Sexual Harassment Prevention Training

It’s been five months since the #MeToo movement burst onto the scene. Since then, the headlines have been dominated with accusations of grossly inappropriate behavior by prominent politicians, entertainers, business people, and others. So it’s somewhat surprising that, according to acting EEOC Commissioner Victoria Lipnic (as reported in Law360 (subscription required)), the number of sexual harassment claims being filed with her agency hasn’t changed. Why is that?

One reason may be that employers are being more proactive. Those of us who do harassment prevention training are certainly doing more of it than in prior years. So perhaps (he said, trying to sound optimistic) employers are putting more emphasis on preventing harassment and those efforts are paying off.

Another explanation may be that employers are settling pre-litigation to avoid the devastating publicity that can accompany these claims, particularly with higher-profile defendants.

Also, many of the accusations that figure so prominently in the media involve conduct that occurred many years ago. Employees generally have no more than a year to bring these claims. So conduct occurring before then, no matter how offensive, will not be legally actionable.

Finally, it may be that the claims are working their way through the system. Before filing a lawsuit or a charge with a government agency, plaintiffs’ lawyers may be interviewing witnesses and lining up support for their clients’ claims. That process takes time.

Whatever the reason, employers shouldn’t let their guards down. They should continue to ensure that their harassment policies are legally compliant, that they appropriately investigate complaints of bad behavior, and that their managers are trained about their obligations in providing a harassment-free workplace. While there has not been a big upsurge in harassment claims yet, it only takes one to devastate your company.

When an employer gets sued for sexual harassment, the focus is not on what the alleged harasser did. It’s on what the employer did to provide its employees a harassment-free work environment. This includes both steps taken before anyone complains and steps taken in response to the complaint. So if your goal is to prevent your company getting sued for harassment, there are 12 steps you can (and should) take now. In fact, California law requires these things be present in all harassment policies.

  1. List all the categories currently protected under the Fair Employment and Housing Act, i.e., race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military or veteran status.
  2. State that the policy prohibits harassment by co-workers, supervisors, managers, and third parties with whom the employee comes into contact. (That’s basically everyone, isn’t it?)
  3. Provide confidentiality, to the extent possible, for complaints.
  4. Promise timeliness. This is a point of emphasis. The regulations require “a timely response,” “timely investigations,” and “timely closures.”
  5. State that investigations will be impartial and conducted by qualified personnel.
  6. State that investigations will be documented and tracked for reasonable progress.
  7. Provide “appropriate options for remedial actions and resolutions.”
  8. Designate personnel to receive complaints, while stating that employees are not required to complain to their immediate supervisors.
  9. Instruct supervisors whom to direct complaints to. Don’t let them investigate on their own, unless they’re trained to do so.
  10. Indicate that the employer will conduct a fair, timely (there’s that word again!), and thorough investigation that provides all parties with appropriate due process and reaches a reasonable conclusion based on the evidence.
  11. Indicate that, if misconduct is found, the employer will take appropriate remedial measures.
  12. Prohibit retaliation.

Perhaps you’ve noticed that harassment claims have been in the news a lot lately. The first line of defense is having a compliant policy in place. Not allowing your employees to ever interact with customers, supervisors, vendors, or each other may also be effective, but that doesn’t seem to work for many businesses.

 

Illustration of a fox with sunglassesWe often blog about how different California employment laws are when compared to the rest of the US.  Whether it is the minimum wage, mandatory harassment prevention training requirements, or that funky law called PAGA, find out how to comply with laws in what we fondly refer to as the United Republic of California with this handy guide to Doing Business in California.

Many thanks to Sahara Pynes for her assistance in updating this informative guide.  Check it out on the Fox Rothschild website.

The California state flag

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.

What a year it has been for harassment claims. The biggest year in the 22 years I have been practicing law. It seems that every day there is a big new headline or rejuvenated social media campaign, and someone else powerful losing their job over harassment allegations.

It is astounding to me that there are so many issues, even after AB 1825 was passed back in 2004 mandating harassment prevention training in California. That statute was expanded to require training on bullying and abusive conduct in 2015 (AB 2053). And now, as of January 1, 2018, it will need to include training on gender identity, gender expression and sexual orientation (SB 396).  With increased protections for transgender employees under California law, training to increase tolerance and understanding surrounding those issues will be particularly important.

Training certainly hasn’t fixed the harassment issue. But since training is mandatory for any business with over 50 employees, it might as well be meaningful. That is why I try to focus my training on real life stories and anecdotes that get people out of their own head (and point of view), and into the head of the victim. One of the main themes is always that harassment is based on perception, not intent; so it is possible to unintentionally harass someone, in fact it happens all of the time. For example, someone may think a compliment, sexual innuendo, or even a direct pass is flattery, but as the millions of “me too” posts reflect, that may not be how such conduct is perceived by the recipient.  Especially when there is a power differential at play.

David Schwimmer’s series of #that’sharassment videos provide realistic (and disturbing) examples of how harassment resonates in workplaces, and how it feels to the recipient.

In my career I have seen many talented and valuable managers lose their jobs due to inappropriate behavior that violated harassment policies. In my training, I tell all managers that doing a great job is not a defense to a harassment claim, and won’t protect them. That message certainly rings true based on recent headlines.

Illustration of a pot boiling overCalifornia employers can expect all of the news about harassment claims to keep bringing even more issues to the surface. The proverbial pot has been stirred.

And as current events have shown, taking prompt action to correct and prevent harassment is critical. There have been enough headlines about harassment in 2017, don’t let the next one be about your company.  Let’s put an end to the me too’s.

It took three months, but the long-awaited report about Uber’s culture from former Attorney General Eric Holder and his law firm was published this week. You can read the 13-page report with its 47 recommendations here.  Uber’s Board of Directors voted unanimously to adopt all of the recommendations.

CEO, Travis Kalanick, will have a reduced leadership role.  Parts of his job will be given to a new Chief Operating Officer charged with implementing the Board’s recommendations. There will also be more Board oversight of management, and steps to create a more independent Board that can actually hold management accountable (including financially).

In addition, it was also reported that the CEO is taking an immediate and indefinite leave of absence.  It has been a rough year for Kalanick, whose mother recently died in a boating accident where his father was also seriously injured.

In his statement to Uber employees he writes: “The ultimate responsibility, for where we’ve gotten and how we’ve gotten here rests on my shoulders. For Uber 2.0 to succeed there is nothing more important than dedicating my time to building out the leadership team. But if we are going to work on Uber 2.0, I also need to work on Travis 2.0 to become the leader that this company needs and that you deserve.”

The report also reads like a help-wanted advertisement to consultants of all types as it requires:

  • Mandatory Leadership Training for Key Senior Management and Executive Team Members
  • Mandatory Human Resources Training
  • Mandatory Manager Training
  • Interview Training

Uber is also in the market for several senior executives including a new Chief Operating Officer, Chief Financial Officer, Senior Vice President of Engineering, and General Counsel after many high profile departures.

There are also recommended changes to the Human Resources Department and complaint process, which seem long overdue.  As you know from prior blog posts, the way Human Resources reportedly handled the harassment issues raised by female engineers was a lesson in how not to investigate a complaint.

Steps will also be taken to limit the party atmosphere (less alcohol and controlled substances at work) and to prohibit romantic or intimate relationships between individuals in a reporting relationship.  Hard to imagine that these protections were not already in place for a business with over 12,000 employees.

Probably the most entertaining recommendations were a revamp of the company’s core values to eliminate those that have been used to justify poor behavior, such as:

  • Let Builders Build
  • Always be Hustlin’
  • Meritocracy and Toe-Stepping
  • Principled Confrontation

Oh, and my personal favorite, the War Rooms will now be designated Peace Rooms.

Rainbow peace flag
Copyright: daboost / 123RF Stock Photo

Some are skeptical that Uber can change.  Whether it can depends on whether Kalanick and other senior managers can set aside the aggressive culture to walk-the-walk, and not just talk-the-new- peaceful-inclusive-talk.

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?