It's been said that "My rights end at the bridge of your nose." This is a great defining statement about physical rights and property rights. But what about your right�or should I say expectation?�of emotional and psychological safety in the workplace? Harder to define, isn't it?
Laws not only protect individuals against discriminatory and harassing behavior with sexual overtone, but also against discrimination based on race, religion, gender, color, sex, sexual orientation, marital status, national origin, ancestry, disability, medical condition and age. (It also protects against denial of family, medical care leave, and pregnancy disability leave, or reasonable accommodation.) In India there is also protection against discrimination due to caste affiliation.
Indeed, one of my public agency clients reminded me that he regularly receives complaints about harassment or discrimination, but few of these are about sexual harassment. The complaints that do come in, having to do with gender, cultural and racial differences, often state that these individuals believe they are being treated differently from others in their department about work-related tardiness, uneven workloads, not being promoted, not being paid equally, etc.
When I talk about sexual harassment, and conduct workshops on the subject, I am using it as a metaphor for all kinds of harassment or discrimination. Unfortunately, people are far less likely to be generous and kind when a gun is held to their head than when they are requested to be courteous, and behave nicely of their own volition. Thus, the manner in which training about sexual harassment, discrimination, and diversity is conducted is critically important to the level of real compliance, rather than merely "politically correct" behavior.
In this article I'd like to provide a more comfortable basis for understanding and accepting the intent of the law. I will also address some of the more bizarre extremes to which it has gone. Most of all, I'd like to convey why I think it is important to provide a psychologically and emotionally safe environment in the workplace.
Sexual harassment policies, procedures and training are mandated for workplaces of all kinds�from government agencies to small private businesses of 50 or more employees. Current standards are increasing the frequency with which training is mandated for supervisors in companies of 50 or more employees.
While there is not a direct demand for smaller private companies to provide the same frequency of training, it is probably a good idea for anyone employing others or serving the public to be aware of the letter and spirit of the law and the reasons for its being so that they too can take steps to protect themselves from lawsuits.
Sexual Harassment in Government Agencies:
Government agencies are the most vulnerable to litigation regarding sexual harassment because:
- They receive numerous requests from the public and the news media to see their paperwork, with which they must comply. This makes their communications transparent and open to public review.
- E-mail systems leave a trail that can haunt governmental executives, where even a silly joke between themselves can later come under public scrutiny. Any communication can form the basis for a complaint that management helped foster a hostile work environment atmosphere in an unrelated sexual harassment complaint.
- They need to be role models and provide the most stringent requirements for behavior, as well as demonstrate clear and consistent standards for investigation and discipline.
- They employ and work with people from many different cultures with many different levels of education, sophistication, and behavioral expectations.
- Union representatives are looking over their shoulders at all times. Union representatives are frequently looking for the next case to arbitrate that they deem violates their members' rights due to a harassing supervisor or manager.
- Any overt problems can and do get into the media.
- Government entities are seen as the "deep pockets" and often have lawsuits filed against them for breach of behavior. Many of these lawsuits are based in falsely exaggerated breach of behavior.
Since government agencies are held to a higher standard and should be models of improving the working conditions of employees at all levels from all walks of life and cultures, the issue of discrimination and sexual harassment and how it is handled is of prime importance. Important too is to find strategies that do not reward those making false claims�a problem being faced more and more by some city governments I know.
A large city government here in California feels victimized by the amount of sexual harassment lawsuits brought against it by lawyers who see government as the deep pockets and who are willing to take cases on a contingency basis. Frivolous and false lawsuits are filed�and unfortunately settled due to this practice.
The Legal Environment
While one could easily argue that these laws have violated the first amendment rights of individuals to say what they please, as well as the rights of employers to create the workplace culture of their choice, the laws make good sense, if you look at them not from the prospective of right/wrong or good/bad, but as a method of creating a working environment that is as psychologically safe for people as it is physically safe for them.
What is emotionally or psychologically comfortable for one person might not be comfortable for another. For example, I recently left a telephone message for a friend and used the words "damn" and "hell" in the message, thinking nothing of it. He was irate and complained that I had used "foul language" that could have been overheard by his son. Foul words? I thought not. Nevertheless, I am determined to respect his desires when in his home or dealing with his family. I consider that to be common courtesy.
In today's workplace certain types of speech are outlawed since they are considered a form of harassment and discrimination. The argument has been made that these laws restrict people's rights to free speech. They do. Perhaps though, we can approach the problem from the point of view of courtesy and comfort for those more sensitive in the workplace. In my workshops, I take this approach and find there is far less resentment from people being asked to refrain from certain behaviors and words than by merely telling them they were "wrong" and in violation of the law.
In his article for the Georgetown Law Journal, "What Speech Does 'Hostile Work Environment' Harassment Law Restrict?," Eugene Volokh observes that outlawed speech need not be obscene, fighting words, threats or other constitutionally unprotected statements. He is correct. That's why this area of employment law is so problematic for so many of us trying to make the workplace a reasonable place for all employees.
While beauty might be in the eyes of the beholder, insults are in the ears of the receiver. This fact is why it is so difficult to assess what is inoffensive and what is insulting. It also places careful people in a position of being stilted and politically correct, instead of warm, inviting and reasonable.
When traveling the country conducting sexual harassment, discrimination and diversity training I discovered that the range of acceptable and unacceptable statements and behaviors varied from locale to locale, from culture and religion to culture and religion. There was no perfect "one size fits all" solution except to go to the safest extent possible and protect the sensitivities of those with the most extreme expectations. Thus, even the friendly casual and harmless flirting of my generation is now taboo. Compliments about how someone looks or dresses are dangerous because they could be misunderstood.
Some organizations even require that couples who work together and want to date provide signed contracts attesting to the fact that they have a voluntary agreement to date. This is silly because one of the parties could always say they were coerced into signing the document in order to keep his or her job.
The latest in California is that workers who lose promotions because some other employee who was sleeping with the manager received the promotion can sue their employers for sexual harassment. California State Court recently decided that a worker can suffer sexual harassment even if her boss never asked her for sexual favors or made inappropriate advances.
- Widespread favoritism based upon consensual sexual affairs may imbue the workplace with an atmosphere that is demeaning to women because a message is conveyed that managers view women as 'sexual playthings.'
— Chief Justice Ronald M. George
This decision will force employers to monitor office romances. Any legitimate relationship can be construed as favoritism against others. In my opinion, this is really going too far. It is quite common for people to meet in the workplace, get to know each other well because they see each other daily, and fall in love. Are we next going to outlaw love?
In spite of going way too far, the intent is honorable. The intent is to ask people to refrain from behavior (words, deeds, looks) that any sensible individual would not want to use in front of a child, daughter, sister, spouse or great-grandmother. Socially, we don't have problems with requests of this nature because we have a choice. We choose whether to accept the terms of the requesting party and choose whether to associate with them. (I recall a similar plight during the many years when people were still smoking and their friends were fighting with them about not smoking near them or in their homes.)
The Workplace Environment
Our workplace choices are more limited than our social options. Although most of us have the luxury of choosing whether to work for a particular organization or not, once there all choices of where we sit, with whom we interact, and even whom we overhear are severely limited.
That's where the problem begins. Today, people work with others who have been raised differently from them. In our quest to make it as psychologically and emotionally safe for all, we are asking everyone to behave in a manner comfortable for the most conservative common denominator.
In addition, we are introducing people from many cultures into our workplace�some have been here only temporarily on visas, others permanently. Their cultural background and level of tolerance for informality, teasing, treatment of women, and biases may well be different from our own. We need to learn from them what is and is not acceptable language and treatment�as well as teach them our expectations and legal demands.
Since there is such a wide range of beliefs about acceptable behaviors, and lawsuits settled in favor of the complaining party, many organizations are demanding a policy of zero tolerance. Government agencies must make these demands.
One example is what has been termed "shop talk." This is "salty" language used in factories, warehouses, and small auto body shops. Although it might be the norm in these environments, even police and fire departments have to be more professional and proper in their language use. This of course poses a bit of a problem for men who live and eat and sleep and sometimes even die together.
Have we gone too far demanding zero tolerance?
Perhaps, but employment attorneys are paid to protect their clients�the employer. Since we live in such a litigious environment and cases all too often are adjudicated in the favor of the most extreme complainants, lawyers advise their clients to play it safe. Safe means taking the meaning of the law almost to its edge.
Where zero tolerance is the norm, employees are being punished for the mildest teasing or slightly ribald overheard comments. Some HR departments have indeed gone too far, and interrogate instead of interview, assume guilt instead of innocence or neutrality, and punish rather than educate. They do not know how to make it more comfortable for both the alleged offender and the person complaining. In addition, the "he said/she said" nature of many of the complaints has led to threats of lawsuits by those falsely complaining, and settlements out of court because of fear of losing at trial.
When unions are involved, as they are all too often, the union representative is typically on the side of the complainant and exacerbates the conflict between the alleged victim and management. This of course is especially true when the person alleged to have behaved badly is a supervisor or manager.
Government policy and procedures, as well as those of many large companies, are very clear in the actions to be taken, the discipline to be meted and the documentation to be created. All too often the following of the rules gets in the way of handling what could be a minor situation in a more conciliatory manner.
In California today, any employer with 50 or more employees must:
- Develop and implement a sexual harassment prevention policy with a procedure for employees to make complaints and for the employer to investigate complaints. Polices should include provisions to:
- Fully inform the complainant of his/her rights and any obligations to secure those rights.
- Fully and effectively investigate.
- Take prompt and effective action.
- Post the Department of Fair Housing [notice].
- Distribute an information sheet about sexual harassment to all employees.
- All employees should be made aware of the seriousness of violations of the sexual harassment policy. Supervisory personnel should be educated about their specific responsibilities. All employees must be cautioned against using peer pressure to discourage harassment victims from complaining.
- [Offer] A program to eliminate sexual harassment...
(State of California, Department of Fair Employment & Housing, Brochure DFEH-185 (04/04))
In addition, frequent re-training of supervisory and management personnel is now mandatory. Other states besides California have similar requirements.
The definition of sexual harassment is very broad and in some cases is subject to the interpretation of the alleged victim. Although the law attempts to use the "reasonable person" standard, in actuality, as Volokh and many other attorneys have pointed out, employers often have been held liable for behavior or words many of us would find only mildly problematic.
Cases have been brought in which it was very clear to all concerned that the complaining parties were lying out of spite, yet the cases were settled, with employers and their insurance companies paying huge amounts to the complaining party, because attorneys stated: "taking it to court would cost too much money." This practice of settling encourages both false and frivolous claims and should be stopped.
A situation in one of our cities is a prime recent example of what could have been a minor problem but escalated into a major problem. A supervisor hired a new employee and put her on probation. During her first months of work, he invited her to lunch frequently, wanted to give her neck massages, and suggested they carpool together. She refused all these invitations. Later, during her first performance review, her work was found to be sub-standard, and she was not hired on a permanent basis. The same supervisor was the one who discussed it with her. She became upset and hired a lawyer who sued the city for both sexual harassment and wrongful termination. She lost the wrongful termination case because there were other co-workers who testified that her work was indeed sub-standard, but it cost the city a great deal of money and wasted time to fight it. She won her sexual harassment suit, even though nothing happened but a series of inappropriate invitations. If the inappropriate invitations were nipped in the bud, this lawsuit would never have been brought.
Laws also demand protection from a hostile work environment. This means that someone overhearing or observing offensive behavior has the same "rights of protection" as the victim of overt sexual behavior. The workplace must be as devoid from anything resembling sexual or any other form of harassment or discrimination as is humanly possible. Unfortunately, this too often leads to fear and political correctness to the point where friendly teasing and flirting become unacceptable.
For example, a man was losing his job due to an overheard comment that was misinterpreted and reported to HR in a huge organization. The man, "Joe," was friendly with a woman employee, "Sue," from another department. Over lunch a week or so before the incident she confided that she and her boyfriend had fought and split up. She was devastated and wanted to try to renew the relationship. She asked Joe for some advice and they formed a strategy.
The following week he saw her in the cafeteria, a short distance away from him and he stage-whispered, "How's your sex life?" She smiled and gave him a thumbs-up. Someone else overheard his question and reported him to HR. Had I not been consulting to the company at the time and training HR in how to conduct unbiased, sensible investigations, he might very well have lost his job.
There is no accounting for sensitivities. A word that's acceptable in one culture might very well be offensive in another. This is particularly true for slang words identifying body parts such as breast and penis. Therefore, being cute and clever regarding these terms just doesn't work in the workplace.
So concerned have we become that we no longer invite comedians to corporate or government social functions. Not only are we being asked to modify our speech, we are being asked to change the pictures in our offices as well as the symbols we use. It may seem silly at first, but let me offer you just one example from my personal experience.
Several years ago when I was consulting with the staff of a hospital's emergency room (ER), the head ER doctor asked me to help him with a patient who had been injured in prison and was brought to the hospital by guards for treatment. The man reported severe knee pain. The physician could not find physical evidence to support the level of pain being complained about. He wanted me to interview the prisoner-patient to see what I could learn.
I walked into the treatment room and inwardly (at least I hope it was only inwardly) recoiled. The prisoner, a member of the Aryan Brotherhood had swastikas tattooed on his arm. I'm Jewish. My stomach knotted. Although I told myself I was being silly�that the tattoos on a prison gang member were a safety measure for him�I couldn't reach beyond my emotional reaction and touch his arm. I knew I was wrong. I knew that if he did not bear that offensive symbol, I would have touched his arm or shoulder to show empathy and support. Someone else would have ignored the tattoos and concentrated instead on the man and his pain.
Finding the Right Balance
An example of the problem of finding the right balance comes from the American experience in Saudi Arabia during the Gulf War. There was an American base on Saudi land and diplomats had negotiated all arrangements regarding food, religious observances, clothing off base, etc. Apparently they forgot about the swimming pool on base. The American women soldiers wanted to swim and sunbathe in their bikinis. The Saudi personnel servicing the area were horrified and offended. They thought the women were being lewd and should be fully covered at all times. The American women were adamant in their belief they should have the freedom on base afforded them stateside. The conflict was eventually resolved by freeing Saudi employees from responsibilities in the vicinity of the pool during the hours the Americans were permitted to swim.
I know of a California case in which harassment was charged because on his desk a man had a snapshot of his wife and children wearing bathing suits at the beach. Apparently his wife looked too good in her bikini and it upset an employee who observed it while in his office.
The law does not demand dismissal or even punishment in such mild cases. The demand is for immediate and effective action�action that will stop the inappropriate behavior from re-occurring. Certainly, there are examples of disgustingly offensive behavior that any reasonable person would consider inappropriate and that would warrant harsh sanctions. These are not the areas that give us so many problems. It is the subtle distinctions, the cultural differences, and gender sensitivities that we need to look at from the point of view of courtesy and correction, rather than legal intervention or even internal punishment.
True, there still are cases of blatant harassing and discriminatory behavior. As one HR person expressed it to me, "Some people are still in the twentieth century and think they can treat women as objects to be leered at and touched." In these cases stringent discipline should, and usually is, taken.
Harassment and discrimination are truly potential problems that need to be addressed in the workplace, as well as in the schoolroom and homes. People need to be given permission to confront unwanted behavior as soon as it occurs and pleasantly. A simple statement such as, "I don't like that, please don't do that around me," might suffice. Most people don't want to offend others.
Training, geared toward helping people understand each other and their potential sensitivities, without making one group "right" and the other "wrong," is also a great preventive process. Too, consultants need to learn to handle these issues in a more effective manner than many do today.
Since most people are benevolent and mean well, more often than not appropriate action is a conversation about why the behavior cannot be tolerated in the workplace. It is not that one person is right and the other is wrong. It is not, as some sexual harassment consultants and HR trainers seem to believe, that all women are pure and all men are evil, or one group is consistently being seen as less valuable than another. It is not a desire to infringe on first amendment rights, although sometimes these restrictions do. Rather it is an attempt to find a way to make it safe for even the most vulnerable or conservative people to work side by side with others and to protect employers from lawsuits resulting from their failure to maintain the degree of psychological and emotional safety demanded in today's workplace.
In other words, as happens all too often, in our zeal to protect one group of people we are infringing on the rights of others. If we conduct our workshops, investigations, and interventions with grace and kindness, we mitigate the annoyance of those who believe they have the right to say and do what they please, whether it offends others or not. If we explain why we are trying to provide so much extra protection and safety for those who are the most conservative, those freer in their speech and behavior will likely understand and will be more apt to comply. It's not about right or wrong. It's about us all trying to work together with the least amount of friction.
About the Author
Dr. ArLyne Diamond is a Management and Professional Development Consultant based in Santa Clara, California. She has been a subscriber to and fan of Reason Magazine for many years and is currently a member of Reason Foundation. Dr. Diamond offers a friendly, rational and objective approach to her work with people. She consults to executives, managers and professionals both individually and in groups helping them with issues related to getting the most out of themselves and others in the workplace. Further information can be found on her Web site: www.DiamondAssociates.net or by contacting her at ArLyneD@aol.com. Her phone number is 408-554-0110.