Special from AEIS: Harassment Complaints—Biggest and Costliest HR Mistakes

There’s no shortage of reminders these days that harassment is still a major issue for employers. And it’s particularly challenging, as we’ve seen all too often lately in the news, when an executive is a harasser or a company culture implicitly condones or perpetuates sexual harassment or a hostile work environment. So, what can HR managers do?

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During our podcast, recorded live at BLR’s Advanced Employment Issues Symposium (AEIS) in Las Vegas, we asked Employment Law Attorney Mark Schickman about the mistakes that HR makes when dealing with harassment complaints.

Schickman has been practicing employment and labor law for 40 years. He has successfully litigated almost every type of employment case and provides employment advice to employers across the country. Schickman speaks and writes on litigation and employment law nationally, is a member of the American Arbitration Association’s select panel of employment law arbitrators, and is the editor of BLR’s California Employment Law Letter.

Steve:   So, Mark, you’ve advised, you’ve arbitrated, you’ve defended many, many cases involving harassment. What are the biggest and costliest mistakes that HR makes?

Mark:    I think that the first one is not getting the information that they need. You will oftentimes see an instance that a complaint of harassment stops at the first-line supervisor level. HR doesn’t find out about it until there’s three or four different complaints, and now HR can’t deal with it. One of the things that HR needs to do is to make sure that the supervisors and managers know that they need to report any complaints of harassment over to HR.

HR can decide to deal with it or not to deal with it, but only HR is going to know whether the alleged perpetrator, under a different supervisor 1 year before, had the same kinds of complaints, so each of these supervisors thinks that it’s just a one-time deal. There’s got to be somebody central who knows otherwise. That’s number one.

Number two, you need to set up a reporting system that is going to be welcomed by employees. If you’ve got a reporting system, and you find out that employees are not comfortable using it because there’s a fear of retaliation, then your reporting system will go absolutely nowhere. I often say that somebody might accidentally engage in discrimination—but you don’t accidentally engage in retaliation. Retaliation is one of the few places where when I give recommendations, and when I give trainings to companies, I’ll often say, “This is the one area where if anybody asks my recommendation and I find out that you retaliated against somebody, I’m going to say terminate.”

Because, again, maybe you didn’t understand that this glamour photo that you made of your wife in a very sultry, seductive pose, that you have on your desk, is viewed to be a harassing photo. You think it’s your favorite picture of your wife. Now that there’s a complaint, and now you understand it offends people, so take it down and I’m willing to accept that, and the company is probably willing to accept that as a mistake. If you, then, target the people who made the complaint against you and retaliate against them, a whole slew of things is going to happen. First of all, that’s intentional conduct. The company’s got very little by way of defense, number one. Number two, if the company allows that kind of retaliation to come up, nobody is ever going to complain to HR again. They’re going to go straight to the EEOC [Equal Employment Opportunity Commission], and that’s not what you want.

So, you want to have a complaint process that’s open that way. You have to have an investigation process that the victim feels—the alleged victim feels—comfortable in pursuing; and then, at the end, you’ve got to close the loop. This is what’s hard for a lot of companies. They get a complaint, and they take the complaint seriously and they investigate it and they impose some discipline, but you know? They never go back to the complainant. They never tell the complainant what’s going on, so the complainant thinks that he or she has made a complaint of harassment and it just fell on deaf ears. So, you’ve done everything right except close the loop. I think that that kind of holistic system is what is important for an HR professional to put into place.

Steve:   Any final recommendations for HR?

Mark:    Well, just that life is going to become more difficult. The newest EEOC guidelines are becoming more aggressive in saying that [discriminating on the basis of] gender identity and transgender identity is a form of sex discrimination and sex harassment, which is prohibited by Title VII of the Civil Rights Act of 1964. In other words, when you discriminate against a transgender person, you’re basically saying that’s a guy and he ought to be behaving like a guy, or that’s a woman and she should be behaving like a woman. You really are engaging in the discrimination or harassment on the basis of gender, says the EEOC.

You’ve got to kind of broaden your thinking, and it’s difficult to get your head around that. It’s difficult having your lead salesperson, Jack, leave work on Friday wearing a suit and tie, and she becomes Jacqueline and shows up, after a 2-week vacation, wearing a dress, hose, and heels. You have to be able to accept that the way we have been able to accept lots of other things in the workplace over the last 50 years, where at the beginning we were going to say it wasn’t going to happen.

We also have twin trends that are going on, where there’s a lot more discussion of sex and sexuality in the office. You are seeing a lot more of the kind of discussion at work that you’re going to try to monitor, and at the same time, you’ve got this public sense that the workplace has got to be 100 percent clean when it comes to not engaging in sexual harassment. We’re becoming looser in some ways and more puritanical in other ways, and HR is standing in the middle, trying to withstand being buffeted by these opposing forces. Thank God that there’s HR people out there. I sometimes feel that we are the honest brokers for society, so kudos to all of you who are listening to this.

Steve:   Well, thank God that we’ve got good advice coming from our employment attorneys. Thanks so much for joining us, Mark. We appreciate these insights.

Mark:    Thank you.

As of its 23rd year, BLR’s Advanced Employment Issues Symposium is being renamed HR Comply.  By any name, it is the nation’s leading human capital management conference for HR professionals, executives, and in-house counsel. The superior content and expert presenters will help you get ahead of workplace policy updates with a one-stop, all-bases-covered overview of breaking updates and proven best practices. Learn more about HR Comply 2018, being held in Las Vegas next November.