Sexual Harassement by Email
DeidreFR5
230 Posts
I know this has been addressed before, but...
A female employee notified her supervisor (who informed her VP who informed me) that they received an unwelcomed email from a (female) coworker to the effect "they were really proud of them and they weren't just saying it to get in their pants - ha, ha, ha." The receipient didn't print or save the email. They stated they weren't upset about it, but they didn't welcome it (my words). They didn't want anything done, and wanted to address it themselves. The managers realize that since it was brought to their attention, they need to act on it. The problem is the receipent doesn't want the sender to know they shared the message with anyone. Any suggestions on our approach? Thanks.
A female employee notified her supervisor (who informed her VP who informed me) that they received an unwelcomed email from a (female) coworker to the effect "they were really proud of them and they weren't just saying it to get in their pants - ha, ha, ha." The receipient didn't print or save the email. They stated they weren't upset about it, but they didn't welcome it (my words). They didn't want anything done, and wanted to address it themselves. The managers realize that since it was brought to their attention, they need to act on it. The problem is the receipent doesn't want the sender to know they shared the message with anyone. Any suggestions on our approach? Thanks.
Comments
The company is liable, period, should she come along later and assert that she reported it and nothing was done. But, larger than that reality is the fact that investigating and acting are the RIGHT things to do, in addition to being the legal things to do.
Ask yourself this question: How quickly would you have wrapped your hands around the throat of this issue had it been a man who said that to the woman? I suspect you would have tripped over your desk. I would have too. Go to it!
I think it is ok to document the conversation, to suggest the recipient to have the conversation and to follow-up afterwards. Again, documenting the discussion. If the behavior repeats, then take more steps.
I don't think a full-blown investigation is warranted if the steps are taken as described. I would maintain confidentiality as long as the behavior in question has stopped.
Now, I could also argue that taking Marc's approach would probably result in one prong of the employer's affirmative defense getting crushed for failing to reasonably take corrective action (sorry Marc, I don't think your approach to corrective action in this case would be viewed as reasonable).
There you have it. I've played both sides. Fortunately, we have lawyers to advise in this sort of mess.
Gene
I guess we could just say "Oh, you know how girls are," and be done with it.
If I followed Marc's policy, and put on my old counseling hat that I used to wear years ago, it would go something like, "Hmmm, Cindy; you got an email from Candy who suggested something to the effect that she would like to get in your pants, or was not doing something in an attempt to get into your pants; and I hear you saying it was unwelcome. Let me see if I have this correct. I think I hear you saying you found it bothersome and you discussed it with your supervisor. So, I'd like to explore with you, if I may, and if you can tell me in your own words, exactly what was your level of discomfort and tell me to what degree you found it unwelcome, using a scale of 1 to 10." A prescription for disaster. Marc, it's a good thing yours is a non-profit and you can fall back on accounting. x:-)
be pervasive" Really? The US Supreme Court clearly stated in Harris v. Forklift Systems that to "maintain a hostile work environment claim, the victimized employee must show that under the totality of circumstances, the alleged conduct is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment."
Hostile and abusive? Not according to the sixth circuit in Clark & Knoop vs. UPS. This was just delivered last week and our attorney forwarded to me since it is clearly a landmark, precedent setting decision (that could potentially affect pending litigation we're involved with) on what DOESN'T amount to pervasive, hostile and abusive:
The sixth upheld a circuit court decision that it did not rise to this level in the case of one of the co-plaintiffs alleging that a supervisor at UPS:
-Placed his vibrating pager on her tigh and asked her if it felt good.
-Asked her what she had on under her overalls and she replied she was wearing a thong. He attempted to pull the back of her clothing to look down and see for himself.
-Showed her a cartoon of two people engaged in sexual intercourse.
The sixth said "while his harrassment was distasteful and boorish, it falls short of being sufficiently pervasive, hostile or abusive to support a legal claim of a hostile work environment.".
BAM! I'm going to home to grill sausage and peppers. My wife's picking up fresh hoagie rolls from the bakery.............
PEACE!
Do not forget that Sexual Harassment is a legal conclusion, not one for an employer to monkey around with and conclude or not conclude. Our obligation, under law, is to be proactionary and reactionary. And, reaction involves prompt and complete investigation, not simply trying to pre-suppose what the legal conclusion may be.
It is never sufficient or proper to pre-suppose that a court of law might do this or do that and therefore base our decision to act or not act on that presupposition.
The approach that will save the company's bacon is the one which involves prompt and complete response to ANYTHING that might be remotely considered sexual harassment.
As they say, just my humble opinion. x:-)
I realize this is taking on a different path than the original post, however, at what point do you, as an HR Manager in an organization such as mine with over 500 employees in two locations draw the line between what you will investigate wholly at substantial costs in terms of resources, man hours, lost productivity, the detriment in morale, etc and the non-sense that does not warrant such an investigation?
Like it or not, your standard of "pervasive" or "hostile" or whatever else you wish to benchmark and mine are not the same. As such, it is imperative to understand how and why courts of record in your jurisdiction are ruling in particular matters. To understand this is to understand the law.
Do you investigate a "damn you look hot in that dress, I'd love to get my hands on you" muttered by one peer to another the same way as you would a documented and corroborated case of quid-pro-quo which also resulted in a tangible employment action involving a supervisor and a subordinate? I think I know the answer and hopefully you can see where I'm going with this.
Let's face it. Not everything, simply because it has a sexual undertone or innuendo, rises to the level of sexual harrasment or hostile work environment. It is our job to objectively sift through the relevant facts and determine the best course of action. Hopefully this is done in conjunction with legal counsel.
Gene
I agree with that 100% and did not intend to suggest otherwise. But, it is never responsible to simply reach conclusions based on scanty, surface, perhaps inadequate information. The HR Manager who has the ability to get to the other end of an HR problem without due diligence is either a rare commodity or a damned lucky fellow.
Let me suggest, for the sake of argument, that manager A decides to not investigate this scenario. He makes that decision based on his understanding of how the courts in his region have ruled in the past and what level he thinks this could possibly rise to. Then he moves on to what he concludes are better uses of his resources.
Manager B decides to investigate the complaint. He spends the afternoon interviewing the relevant parties and goes a step further and speaks with several seemingly uninvolved peers of the woman who sent the email and several who have worked in her area for awhile. Manager B learns that several of those interviewed have heard similar remarks and one says the alleged perpetrator bought her a thong for Christmas and asked her to model it for her. One lady in the department says, "This is something that's gone on for years. Why do you think Lydia quit last year?"
Manager A equates the remark to one such as 'I'd like to get my hands on you' and concludes this is no big deal and quickly decides this is nothing that would rise to a level of pervasive or hostile. And he therefore spends his resources on planning the company picnic and posting the football pool results with a goal of getting to The Employers Forum. Manager B, however, is on the verge, perhaps, of saving the company a half million dollars. We can reach conclusions without analysis and investigation, or we can reach them through sifting through the facts, which is the definition of investigation. There is a thing called the tip of the iceberg. It is often our job to recognize it.
Although some may see it as a waste of resources, I would prefer to spend a day and a half as Manager B did.
Gene
A. Employees:
1. Any employee who believes that he or she has been subjected to any form of illegal harassment by anyone is encouraged to promptly tell the person that the conduct is unwelcome and ask the person to stop the conduct. A person who receives such a request must immediately comply with it and must not retaliate against the employee for rejecting the conduct.
The above is step one for EEs. In some cases, the alleged harasser is not even aware that the conduct is offensive or unwelcome. We encourage our EEs to communicate their discomfort and head things off early.
As I read the post, the offended EE wanted to handle it that way and I would encourage it. At the same time - I would document the discussion and make sure the offended EE followed up. If the offended EE was not comfortable or did not express her discomfort to the other EE, then I would follow up, again documenting all of this along the way.
As to the possibility that others have not spoken up, how can you even address that? This possibility existed even before the offended EE reported the email. You cannot deal with the possibility, just the reality. As Gene said, this did not rise to that kind of level for me.
We are duly bound to make sure our companies are not open to liability due to actions from our managers and/or ees. To accomplish this, we must diligently investigate claims we receive. While some may seem less "severe or pervasive" to the ee, it is harassment. In order to have an affirmative defense, we must investigate and take any action that is necessary, dependent upon our findings.
A agree with The Don that we cannot guess what a court or jury will deem as severe or pervasive. While it is a high standard (it has to be based on a protected class, it has to be unwelcome, it has to be so severe or pervasive a reasonable person would be offended (using the Mendoza/Borden standard), and it has to alter the terms and conditions of employment), everyday employers are faced with these claims and how the court or jury perceives the alleged misconduct. The only protection and arguments that the employer can make is that they 1) did not know because there was not a complaint and there was no information to lead them to believe any misconduct occured, or 2) that when they were informed, they immediately conducted a thorough investigation and took PROMPT REMEDIAL ACTION. You can't rely on anything else. So why would you take away your sure thing and rely on the whims of others?
1. Marc's policy which states that employees should first talk to the harasser and tell 'em to knock it off is a good policy. It does not get the company off the hook, though, because there are many reasons why people do not complain in the way we would like. Such a step will protect the employer if, in provable fact, people do complain this way and it is effective.
2. It is not our job to determine the level of severity which makes it actionable in court. We may call it sexual harassment and the actions may even be an example in our policy. The court definition is not necessarily the same as ours. Actually, we shouldn't call stuff sexual harassment at all, because our characterization will be picked up by the plaintiff's attorney as evidence that the company viewed the conduct as sexual harassment. It is objectionable behavior which violates our policy.
3. It is a tough decision, and a legitimate one, when deciding when to do a full investigation and when to deal with it in a less visible way. There is nothing wrong between us facilitating a discussion between two people to put an end to a problem. As stated by someone, this may not catch a situation where the conduct has been repeated, but it is our knowledge of our paticular company and employees which allow us to make the judgement as to whether behavior is an isolated incident or not.
4. The accused has rights too, and investigations always put a stigma on the accused, whether the accusation is true or not. That is another reason why the decision pertaining to the investigation, and the visibility it takes, should be a careful one.
Surely we must all agree that there is some line drawn in the sand - go over the line, and the investigative process is implemented. Stay on the other side of this imaginary line and the investigative process is not started.
Perhaps that line varies with people and places, but it is nonetheless there.
Innocent, good-natured banter abounds in our society. Ok, some of it is not so innocent, but still does not cross the line. One peer may say to another, "Nice pockets on those pants." The real intent is to compliment the derriere, but it may not rise to the level of harassment either in intent or receipt.
When does a compliment become an act of harassment?
1) OK Marc; you laid the theory out there. Tell us where you suppose this imaginary line might be. I am reminded that you are an accountant and might be accustomed to bright lines. An imaginary line is not bright and, in fact, does not exist. There is no way that there can be a universal imaginary line, which, when crossed, sounds alarms. Each situation is stand-alone different. This is similar to the request to 'Give me a list of all the questions we cannot ask'. But, I would like to hear your notion of where to draw this line in the sand so that the tide doesn't wash it away.
2) I once reported to an HR VP who was an attorney. One of the things I learned from that person, that has stuck with me forever, which Gillian3 alludes to and I mentioned earlier is this: Sexual Harassment is a legal term. The company should never arrive at a conclusion of Sexual Harassment. The company can arrive at a conclusion of inappropriate conduct in violation of policy; but, not of Sexual Harassment. We will be on much firmer ground to steer clear of that legal conclusion since we are not trained in the mechanics of legal conclusions. Plaintiff's attorneys would love to hear us get off into that.
A line by place - in a warehouse or manufacturing business, there are conversations that take place every day that in a professional setting would curl toes. No one complains because it is part of the "culture." There is a line. There are places where inappropriate conversations are more likely to take place without incident. If there is a complaint, at that time, the line is crossed and there is a duty to investigate.
A line by people - I may come by and say "Nice pockets on those pants." To some, it is fine, to others offensive. It depends on the person. Each person draws their own line on what is and is not appropriate. We have to respect that. If the ee goes to the other party and takes care of it, great. No line crossed {unless the ee tells you and then I believe you need to have them document what happened what they said and that they "resolved" the issue. I would still go and talk to the other party and explain the importance of not only "looking right, but being right."). Additionally, depending on what was said, even if the ees had "worked it out," there may be a need for further discipline.
If the ee complains, the line is crossed. We can't define for others what they believe is inappropriate. It may not rise to the level of "harassment" under the law, or even under your policy, but to the ee, it is real. We owe them the courtesy of taking their concern seriously and looking into it. I think sometimes we downplay the significance of situations because we rationalize them with our knowledge of the law/policies. "What Sue complained of is not really harassment, so there is no liability." But Sue complained. Without investigating, there is no way to convey that this is not tolerated and cannot happen again. Next time, there is a comment or inappropriate behavior she does not complain because "nothing happened when I complained the first time." IMHO, this opens the door for future comments and takes away any affirmative defense you have as an employer.
I am not sure what Don meant by accountants being used to bright lines. Perhaps he means accountants view things in black and white perspectives. If that is indeed the inference, I dispute that and will not comment further in that area.
Now to the specific post - "They stated they weren't upset about it, but they didn't welcome it (my words). They didn't want anything done, and wanted to address it themselves." The actions of this ee and the quoted portion of the post are contradictory. One wonders why it was brought forward if the EE was not upset and wanted to handle it themselves.
Our own policy encourages that first level of interaction to happen between the EEs involved in the situation. That is what I thought should happen in this instance. Others have contended that this might be the tip of the iceberg and imagined all sorts of hidden instances of unmentioned harassment. Those imaginings are similar to the line in the sand I mentioned.
If behavior is perceived inappropriate by an EE, they can ask for the behavior to stop or bring it to managements attention for further action. In this case, the EE did bring it forward, but wanted to handle it themselves.
"The managers realize that since it was brought to their attention, they need to act on it." The action I suggested may be enough. If the behavior is stopped after the EEs request, then "Mission Accomplished." That is the desired result.
I assume your policies give the company the right to monitor e-mail for inappropriate use. It would be very easy for your computer folks to pull up all of her outgoing messages, which would help you see if this is an isolated incident or not.
James Sokolowski
HRhero.com
Quoting Marc, "Others have contended that this might be the tip of the iceberg and imagined all sorts of hidden instances of unmentioned harassment. Those imaginings...". Well, all training in conducting investigations deals heavily and in depth with 'tips of icebergs' and being attentive to clues that might indicate things which are not the obvious. It would be irresponsible of us to characterize those considerations and skills as muddling around in hidden instances or imaginings or non existent icebergs. Rather we have a responsibility to go there. Every time. x:-) Peace.