HR Puts Its Questions on the Line
With so much at stake-multimillion dollar lawsuits, loss of productivity, absenteeism, turnover, low morale, lack of trust, breakdown in communications, long-term career damage and increased use of EAPs, medical and psychological services-we believed human resources professionals might have unresolved issues, concerns and problems in trying to eliminate sexual harassment from the workplace. There are numbers to support our belief: According to the EEOC, the number of sexual harassment claims filed in the first half of 1993 increased by nearly 29% over 1992-the largest increase since enactment of the Civil Rights Act of 1964. And, there were 13% more claims filed in 1994 than in 1993.
We included a survey in our June 1994 issue on the topic. We asked, "How big a problem is sexual harassment?" Seventy-four percent of the more than 200 respondents said that sexual harassment is a serious problem facing business today. And, in general, 61% of the respondents said that business isn't doing enough to address the problem.
We wondered, why aren't businesses doing enough? What's holding them back? What are the problems they're facing in educating, training and informing their work forces about the topic? To get at the heart of the matter, we called HR professionals. We found that although the majority of HR managers have had to deal with this ongoing topic, many have refocused their strategies in the four years since the Clarence Thomas hearings. The number one question that most personnel professionals are asking is, "Why is there still such a lack of awareness?" And, "What can we do about it?"
We conducted interviews with experts including trainers, consultants, attorneys and HR executives at companies that are demonstrating best practices in dealing with sexual harassment, to get a comprehensive overview of the issue. Their insight provides answers to today's most difficult issues surrounding sexual harassment and offers hope for fewer complaints in the future.
Biggest problem: workers still are confused by what sexual harassment is.
Despite all the media attention that sexual harassment has received, and the education and awareness training that has been conducted at U.S. work sites, HR professionals say that their biggest problem with this issue is that the majority of employees, including managers, still are unsure about what constitutes sexual harassment. In fact, 90% of the respondents to our survey said that their workers don't understand a common definition of sexual harassment.
Part of the confusion may lie in the vagueness of the law itself. As defined by the EEOC in 1980, there are two categories of sexual harassment. The first, quid pro quo, means "something for something." The "something" usually is a request by a supervisor of a subordinate for sexual favors in exchange for favorable treatment on the job, which may mean continued employment or a promotion.
In a recent case of quid pro quo harassment, Savino Gutierrez was sexually harassed by his supervisor, Maria Martinez. Martinez, the director of human resources and CFO for Cal Spas, a division of California Acrylics Industries, had pursued Gutierrez in a sexual way nearly every day for six years and had demoted him twice for spurning her advances which involved fondling and sexual touching. A jury recently awarded Gutierrez more than $1 million in his case against the company, although the verdict is under appeal.
The other type of sexual harassment is hostile environment in which the workplace is cluttered with regular or repeated actions or objects of a sexual nature that unreasonably interfere with job performance. They have the effect of creating an intimidating, hostile or offensive work environment. The actions can be either a single occurrence, or ongoing behaviors in combination with other forms of environmental harassment that occur over time.
The most recent case of hostile environment sexual harassment was the highly publicized Weeks v. Baker & McKenzie case in which former legal secretary Rena Weeks claimed, among other things, that her supervisor, attorney Martin Greenstein, poured M&Ms into her blouse pocket, then reached in from behind her to retrieve them. For the harassment Weeks endured while on the job (only 25 days) in 1991, the jury awarded her $7.1 million.
In both cases, the prevailing standard for determining whether a situation can be considered sexual harassment is by applying the "reasonable person" standard. If a "reasonable person" (either male or female) would find the behavior or environment sexually provocative and offensive, then it can be considered sexual harassment and, therefore, problematic.
Although the quid pro quo cases of the world get the most public attention and yield some of the biggest jury awards, they are the least pervasive in Corporate America. "Ninety-five percent of sexual harassment isn't about quid pro quo or about men requiring women to sleep with them for promotions or touching them inappropriately or cornering them in the back room. Ninety-five percent are about hostile or offensive work environments," explains Mary C. Mattis, Ph.D., VP, research and advisory services for New York City-based Catalyst, an organization that works closely with business to effect change for women.
It's the more subtle forms of sexual harassment that seem to be the most pervasive. Yet they're the most difficult for the general worker population to identify. While it's easier to explain to workers not to grope or fondle each other inappropriately, it isn't so easy to explain what kind of jokes may be offensive to some people, exactly what types of topics might be taboo or what kinds of objects or decorations they may or may not have sitting around in their work area. Can a male worker keep a photo of his wife or girlfriend wearing a bikini from their recent vacation on his desk? Can women employees talk about PMS in the hallway? What if your lunchroom's library includes a Victoria's Secret catalogue? If everyone agrees that it's OK to have these things around or to talk about these topics, is it really OK?
That depends. Because perhaps the most perplexing part of understanding sexual harassment in the workplace is that it doesn't matter who does or says what; what matters is how it's perceived. If the behavior or elements of the work environment are unwelcome or offensive to even one person, it can be considered harassment.
"A lot of people kid around [in a sexual way], but some people don't take it as kidding," explains Jackie LaFave-Perkins, AVP director of HR for Lanz Inc., based in Culver City, California. "It's not how the person that's making the comment interprets it, it's how the person to whom the comment is made interprets it." And that's how the law determines the harassing nature of the environment. Within that fuzzy area called interpretation lies the problem.
What do the experts say are the best ways to eliminate confusion about sexual harassment? Have a strong policy, communicate it often and have effective procedures that show you mean business. "Finally, senior people in the company have to model respect for women and respect for all workers," says Mattis. The experts agree: Do this and your liability surrounding sexual harassment will be greatly diminished.
Eliminating confusion starts with a clear policy.
The confusion about sexual harassment lingers even though companies have clear policies against it. According to a 1994 survey by Training magazine, 76% of all companies report having a formal policy on sexual harassment.
Kimberly Gilmour, a director with the law firm of Tripp, Scott, Conklin & Smith in Fort Lauderdale, Florida, recommends developing a strong sexual harassment policy around a 10-point system. "Your policy must first state that the company has a zero tolerance of sexual harassment and discrimination of any kind," says Gilmour, who has helped many organizations develop sexual harassment policies. "[Commitment] also has to come from the very top of the organization. The president or the CEO must be 100% behind the policy."
For example, New York-based Corning Incorporated has had a clear, zero-tolerance policy on sexual harassment since 1986 when the company published its first policy and brochure on the topic. The brochure, which has since been updated, prohibits all types of harassment including ageism, racism, sexism and religious harassment. "We're constantly informing our employees of their responsibilities in this area," says Sandra Parker Mitchell, corporate EEO/affirmative action supervisor. Corning's policy makes it clear that anyone found guilty of sexual harassment will be dealt with according to the severity of the crime. "We say in our policy that we have sanctions that will deal with the severity of the issue up to and including termination," says Mitchell.
This is the smartest way to state the consequences of sexually offensive behavior in your policy, says Gilmour. As an employer, you want to give yourself leeway in dealing with every possible situation-because every case is different. If you stated, for example, that every case of sexual harassment would go through a first warning, written reprimand, second warning, suspension, termination system, you wouldn't be able to immediately fire an individual if the situation warranted it. "I wouldn't recommend putting in the exact disciplinary action," says Gilmour. "I would leave it open, but [employers] need to be consistent with whatever action they do take."
In addition, employers who deal with harassers with the same set of rules for everyone-whether they're a senior executive or a janitor-will gain the most respect from their work force, not to mention juries who may hear a case down the line. "Anyone who's involved [in sexual harassment] at any level of the company would be treated exactly the same way," says Marcia Worthing, senior vice president of human resources and corporate affairs for Avon Products Inc. headquartered in New York City. "There's no room for any variation around this issue."
Los Angeles-based Sizzler International, for example, has one of the strongest policies in dealing with sexual harassment there is. All managers must take a test before sexual harassment training to see where they fall on the sexual harassment knowledge continuum. Then they go through training, which involves a video and a workshop. Afterwards, they take a posttest. If they miss two out of 14 questions, they must complete the training again. If they again fail the posttest, management considers termination. "Fortunately, we haven't had to terminate anybody yet," says Lee Clancy, Sizzler's VP of HR. "But we have recycled some people. The theory is, if they don't understand [what sexual harassment is], there's a possibility it could happen. And after two times through what is essentially a three-hour workshop, they better know what this is all about."
A sexual harassment policy also needs to describe how employees report incidents of harassment. The best policies give employees options. At Corning, employees can report to their first-level supervisor, second-level supervisor, the EEO office or anyone in personnel management. When employees have a choice, they're more likely to report sexual harassment to someone in-house-which gives an organization a chance to correct the problem. If employees have only one reporting option, such as their immediate supervisor, that person may very well be the harasser, forcing the employee to go outside the organization for redress.
Above all, your policy must be your own. It must reflect the way that your organization does business. "You need to be careful because you don't want a canned policy," says Gilmour. "You want to tailor it to your company philosophy and to your company culture."
Training helps clear the sexual harassment fog.
The next step in clearing the fog surrounding sexual harassment is training employees about what sexual harassment is. "Sexual harassment is an old issue despite all the new attention," says Susan L. Webb, president of Pacific Resource Development Group, Inc. in Seattle, Washington. Although Webb has trained organizations in sexual harassment since 1981, she says that senior executives still ask her how they can keep people's attention on an issue that they're tired of hearing about. The answer, says Webb, is regular, effective training. "There are companies who did what they thought was training, but it was more like a briefing where they talk about it for 30 minutes in employee orientation," she explains. "That's hardly training."
Webb recommends finding trainers that have the technical and legal understanding of sexual harassment in addition to topical awareness of the issue. That way, when people ask questions, the trainer can offer more than yes or no answers, she says. One of the problems with sexual harassment training is that it isn't skills training. "It's not like teaching somebody how to make widgets. It's awareness and attitude training," explains Webb.
Another problem is that the training doesn't stick unless it's interesting and captures an audience's attention. While some organizations bring in attorneys to speak about the topic, others find that approach too technical for their audiences. For example, Steve Shaw, vice president of human resources for Santa Monica, California-based Metro-Goldwyn-Mayer Inc., recently chose Live Action Training, a training firm in San Diego, to train 225 of its mid- and senior-level managers. The training involved professional actors who performed live custom-scripted vignettes as well as conducted interactive discussion to illustrate the finer points of sexual harassment. He describes the training as edutainment-people learn while being entertained.
Shaw had two goals for the sexual harassment training: raising awareness, clarifying misconceptions about what constitutes sexual harassment, and informing managers of their responsibilities to provide a harassment-free work environment for all employees. The training succeeded. A survey that he sent to approximately 20% of the managers after the training revealed that 91% learned something they didn't know. This kind of response is common. Even if employees have read the company's policy on sexual harassment and are trained periodically, they tend to forget key points and need refreshers.
Corning, for example, teaches employees about sexual harassment first during orientation and then again during diversity training. Avon also takes a similar approach. Since 1992, it has required all managers to take three core curriculum courses that cover diversity, disabilities and sexual harassment. So far, 90% of the company's managers have completed the courses. Non-exempt workers also are taking them.
Although experts say that training is vital, some personnel professionals worry that training will cause an increase in sexual harassment complaints. In fact, it sometimes does. Corning, for instance, usually experiences more complaints right after giving courses on harassment, but management is glad when that happens. "I see it as an excellent thing because we would like to have our employees aware of their rights and talking about them with us rather than going outside to talk about it," says Mitchell.
There's a fine line between creating a problem by being proactive and stirring people up, says Kit Goldman, managing partner for Live Action Training. "If a company is able to clearly define for their work groups what the boundaries of sexual harassment really are, then it can feel comfortable encouraging people to come forward."
Monica Ballard, president of West Los Angeles-based Parallax Education, suggests that you demonstrate respect for employees during training on sexual harassment by helping them see that they have choices-that they can speak up and challenge harassers. "We stress the concept of choice," says Ballard. "That is, it's their choice to make the work environment more productive and harmonious for everyone around them. It's also their choice to stand up for themselves and stop inappropriate behavior when they see it, rather than be a victim." If you can include sections of assertiveness training in your coverage on this topic, so much the better.
As many companies have discovered, sexual harassment isn't an issue that you can talk about once, then figure you've covered it. You must cover it periodically to ensure that employees are aware that you're concerned about prevention and take it seriously.
Investigation is the second biggest problem for HR.
Other than increasing the general awareness about sexual harassment, conducting sexual harassment investigations is probably the biggest single problem for HR professionals. "My biggest issues were how to listen to the situation and how to distinguish between the two stories-there are always two sides of a story-and how to do the appropriate investigation," says Harvey Hirsh, director of HR for Teleport Communications Group in Staten Island, New York. In fact, 76% of respondents to the Personnel Journal survey said that they had investigated a sexual harassment complaint in the past year.
"A lot of times in these situations, it's one person accusing the other of wrongdoing and the other totally denying it," says Gilmour of Tripp, Scott, Conklin & Smith. How do you determine who's right and who's wrong, especially when there are no witnesses other than the people in question?
"There are a lot of cases where there's no possible corroboration by any other witnesses. This often makes it a lot tougher for the employer," says Jeffrey A. Berman, a partner with the Los Angeles offices of Proskauer Rose Geotz and Mendelsohn, the law firm that's representing Price Productions, Inc. in the sexual harassment case brought by former Price Is Right model Dian Parkinson against the company and host Bob Barker. In cases where there are no first-hand witnesses, employers can interview third parties with whom the alleged harassee and harasser may have spoken about the situation. It's important to carefully interview everyone who may have had any knowledge of an incident, even if it's secondhand.
Another big problem is when a complainant doesn't want the company to investigate. "The law generally says that you have an obligation to investigate," explains Berman. He's seen problems, for example, when an employee informs his or her employer of an alleged incident of sexual harassment and then states that they don't want the incident investigated. When this happens, employers often ask employees to sign waivers releasing the companies from their duty to investigate. Later, when this type of case goes to court, the waivers often don't hold up as a defense. As a general rule: Investigate every complaint of sexual harassment, even if an employee asks you not to.
Berman recommends that whenever an employee makes a sexual harassment claim, have them put it in writing. It will help your company in three important ways. "First of all, it will give you a guide as to what to look for. Secondly, if you end up getting sued and the person is now suing you for more things than they had said in writing, you may be able to attack their credibility," says Berman. "And third, if somebody is going to put something in writing, it generally shows that they're serious about their claim, but not always."
HR professionals are used to dealing with issues of confidentiality. Holding information in confidence is never more important than it is in sexual harassment cases because of retaliation against the complainant and defamation against the accused. But what must be kept confidential, and what can you divulge? "Before you interview the accused, you need to decide what you're going to tell them they're accused of and who accused them," explains Berman. "Sometimes you have to tell them and sometimes you don't. If there's a claim of environmental harassment where the person has been telling dirty jokes or has dirty pictures on the wall, you sometimes don't have to tell them who made the accusation, you can just describe the accusation. It's so generic that it could have been made by anybody and the chances of retaliation are fairly small."
Other times, the accusation won't make sense to the accused unless the accuser is named, says Berman. Whenever you must name names, it's important to remind those involved that if there's any retaliation against the complainant, they could be terminated.
"We always, always emphasize the confidentiality," says Ronald M. Shane, manager of HR policy and practices for Avon. "That's the first thing we say and the last thing we say in any investigation." Avon's investigation process is unique. Two years ago, all of the company's HR managers got trained on how to conduct a sexual harassment investigation. Whenever the company must follow up on a complaint, both a male and a female personnel professional interview the people involved. "There are different perspectives in terms of how males see situations and how females see them," says Shane. "So, to be fair to everybody, we always have a male-female team."
Finally, the most important thing to remember is that you must investigate immediately. Timeliness is everything with sexual harassment charges. "We investigate all complaints or allegations immediately," says Lynn Oakley, regional HR manager for The Circle K Corp.'s western regional office in Fontana, California. "And we take immediate action." Although there are approximately 12,000 employees in her region, most sexual harassment allegations are resolved at an informal level. Oakley attributes this success to the immediate attention that the company gives to every single case. "I think that helps stifle any further [legal] action by the individual that brought the allegation," she adds. Once the harasser knows that the company is aware of his or her actions, it also may stifle any further harassment activities by the accused.
"There's a notion in the law that if an employer takes quick and decisive action, that you can limit your liability," says Berman. When you combine a strong policy, regular training and a detailed and timely investigation procedure into your sexual harassment strategy, experts agree that you may have a fighting chance in limiting your liability and increasing your reputation of good faith and fair dealing with your work force.
A company culture that's open and diverse leads to fewer problems with sexual harassment.
"The thing we have the most difficulty with is that people tend not to report [a sexually harassing incident] until after an extended period of time and then many times it's too late and too much damage has been done," says Jerry L. Buerger, superintendent for the Union County Board of Mental Retardation and Developmental Disabilities in Marysville, Ohio. This problem seems to be common among HR professionals; behind it lies a breakdown in communication.
Companies that encourage employees to communicate with management through such avenues as TQM programs, employee suggestion programs and open-door policies, have a leg up in this area. Companies that don't provide adequate dialogue about sexual harassment and fail to encourage employees to come forward with concerns, will have both a higher number of complaints and a higher potential for lawsuits, say the experts.
"There needs to be a culture of trust. If for some reason something were to happen to a person, they need to know that they're able to trust someone onsite," says Susan Kubiak, HR manager for Mallinckrodt Medical, Inc. in Angleton, Texas. "It's a culture issue. If you treat people right and do the right things, all of these other [issues] fall into line," she adds. In fact, Kubiak says that her company, which has 200 employees comprising mostly women, hasn't had any major sexual harassment complaints in the past few years. She attributes this to the trusting relationship with workers that she has helped to nurture. If employees feel comfortable coming to you with their smaller problems, they'll be more likely to come to you with the big ones.
"This is about respect for people," says Mattis of Catalyst. "It isn't just a gender issue. Foul language and inappropriate posters also are offensive to some men and they're offensive to people of different religions. It's a broader diversity issue."
Avon agrees. "Successfully managing diversity really teaches us to respect differences and be very sensitive to the differences that you see from individual to individual," says Worthing, Avon's VP of HR. Admittedly, Avon may be further along the diversity continuum than most companies. With a work force of 6,500 U.S.-based employees, 39% of its corporate officers and 40% of its directors are women. Companies that link the promotion of women and minorities, and those that promote diversity, also seem to have made the greatest strides in limiting sexual harassment. A recent survey published by Melville, New York-based Olsten Corp. found that over the past year women and minorities have obtained the greatest number of management positions at companies with culture and gender diversity programs.
However, the study also reports that overall representation of minorities and women in management ranks is still proportionately low. While women comprise nearly 45% of the overall work force, only 23% of managers are women while minorities comprise only 7% of management.
Clearly, there's a long way to go before sexual harassment becomes a non-issue. The good news is that we're farther along than we were 20 years ago. "Someone once said, 'You don't have to know your exact life's destination but you have to have the troops facing in a generally westward direction,'" says Webb. "That's where we are. We're generally facing the same direction, but we've got a long trip ahead of us. But for a long time, we weren't even facing the same direction."
Personnel Journal, February 1995, Vol. 74,, No. 2, pp. 36-45.