More than ever before, the topic of sexual harassment is dominating the news (and this blog).  It’s time to make sure that your company’s sexual harassment prevention training is up to the task.

Fox Rothschild’s skilled team of attorney trainers will tailor a program to meet your company’s needs.  Take a break from the online routine, and make sure that your next sexual harassment prevention training session is a “wow,” not just a check-the-box compliance item.

38610418 – wow! comic speech bubble, cartoon

To learn more, check out this alert featuring our Los Angeles team.

I remember back in 2004 when AB 1825 passed, requiring all California businesses with over 50 employees to train all managers and supervisors on harassment prevention.  It was one of the first significant employment laws signed by Arnold Schwarzenegger when he became California governor (and yes, that is ironic given the allegations against him).

Uncomfortable employee
Copyright: bbtreesubmission / 123RF Stock Photo

For the past 13 years, I have been conducting harassment prevention training for clients.  I have probably done that training 150 times.  And each year when I update my materials, there are always plenty of new and juicy stories from my cases, and the news, to refer to.

I always start each training by asking – why are we doing this?  Is it still needed?  Well, apparently, it is.  Especially in the tech industry.  Have you been following the stories last week about Uber?  Can it be that such stuff still happens in work places in California?

For those of you who haven’t been following, here are the highlights.

  • The issues started on February 19th when Susan Fowler wrote a very compelling blog post detailing her experiences as a female engineer at Uber.
  • Her account is very troubling from an HR standpoint, including overt sexual overtures from management, and reports to HR that were incredibly mishandled.
  • Fowler contends that Human Resources essentially sided with management, protected the serial harasser, and lied to her and others about it; in legal terms that is called ratifying bad behavior.
  • By February 21st, Uber had retained former US Attorney Eric Holder to lead an independent review into Fowler’s claims.
  • Board member Arianna Huffington and the company’s Head of HR were also tapped to assist.
  • Then on February 22nd, the New York Times wrote an article titled “Inside Uber’s Aggressive, Unrestrained Workplace Culture.”  Indeed, that article brought to my mind images of the excesses portrayed by Leonard DiCaprio in The Wolf of Wall Street before the stock crash.
  • Then on February 23rd, Uber’s CEO met with over 100 of the company’s female engineers (the “Lady Eng Group“), who told him that the company has a “systemic problem” with sexism.

Wow.  How can this be?  13 years after AB 1825?  Haven’t businesses learned that harassment costs money?  Public embarrassment?  How much money does a company have to lose to take such claims seriously?  How many good (and typically female) employees need to exit?

After defending such claims for employers for over 20 years now, I know that not all harassment allegations are true, and that there are two sides to every story.  I also know that sometimes well-meaning Human Resources professionals are thwarted by management.  But I also know that company culture starts at the top, and if management doesn’t live the stated company values, the employees don’t either.  And if management endorses an aggressive bro-centric abusive environment, then its employees will too.

Or as one of my favorite hospitality clients likes to say “fish rots from the head.”

Fingers crossed for Uber that they get it right, and fix whatever issues are festering and detracting from their mission.  Or in the reported words of Ariana Huffington, stop hiring “brilliant jerks.”

While some people view hugs as a way to “spread the love,” in the workplace, they can be a way to spread the liability. So here are some things that lawyers who defend sexual harassment claims would like you to know about hugging in the workplace.

  1. All hugs are not created equal. They differ in terms of duration, force, hand placement, and extent of body contact. If you must hug, consider a side hug, where your physical contact is limited to an arm around the person’s upper back and shoulders.
  2. Not everyone likes to be touched.
  3. Some people who like to be touched don’t like to be touched by their boss or co-workers.

    Copyright: neilld / 123RF Stock Photo
    Copyright: neilld / 123RF Stock Photo
  4. Understand the subtle and not-so-subtle cues that someone may not want a hug. These include:
    • They make a point of having a pile of folders in their arms whenever they encounter you.
    • They not only don’t hug you back, but look panic stricken when you approach.
    • When you wrap them in a comforting embrace they become rigid, sob uncontrollably, or attempt to escape.
    • They scream: “Get your dirty paws off me!”
  5. Make sure it’s consensual. Implied consent – they’ve hugged you before or they’re standing there with their arms open – is probably fine. Oral consent – they’ve said they’d like a hug – is better. Written, notarized consent is the gold standard.
  6. If in doubt, keep your hands to yourself.

Remember, under California law, employers with 50 or more employees must train their California supervisors on sexual harassment every 2 years. Is your company current?

As an employment litigator and the co-chair of my firm’s Women’s Initiative, I have been particularly interested in the press surrounding the claims brought by Ellen Pao against her former employer.  As explained in a prior post, Pao claimed that she was harassed by male colleagues, and when she complained about that harassment to Human Resources, was retaliated against and ultimately terminated.  She brought claims of sex discrimination and retaliation, and a San Francisco jury vindicated the employer and dismissed her claims.

This saga illuminated several of the themes that I often address with clients when conducting harassment prevention training.

First, to be unlawful, conduct must be “severe or pervasive,” unwelcome, based on sex, and have an adverse impact on the work environment.  As of this year, harassment prevention training must cover abusive conduct aka “bullying” (defined as conduct, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests).  Put simply, just because the conduct isn’t unlawful, doesn’t make it right.

Second, retaliation claims are very easy to bring and very hard to defend.  While the employer here was ultimately successful, keep in mind that it took a 24 day jury trial for that vindication.  Quite often retaliation claims are fact intensive and not susceptible to summary judgment or prompt resolution.

Third, even if harassment claims fail, it is quite possible for a retaliation claim based on a meritless harassment claim to succeed.  And unfortunately, many managers do retaliate against employees who complain, albeit sometimes inadvertently.  In my training, I always include examples of a manager who was frustrated with an employee who complained about something, and takes actions that could be construed as retaliatory (such as ignoring pleas for help, letting others give the complaining employee a hard time, and/or directing opportunities elsewhere). Managers need to be trained to not only avoid retaliation, but also the appearance of retaliation.

Fourth, defending a harassment, discrimination, or retaliation claim can be a very high hurdle for employers, who need to essentially justify their actions by picking apart the plaintiff’s behavior.  That requires a very delicate balance.  In reviewing how Pao was expertly cross-examined, I cheered for the female attorney who scored such good points for her client.  At the same time I was saddened for women who honestly believe they are stepping up to expose institutional problems that others are too afraid to raise.

And finally, the press accounts of the Pao trial indicate that there is unconscious bias in the workplace.  Semantics matters, such as referring to a woman as someone with “sharp elbows” – would anyone refer to a man that way?

All in all, there are lessons here for everyone.  Let’s just hope employers (and employees), female (and male), take a minute to digest them.

 

Before we blink it will be the end of the year, so don’t forget that 2013 is a sexual harassment prevention training year for many California employers. If you started training in 2005 when AB 1825 became effective, then every odd year is the time to re-train all managers and supervisors. Training must be 2 hours every 2 years, and within 6 months of hire or transfer to California.

I have been conducting training for many clients since 2005. For some loyal clients this year it was my 5th time training the same group! It can be hard to keep the same material fresh and relevant, but this year, I simply looked to the headlines.

Of course, the most relevant headline this year was former San Diego Mayor Bob Filner. Mayor Filner’s story is an excellent vehicle to discuss many harassment issues including:

  • If the allegations are true (such as the alleged suggestion that the employee work without panties, or attempted sloppy kisses, or repeated requests for dates), is that “severe” or “pervasive” under the law?
  • How does a he-said vs. she-said situation change when others speak up with similar allegations? How many people need to speak up to make the allegations more believable?
  • What is the relevance of such “me-too” evidence? What should it be?
  • Does it matter if the alleged harasser did not undergo mandatory harassment training? Should it?
  • What is the duty of an employer to indemnify a manager for a lawsuit brought by an employee? What should it be?
  • Was it fair that alleged conduct in violation of a harassment policy can cause someone to lose his or her job? What is an employer’s obligation to protect its employees vs. the alleged harasser?

The alleged facts and the issues raised in the Filner saga are excellent fodder for discussion, and remember, the training is supposed to be interactive. So don’t forget to train your managers in 2013 and keep it interesting for them by looking to the headlines.