Sexual Harassment Best Practices

The spotlight on sexual harassment has generated an abundance of employer introspection.  For tribal employers, what should that introspection include?

Since the late 1980s when the United States Supreme Court engaged the sexual harassment conversation through several important cases, the conventional wisdom for employers included three recommendations:  (1) prohibit sexual harassment in a clear policy; (2) train employees on the policy; (3) enforce the policy.  That three-part recommendation may have helped employers sell their “commitment” to the removal of sexual harassment from the workplace if those employers were sued for harassment, but for anyone awake in the last year, with the stampede of sexual harassment claims in the media, checking those three boxes is not enough to address sexual harassment in a meaningful way.  On the other hand, even if those three recommendations did not adequately address sexual harassment, did it start a conversation which could have generated meaningful reform?  Answer:  Yes.

Therefore each of those boxes is checked below, but more importantly, each of the boxes is explained in detail.  Tribal employers should engage the harassment conversation by comparing the employer’s practices against the specific suggestions below.

Context.

What ingredients are included in an effective sexual harassment policy?

A sexual harassment policy by itself is not enough.  The sexual harassment policy should be part of a three policy approach.  First, there should be a policy which prohibits harassment and discrimination of any conduct linked to the tribe’s definition of protected class.Protected class is a list which may include (for example) race, religion, national origin, gender, disability, age, sexual orientation or pregnancy.  The general harassment policy, the first of the trio of policies, states:  The ABC Tribe prohibits the use of race, religion, national origin, gender, disability, age, sexual orientation or pregnancy in making employment decisions like hiring, promotion, job assignment, training or termination.   Once, general harassment is defined and prohibited in policy, the second policy to include is a more specific sexual harassment policy.  Third, the tribal employer should address bullying in the workplace by defining it and prohibiting it. These three policies working together address harassment and discrimination linked to any protected class, sexual harassment specifically and bullying as a catch-all for obnoxious workplace behavior which is not captured by the protected class linked harassment policies.

Box 1.

Now with that context (sexual harassment policy as part of a hat-trick of policies), what ingredients are included in an effective sexual harassment policy?

The sexual harassment policy should include a clear definition of sexual harassment which typically includes the sub-categories of quid pro quo and hostile work environment.

Quid pro quo is Latin for this for that which translates, for example, to a person in power promising a job promotion, an increase in wages or a relaxed schedule in exchange for a romantic relationship with a subordinate employee.  These relationships may be consensual but they still violate the rules since the subordinate employee is receiving benefits from the exchange with their boss which are not extended to other employees.

Hostile work environment is frequently misunderstood by employees. Employees working for tribal employers are just as confused as employees working for non-Native organizations.  Sometimes an employee’s confusion regarding what is, and what is not, a hostile work environment, influences the way employers address the behavior in the workplace.  Employers which improperly label hostile workplace behavior as a subset of sexual harassment likely will increase the perception of risk within the tribal organization. Those misperceptions likely will make it more difficult for the tribal organization to make a fair employment decision.

Over fifty years ago (July 2, 1964) the United States defined gender based harassment to include, among other things, unwelcome sexual advances, requests for sexual favors and other verbal and physical conduct of a sexual nature when such conduct creates an intimidating, hostile or offensive work environment.  By the middle 1970s the term “sexual harassment” was coined and its frequency of use increased significantly when law professor Anita Hill testified against her former EEOC boss Justice Clarence Thomas in the Senate’s Supreme Court nomination hearings.  Those hearings generated lots of debate about whether Professor Hill was a victim of sexual harassment by her former boss or whether Justice Thomas was the victim of political maneuvering.  Even though the term is frequently used, employers and employees do not always use the term precisely.

The definition of a hostile work environment intersects unwelcome sexual behavior and a hostile work environment.  If the behavior is not sexual in nature and only hostile in nature, there is no sexual harassment.  In the absence of facts revealing a hostile work environment as a subset of sexual harassment, the employee’s hostile behavior should not be tolerated but instead must be managed, but not through the employer’s sexual harassment policy or law.  The behavior is managed, not through the sexual harassment policy, but instead within the employer’s zero tolerance bully policy. For less severe behavior, employers may address the misconduct through a “get along well with others” policy which demands professionalism from employees in the tribal workplace.

Again, it must be emphasized, that whether the workplace behavior is sexual harassment or workplace bullying, both are obnoxious and must be addressed by the employer. Both are disrespectful of victims and there should be no tolerance for that behavior.

With that strong statement in mind, employees who are assertive, grumpy or even hostile are not creating a hostile work environment as defined by typical legal standards. Unless the assertive, grumpy or hostile workplace behavior also includes a sexual component, there is not a hostile work environment as defined by typical sexual harassment laws.

Why is the distinction between sexual harassment and workplace bullying important to tribal employers?

This distinction between addressing the obnoxious behavior outside the sexual harassment policy when the behavior is not sexual harassment is important because of the employer’s increased potential for legal liability relating to harassment versus less legal liability for obnoxious behavior which does not fit within the definition of harassment. If an employer perpetuates the employee’s misclassification of assertive workplace behavior as a subset of sexual harassment, the employee may be more likely to assert legal and administrative claims.  On the other hand, if tribal employers have strong policies which address true sexual harassment and bullying, and address both in the workplace in a no-nonsense manner, most employees will get what they want; a safe place to work without the litany of real problems generated by harassment and bullying.

Once these definitions are established, there should be a clear statement prohibiting sexual harassment in the workplace.

A good policy will include examples of behaviors which violate the policy.  Definitions alone do not clearly articulate behaviors which violate the policy therefore the inclusion of examples of violative behavior is important.

The policy should include a clear statement prohibiting retaliation for all involved in the reporting, investigating and enforcement phases of a sexual harassment complaint.  As the Equal Employment Opportunity Commission wisely advises, retaliation is a central issue which must be assertively addressed in a manner which is just as serious as the harassment itself.

The policy should include safe protocols for reporting harassment as a victim or as a witness without regard to chain of command.  The chain of command is important for the orderly and efficient way employers operate, but in the context of harassment, when the alleged victim’s supervisor may be the alleged harasser or indifferent to the victim’s plight, policy should open the door to a report to human resources, management and even in-house legal counsel.

Box 2.

What ingredients are included in effective sexual harassment training?

Why is the conversation important?  Harassment training must be more than the employer’s attempt to reduce the potential for a claim of harassment.  Employees must understand that prohibiting harassment is primarily about doing the right thing.  Women and men report to work because the employer has promised a safe working environment and that promise of safety includes a safe building (the roof will not collapse) and a safe working environment (you will not be harassed).  Employees must understand that the harassment policy and training show that harassment has a negative effect on other employees and the employer, can result in employee discipline or termination. Moreover, harassers will have difficulty getting another job and can be sued.

Effective training discusses what harassment is and what it is not in a way which speaks to non-HR employees in a clear way.  Simply using the harassment terms of art like hostile work environment without clearly defining the term will not help the participants. Thereafter, just like the policy, the training should include specific examples of behavior which violates the policy.

There should be a conversation about how to report an alleged violation.  Victims, witnesses and all managerial employees should be strongly encouraged to report behavior which may violate the policy.

A central focus of the training should be a clear declaration that the employer will not tolerate retaliation.

The training should be attended by and endorsed by leadership.  Consider the signal sent to all employees when the tribal chairman attends the training and reinforces the key points made by the presenter.

The training must be interactive with the audience.  One way of making the training interactive is a quiz drafted to generate meaningful conversation and review of the important takeaways.  At the beginning of the training session, tell the participants there will be a quiz and their attentiveness increases.  At the end of the lecture (hopefully conversation) portion of the training, the participants take the quiz with other participants (3 to 5 in a group).  After the participants take the quiz together, the quiz is debriefed by the facilitator as part of a class exercise.  I have a sample quiz if you want one.

Box 3.

What is meaningful enforcement of the sexual harassment policy?

There are no exempt employees in the context of harassment.  That politically connected director who is allegedly harassing a subordinate must be investigated just like the employer would investigate a less powerful entry-level employee.

Depending on the facts and the employee’s history, employers must be prepared to discipline when appropriate, terminate when necessary, and provide a criminal referral if required.

The employer cannot tolerate any form of retaliation during and after a report of harassment.  When the employer closes its investigation file, the employer must open its eyes to the real threat of retaliation against the victim, investigator and witnesses.

Allegations of harassment must be timely investigated by independent and experienced investigators.  Independent and experienced investigators are likely members of the human resources department, but in some cases, choosing an investigator from outside the organization best serves the tribe.

There should be a real reluctance by leadership to second guess the investigation process and the discipline chosen.  One way of undermining the integrity of strong policy and objective enforcement, is for leadership to Monday-morning quarterback (criticize) a decision to discipline a popular employee.  Of course leadership must supervise decision-making by the organization, but care must be taken to avoid the chilling effect of unwarranted scrutiny of a discretionary decision.

Recommendation: Actively prohibit harassment and bullying in the workplace by examining the employer’s policy, training and enforcement protocols.  Drill down on each and make sure the boxes are checked in a meaningful way.

About the Author:

Richard McGee is a lawyer in Minneapolis, Minnesota who focuses his practice on gaming, gaming regulation, tribal employment and litigation in tribal, state and federal courts.  Richard has the privilege of working with tribes and tribal organizations on Human Resources matters including training.  Additionally, tribes ask Richard to address specific topics while incorporating the tribe’s related laws and policies into the sessions.  This is an invitation to engage Richard to produce and facilitate training for your tribe.