Jun 26 2017
By Daniel Schwartz on
The Dialogue, a online conversation between yours truly and a prominent employee-side attorney, Nina Pirrotti, returns today with another installment — this time tackling the topic of sexual harassment in the workplace. For prior installments, check out these posts here and here. As for the promised redesign and relaunch of the blog, it’s nearly complete. Can’t wait to share it with you soon.
Dan: Last time we promised to tackle a serious topic: Pizza. Given that you’re based on New Haven, surely you have thoughts on the subject. Pepe’s? Sally’s? Modern? Or something else?
But in the meantime, I wanted to tackle a really serious topic and get your thoughts on the state of sexual harassment claims. It feels like we’re hearing more about it of late. It’s been about two months since Bill O’Reilly was fired from Fox News amid allegations of sexual harassment, and the news this month is of a major shakeup at Uber in light of an internal investigation looking at workplace culture. Indeed, the Uber CEO just announcement his resignation yesterday! We won’t get statistics out from the agencies that receive harassment complaints (EEOC and CHRO), but anecdotally, it feels like we’re seeing more awareness of the issue and more questions from employers. What are you seeing from the employee-perspective this year?
What makes matters worse is that too often these victims’ worst fears are reinforced by employers who fail to take swift, decisive action when sexual harassment allegations are brought to light. This is far more apt to happen when the predator is a money maker for the employer. In the case of the harassment by the department chief, for example, several other women had complained about his conduct to no avail. Such non-response packs two punches. First, it emboldens the predator who now has first-hand knowledge he can act with impunity. Second, it chills fresh victims, like my client, from taking action to protect themselves. At some point, the hope for we plaintiffs’ employment lawyers, though, is that the lid explodes off the boiling pot. We have seen this time and again in the media with Bill O’Reilly, Roger Ailes and the folks at Uber et al and, closer to home, that fearful employee who was sexually harassed by the “untouchable” chief ended up convincing four other employees to come forward (three of which were senior executives) and that case settled for well over $1 million even though the hospital finally terminated the chief and all five employees kept their jobs.
I know your clients would never face such a predicament because they are getting advice from the best, Dan! Perhaps you could share with us, though, how you counsel those employers who learn that an otherwise valuable employee is being accused of sexual harassment?
As for Pepes, Sally, Modern, Bar or others go, they are all great but I prefer making my own. The secret is in my sauce . . .
Dan: Well that’s a lot to respond to! But I don’t think it’s a fair argument to elevate rape (a horrific violent crime) into an analysis of sexual harassment cases in general. No legitimate employer or their counsel is going to countenance sexual assault (much less outright sexual harassment either.) Everyone agrees such conduct is wrong.
But are we that cynical to argue that NOTHING has changed since the 1950s? Is the American workplace the same in terms of sexual harassment since the days of the three-martini lunch and the pin-up calendar? Now, I wasn’t alive back then to make that comparison, but I think it’s fair to say that workplaces have evolved a lot since then. (And yes, it’s still evolving.)
Businesses have instituted policies and procedures prohibiting sexual harassment, both quid pro quo and hostile work environment. Most now investigate such claims quickly and take prompt remedial action where warranted. And, at least in Connecticut, there’s at least two hours of training that employers conduct for their employees on the topic. I’ve already given several such trainings this year alone.
I’ve been the first to say that businesses need to be vigilant in order to eliminate sex harassment in the workplace. Heck, you don’t need a survey from Cosmo magazine to tell you that or that sexual harassment IS still an issue (though I did cite that as well.) And employers who have their big rainmaker employees face allegations of harassment have a tough challenge to face.
Ultimately, employers have to realize that their company is greater than any single employee. When other employees have to “put up” with an employee who is a big money-maker for the company, the company is not doing right by your employees. Gravity will bring that employer back to earth. (I agree with you on Uber.) And that will have a far greater impact on the company than disciplining a “bad actor” employee. Is it common for employers to protect harassing employees for fear of a loss of revenue from these moneymakers? I’d like to think the answer is no, but I realize we may not hear about those instances. So, it’s hard to tell.
Nina, I’m also hearing complaints from employees who complain that they are being “harassed” by their supervisor, but when you look into those instances, sometimes it’s just a supervisor holding employees responsible. And there isn’t anything sexual about the behavior at all. So how can employees figure out when they are being sexual harassed versus just being held accountable to their job responsibilities? Is the claim of “harassment” being used too much as a catch all?
Nina: Well first, in answer to your question about whether I believe the workplace has evolved since the days of free flowing booze throughout the workday and a woman for every male executive’s lap, the answer is yes, of course it has. But it has evolved in both good and pernicious ways, leading to the inexorable conclusion that misogyny (and, for both male and female victims of sexual harassment, the desire for those in power to control those without) is alive and well.
Some industries continue to be particularly fertile territory for openly hostile work environments based on gender with the same graphic sexual comments, viewing and sharing of pornography and groping which some associate with the days of yore. Car dealerships, hair salons, hospitals, mortgage brokers, construction contractors (and, indeed any industry where the male worker predominates) come to mind as just a few such examples.
It is true that these days sexual harassment is less flagrant in many other work environments. There is no question that with the training you referenced, comes a greater awareness of boundaries and the consequences if those boundaries are exceeded. But here is the “pernicious” part I referenced earlier: even in those environments, sexual harassment persists, pulsating, just beneath the surface, waiting for the right opportunity to rear its ugly head however subtly, and no woman – – no matter how fierce or accomplished – – can guarantee she will escape its grasp. In fact, some of your readers who have used adjectives such as “fearless” and “pit bull” to describe yours truly may be shocked to learn that I too, was sexually harassed, and while I was an attorney working at a law firm no less! This was many years ago before I became a civil rights lawyer. The male partner did not sexually assault me but he did select me out of a team of lawyers he could have picked to accompany him on a business trip to Buffalo, put his arm around my shoulders when, at his insistence, we stopped by nearby Niagara Falls on the drive up, and made comments to me over dinner such as how he preferred petite, curly haired brunettes. Shortly after I deftly (or so I thought) dodged these advances, he lashed out at me, accusing me of having been too aggressive when I negotiated my salary some months earlier.
As far as the poorly performing employee who plays the sexual harassment card in an attempt to get out of jail free is concerned, I would assure you that we plaintiffs’ employment lawyers are generally a pretty sophisticated bunch. We recognize that prospective client screening is one of the most important aspects of our work. Those who complain of a “hostile work environment” or “harassment” because their boss is demanding or even downright obnoxious never make it to our door unless there is sufficient evidence that the hostility or harassment is directly tied to their gender.
But I can tell you this, I was fortunate enough to land a wonderful job shortly after I was sexually harassed and I never reported that partner’s conduct to Human Resources. Why? Because it takes an extraordinary amount of courage to come forward and put your credibility and career on the line, all the while fearing that, even if you are believed (and that is by no means a foregone conclusion given that investigators frequently hide behind the “he said-she said” curtain to issue “inconclusive” findings), you will be forever viewed as a sexual harassment victim. I regret to say that at that relatively early point in my career (and at a particularly vulnerable time in my life), I did not possess that courage. That is why, to this day, while I am proud of all of my clients who confront discrimination and persevere, my heroes are those who seek to hold sexual harassers accountable for their conduct. And I find that the ones who are the most tenacious in that quest are those who do so not only for their own empowerment but because they want to ensure that others who may not yet be ready to speak truth to power will not meet a similar fate.
Tell me a little more about your training, Dan. Does it focus on some of the more subtle forms of sexual harassment which may be more challenging for the perpetrator and victim alike to recognize? How does it empower those who believe they may be victims of sexual harassment to feel safe in coming forward? Do you also train investigators to recognize that a part of their job is to make credibility findings and not throw up their hands when the sole evidence that exists (which is often the scenario in sexual harassment cases) comes from the interview statements of the alleged perpetrator and victim?
Dan: I am sad to hear about your experience, Nina. When even the employment lawyers get harassed, it shows how serious an issue we still have in this country. Moreover, the unreported nature of some sex harassment incidents is a pernicious issue for employers to be worried about. As someone who represents employers, it’s something I talk about with clients too. We know that it takes a lot for most people to speak up and report such incidents and by the time employers hear about things, there’s probably a lot that has already happened. Unfortunately, I worry that your experience is more common than the statistics show. And, as a father of two wonderful daughters, it’s something I worry about too — is sex harassment ever going to be eliminated? Thanks for sharing your experience, Nina — however difficult it may be.
So back to the training — the training we do talks about harassment in all forms. And some of the “new” ways too. Like text messages (think: Anthony Weiner), or even Facebook friend requests! In some of our trainings, we use “voting buttons” that allows the audience to choose from a multiple choice answers. I’m always amazed at the splits that arise. Sometimes the splits are along gender lines — recognizing that what seems innocuous to one group of people may be offensive to another — or along age lines. There are no easy answers.
But we also talk about the importance for managers to report what they see. The NYC transit warning of “If you see something, do something”, seems particularly appropriate in the workplace. Ultimately, it’s not just individuals who are the subjects of harassment who we want to feel comfortable reporting incidents, but we want managers and supervisors to report what they see too. I tell people in the trainings I do that there may be something that someone is thinking about in that very training that they may want to report.
What do I mean by that? Well, many many years ago, in one of my early jobs, I was at a lunch with some guys from the workplace. In that lunch, one of male co-workers I was with made a remark about how a waitress looked in an outfit and made a remark that an employee in the office also wore similar revealing clothes. Being younger and wanting to “fit in”, I didn’t say anything, sitting in a bit of stunned silence. I still think about how I should’ve said something but it was hard in the moment. I decided to leave that job shortly thereafter — not my type of crowd — but I wondered how many other people put up with that behavior?
Speaking up — whether on your own behalf or for others — is really hard. Just look at the testimony from former FBI Director James Comey earlier this month about how he regretted not speaking up to President Trump (and there have been comparisons to sex harassment cases too!). But I think companies that are moderately successful in combating harassment have HR staff that is welcoming of such reports. I think reports are a sign that you are doing something RIGHT, versus a sign of a larger problem. It means employees are comfortable in reporting things.
Employers shouldn’t just rely on a “he said-she said” dispute; it IS okay to make a credibility determination. But I will say that some employers worry about making a credibility determination AGAINST the person who made the report for fear that they will be tagged as “blaming the victim”. In those instances, it’s easier for employers to take a more neutral stance.
But if an employer DOES substantiate a complaint, what then? Not every complaint means that the harasser needs to be fired, and yet, sometimes the discipline imposed by the employer is deemed by the reporting employee to be “weak”. What would you advise employers in that instance?
Nina: Good question! By the way, just to be clear, the sexual harassment occurred at a big commercial litigation firm, prior to my becoming a plaintiffs’ employment and civil rights lawyer. There is doubt, though, that the experience shaped my decision to become one. I love it when a negative experience opens the door to a positive one. In fact, that is one of my primary goals in my representation of every client!
Back to your question, though. I agree with you that not every complaint means that the harasser needs to be fired, especially if he is a first-time offender and the conduct was not egregious. I see such situations as opportunities for enlightenment and hopefully, with expert guidance such as yours, the harasser will experience the epiphany needed to ensure his conduct is never repeated. There are three key steps an employer can take to maximize the chances that a victim will be comfortable with its decision to impose discipline on the harasser short of termination. First, the employer should acknowledge the victim’s experience and make it clear that the conduct to which she was subjected was unacceptable. Second, the employer should communicate as much information as it can to the victim (while being mindful of confidentiality considerations) as to the steps it has taken to ensure such conduct will not happen again. Third, the employer needs to impress upon the victim that retaliation by the harasser or anyone on his behalf will not be tolerated and encourage her to report such conduct immediately.
Thank you for sharing your experience, Dan. Your frankness and willingness to examine all sides of an issue are some of the many qualities I admire about you. Any final thoughts, my friend?
Dan: Topics like sexual harassment are inherently complex. And often times, it’s reduced to just a remark that it’s nothing more than a he-said/she-said dispute. Obviously, real life is far from that.
Thanks for the chat. Perhaps given the timing of things, we should tackle vacation in our next post. Enjoy summer!