want to make sure I’m doing the right thing. What steps do we need to take?’ and helping them navigate that process.

Karen Anuscavage: We have a policy in our handbook, and we ask employees to read the handbook every year and sign off on it. If people don’t feel like they can talk to their manager – if it’s a female and they’ve got a male manager and there’s a male who is harassing them – they can talk to human resources. They can talk to me. We have also put our chairman of the board’s contact information on our employee portal. They can talk to the president of the company, as well. We are looking into getting a hotline. Those are anonymous.

George Nahodil: We have a curriculum that our associates are required to go through, a core values training, and sexual harassment is part of the training every year. We also have a hotline, an anonymous call that goes to our internal audit group. The internal audit group works with HR to do an investigation. It’s an anonymous investigation. We’ve also put some things in place to make sure that we’re prepared, based on our attorneys’ opinions and recommendations.

It’s also having an open-door culture. We have 1,000 employees. A teller can walk in and talk to the president. And then training your management to be able to identify when there is an issue. Even if it’s the smallest thing, you need to go to HR and have it investigated.

Claudia Williams: It’s a really wide range of responses between, ‘Yes, these are our values and we want people to exhibit behaviors that reflect our values,’ to ‘Everybody’s just too sensitive and can’t we just have fun.’ What we’re trying to say is, ‘Yes, have fun, and have those fun conversations, but know your audience.’ You can’t have the same relationship with every single person at work.

CPBJ: Women and men, but women in particular, are probably the most vulnerable to harassment when they are just entering the workforce, as well as when they take on internships.

Williams: As women get older and more confident and more secure, they’re less likely to accept something that doesn’t feel good. In our 20s when we’re starting out, we’re trying to make a name for ourselves; we’re hesitant to make waves because we don’t want to be ‘that person’ in the workplace. So it’s a tough juxtaposition.

Most companies aren’t great at on-boarding employees. An on-boarding plan is a plan for managers to be accountable for making sure their new team members get integrated into an organization. There needs to be an educational component as well as a cultural integration into an organization.

Nahodil: We have an on-boarding process that incorporates making sure that people are aware that there’s an open-door policy across all levels of management. And then our core values – trust, respect – and pushing those core values to people in that first week of employment. We’re talking about how we expect them to act and how we expect them to hold us accountable for how we act.

Kaufman: It’s setting expectations on both sides, what the company expects of its employees and what the employees expect from the company. What happens if you have that concern, who can you go to? Where is that open door, or where is that multiple-step reporting or complaint structure? It’s not just doing it at the beginning, but carrying it through in what you do on a regular basis, whether it’s annually or however an employer decides what best suits its training needs and its education needs.

Consider a mentoring component that gives not just the connections when you have questions, but also can be of help to someone new to the workforce, who doesn’t have the experience or maybe doesn’t quite spot the professionalism issues that an employer might otherwise want to see. Mentors can help shape some of those behaviors, including communications. We counsel employers to carry that through the lifecycle of employment.

Williams: Companies have no problem investigating and taking swift action against poor performance. But when you have top performers who are bad actors, a lot of companies are more hesitant because they’re afraid of the financial hit. What we are seeing now is if we take the ostrich approach and bury our head in the sand, it’s going to cost us exponentially in the long run. And it’s not just the company; they will go after the people who knew. I find myself saying to clients, ‘How does your name look in print next to the words sexual harassment?’ I think we’re going to see companies being more willing to make tough decisions when it comes to their top performers, not just their poor performers.

CPBJ: What kind of risk does it pose for a company when you know about the harassment, but you’re not getting any formal complaint, no one’s calling the anonymous number? What are some proactive steps that a company can take?

Nahodil: It’s a double-edge sword. There could be an incident, and HR isn’t permitted to talk about what actions were taken. So, you can have the masses saying, ‘Well, I’m not going to say anything because they’re not going to do anything anyway.’ We can’t come out and tell you that we did this against XYZ person, and we took corrective action. There may be even times when someone’s been terminated because of it. We have had what I think could have been construed to be sexual harassment where we have terminated employees, but no one knows except for the two people or three people who were involved.

Williams: Part of the good thing with that, though, George, is that when you’re doing the right thing, the actions speak for themselves, because if you aren’t taking the action, you would have two or three people who are telling 1,000 people that you didn’t have their back.

Anuscavage: I’ve dealt with email harassment, and we found out about it during the exit interview. But the person that was sending the e-mails was still in the company. There are things you can do by monitoring email. You let that person know you’re monitoring their email. You don’t let them know when.

Kaufman: To combat that idea of ‘this is kind of the way it is, just avoid so-and-so’ is to build a culture of buy-in at all levels – senior leadership, managers, your boots on the ground people – that our policies are being followed. It’s having managers who are willing to step in, and if they need to address something, address it; if they need to raise it up to HR or senior leadership, they do, and they understand that obligation.

You can close the loop with the people involved in the investigation – the person who initiated the complaint or the report – to let them know that we have done an investigation. We have reached a conclusion. We’ve taken appropriate action. A little bit of that closing the loop can go a very long way, certainly for the person who’s made the complaint, because then they know they’ve been heard.

Williams: We also need to remember that people are human, and we’re going to make mistakes, and there’s a big difference between making a mistake and learning from it and engaging in repeated conduct over a period of time. That’s not a mistake. That’s a problem.

Especially as people move up the ranks in leadership, I encourage them to identify their accountability partners that can help save them. We have a lot of office parties. We have holiday parties. We have mixers. We have alcohol. Sometimes people take it a little too far and do things that they wouldn’t otherwise do if they had their wits about them. Where’s the person who will grab me by the hand and say, ‘You know what? You probably shouldn’t have that next drink. Why don’t I take you home?’ Instead, what I’ve seen so many times is people standing on the sidelines watching the train wreck happen, and people lose jobs over it.

Nahodil: That’s about leadership. You’ve got to make sure that you have leaders in your organization who are going to step in and say, ‘That’s inappropriate and you really can’t do that. And if I see it again, I’m going to have to document that.’

CPBJ: But it can be really hard for the person who doesn’t have power to speak up when they are being harassed.

Nahodil: It boils down to having an HR department that is open, that when people come to see them, whatever the circumstances are, no matter what they need help with, that people are comfortable going to them. But there are people that are hard to approach. That’s where I think the HR department becomes really important, that they have people in HR who are connected to other departments in the company.

Anuscavage: I will tell you that HR departments are so different from when I started in human resources. Human resources was that ‘Oh, my gosh, don’t go there. We’re going to get in trouble.’

I work very hard to get out every day in to the company and make myself present. I talk to everybody. And if people are still afraid to come to me, somebody who is being harassed, they’re talking to somebody else. So hopefully that person that they’re talking to, they’re getting some good advice or that person comes to HR. That’s usually how I’m finding out about it. It’s usually not the person being harassed. It’s usually the secondhand information. And you do have to vet that very, very carefully.

CPBJ: What is your vetting process?

Anuscavage: If it’s coming to me secondhand, I talk to that person and thank them for coming to me. And I ask them to keep everything confidential. And then I go to the person they are talking for, and I start my due diligence and my investigation process and talking to them one-on-one, let them know what the process is, and that if they want to make a formal complaint, please do and feel comfortable about doing that. Typically, it will come out. They’re going to tell you because at the end of the day, they know that it’s the best thing for them, and it’s the best thing for the company.

Williams: Karen is describing a great HR brand. What happened over a period of time was HR, especially in large companies, became so process driven. They took the people – the human element – out out of human resources. And they lost that connectivity. The pendulum is starting to swing back. HR is saying, ‘We really are here for all of the people, and it’s our job to help teach leaders how to be accountable and hold other people accountable. And it’s our job to help employees know they have a resource in us.’

CPBJ: What about arbitration in comparison to a lawsuit? What are some of the pros and cons?

Kaufman: It comes up from time to time. There are some employers who will pursue an agreement to arbitrate disputes with employees to avoid – at least the goal is to avoid – having to go through the lawsuit. And the idea often is to minimize the time and potential costs associated with trying to resolve a claim. It relates to the idea of confidentiality being a part of the process. And that is something that’s a really difficult proposition on both sides. You’re seeing that come up in the news, for example, in a settlement agreement, whether or not it is permissible to include a confidentiality provision. There are two sides of that issue. The employer side of it is that settlement, for example, is a vehicle to try and resolve something early. Confidentiality is going to be an important part of an employer’s mindset. Confidentiality, if that’s off the table, is probably going to impact whether settlements happen at all or at what value.

Williams: Victims may not necessarily want that to be public either. So there are considerations for victim privacy, as well. And I would say the avenue by which claims and complaints are resolved is not as important as the consequences that accompany findings of bad acts occurring. The Roger Ailes problem, for example, was claim, payment, claim, payment, claim, payment. No corrective action. No accountability. When settlements lack consequences we are enabling behavior to be repeated.

Nahodil: Leaders don’t want to be in a situation where you’re being accused of not doing something. There was a point in time when people let things slide because no one was really being held accountable. Today, from my perspective, I’m going to be held accountable for those actions of an employee, and I am going to take action against that employee. And I don’t care who you are. And I would expect our board to take action against me if I would ever do something like that. And partially because they have a fiduciary responsibility to do that, and they could be held liable.

The victim is the one, from my perspective, who makes that confidentiality agreement important. If someone did something against me that was inappropriate, I wouldn’t want it to be all over the newspapers.

CPBJ: What are measures you can take so you don’t get to the point that someone is filing a claim?

Kaufman: Policy, training, buy-in, and follow through.

Williams: An organization needs to have clearly-defined values so that people know what matters. And they need to define the behaviors that reflect those values and shape those values. And they need to identify the consequences for the failure to exhibit the behaviors that reflect the values.

CPBJ: What do you do in a case where you find out that the accusation was false?

Kaufman: That’s a difficult one. You have the internal complaint, and you do the due diligence and the investigation. You’re going to determine that the complaint is founded or that it’s not founded. And you can run into situations where perhaps it was not a good-faith complaint. There’s a difference between that and someone having a concern and raising it and it is looked into, and it’s found that there is no, for example, violation of the employer’s anti-harassment policy.

The appropriate response is to close that loop on your investigation. You’ve taken it seriously. But do some education for everyone involved as to what is the expectation, what the policy means, and the expectation is no retaliation for someone having raised their concern in the first place or for having participated in that investigation.

That’s a really important piece of making sure people feel comfortable coming to HR, even if it ultimately ends up being determined, after investigation, to have been an unsubstantiated complaint.

There are situations where you may have a complaint made in bad faith, meaning that it is knowingly false. And employers have to be very careful with that, because there can be concerns of retaliation that spring up from considering action against someone who has raised those concerns or participated in that process. It’s a very difficult situation.

But make that distinction. There can be a good-faith concern that is ultimately determined to not be harassment, for example, or at least not the type of harassment that we’re talking about as unlawful. It might be something that needs to be addressed. But there’s a difference between that and a knowingly false accusation.

Nahodil: For some people, saying the F-word is a normal thing. Other people are very offended by that. Other times you have people that might say, ‘Oh, I love your hair.’ Is that sexual harassment? Our core curriculum has a sexual harassment policy that actually identifies what is and what isn’t sexual harassment. But sometimes you have claims where someone is saying, ‘They told me I wore too much makeup.’ Then you’ve got to go back and educate the person. Someone may have the F-word slip out. It happens. Someone may compliment you. It happens. And they’re not truly harassment cases. They are really situations where you need to have discussions on both sides.

Kaufman: Situational awareness goes a long way in the workplace.

CPBJ: Karen, you mentioned that you get to know the employees. How important is that daily interaction? What can a manager do to be more aware of what’s going on in a company?

Anuscavage: I think it’s just getting out of their office on a daily basis, and don’t make it 10:00 and 2:00 because then it becomes a joke. This morning I tried to get in early because I know that we’ve got some folks that start at six in the morning. And I’ll just go get a cup of coffee or whatever it is. And I’ll just sit down with them and just say, ‘Hey, what are you up to?’ I will make notes if somebody mentions something to me. Because when you make those personal connections, and then you bring it back up in conversation a month or two months or even a year later, you continue those conversations, they know that you care. That’s huge for human resources.

CPBJ: If your HR department is based out of a corporate office, how are you reaching out to some of these branch offices that could be more isolated?

Anuscavage: I did work for a much larger company that had an army of human resources folks. And they had specialists that actually were – they went out to all of the offices. I would visit the satellite offices every month. They knew I wasn’t coming there because they were in trouble. They knew that HR was coming just because. And they knew that if they had something that they needed to talk about, they didn’t have to wait until I came back.

It’s important to have the senior leaders go out and meet with them and even travel with them. It makes them feel like they’re part of the company.

Williams: And we should capitalize on technology. We can FaceTime, Skype, Zoom. It’s about building the connectivity. And we have really inexpensive or no-cost ways of doing that now when we can’t be physically there all the time. And if we aren’t doing that, we’re missing something.

Nahodil: We do exactly what you said. We have an assigned HR person. But then we have a regional manager that visits the branches on a weekly basis. They have avenues to communicate if they’re in an uncomfortable situation.

CPBJ: Anything else to add?

Williams: I’m the youngest of four girls. My Italian-American father desperately wanted a son. And so he nicknamed me Clyde. And he called me Clyde for the rest of his life. He taught me to golf and fish. And so I was the proverbial tomboy. Having four girls reshaped his thoughts of what he wanted for his daughters. He wanted to make sure his daughters were independent, self-sufficient, didn’t have anybody telling them what to do or when to do it.

The point is, this is something we can learn at any age. It’s building self-awareness and sensitivity and bringing those things to the workplace. It’s never too late, and it’s something we can always learn and build on.

Nahodil: Every company should be doing something to raise the awareness for their associates and do some kind of educational program to help with that awareness so that people are comfortable. It’s also important for people to stand on their own two legs, and they have to perform and be professional and be courteous and be kind. I don’t care what color you are, what gender you are, what your situation is, we should all treat each other with care and kindness.

Anuscavage: Have your handbook in place. Follow best practices. Be accessible to your folks. Those are the biggest things that you can do for your company. Everything else will come in placeMake it OK for people to come to you no matter who it is. Just make it okay.

Kaufman: When you have those tools in place, those resources, whether it’s policy, training, commitment, it’s important to truly embrace and understand those tools. Receiving a complaint is not a bad thing because you get the opportunity to address concerns, whether it may seem like the most trivial thing to something that seems incredibly alarming. Even at first blush, treating them all with equal importance and doing the due diligence is the best thing that you can do. One, because maybe you can identify a problem and resolve it before it ever becomes a big issue. It’s something you want to address as a workplace, and to foster the kind of culture and environment that you want to have.

Employees then see that and know it and know that they can expect that respect and that follow through.

Williams: And when people have the right kind of workplace relationships, it’s easier for us to go and say hey, that made me a little uncomfortable. And for the person hearing it to say I’m sorry; I didn’t mean to make you uncomfortable; I’ll keep that in mind. And it’s as simple as that.

Publisher’s note: This sexual harassment discussion was part our sponsored roundtable series. Have an idea for an upcoming roundtable? Please contact Publisher ShaunJude McCoach, smccoach@cpbj.com

The Panel

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