Show Notes: Episode 17 – Constructive Performance Reviews
December 4, 2017
Show Notes: Episode 18 – SHRM Credit: Harassment
December 18, 2017

Click here for this episode’s show notes.

This transcript was created using an automated transcription service and may contain errors.

JoDee  00:08

Welcome to The JoyPowered® Workspace Podcast, where we talk about embracing humanity in the workplace. I’m here with Susan White, a national HR consultant, and I’m JoDee Curtis, owner of Purple Ink and author of the “JoyPowered®” workspace, the inspiration for this podcast series.  Today we are going to explore the topic of harassment, from both the employer and the employee perspectives. Susan, it seems like we can’t turn on the news or read the paper without hearing about a harassment issue. It seems to be everywhere. Why do you think we hear about it so much more?

Susan  00:48

I think that people are more aware today of what their rights are, and I think because of all the news media that has focused on some of the more high profile cases of late and complaints of late, that individuals realize that when they go to work, they have a right not to be harassed. And then, I think when people do feel like they are, that they’re much more likely to share it with their friends on social media, Facebook, Twitter, LinkedIn, I think all over people are more likely to talk about it than they ever were in the past.

JoDee  01:17

Yeah, good point, just social media alone. Right? We hear more about everything. Everything that’s going on in the world, we hear more about it than we ever did. Although I still suspect there’s a whole lot of harassment cases going on that we are not hearing about it. Right?

Susan  01:37

And why do you think maybe there are still some that people aren’t talking about?

JoDee  01:40

I think fear still, that people are fearful of retaliation, fearful of, you know, losing their positions, of losing respect, hurting someone else in the process, even that people…because I think people don’t even always report it if they are observing it going on, maybe they’re not even the one being harassed.

Susan  02:06

You know, I have talked to people who I truly think were being harassed, but in their own minds, they weren’t sure. They wondered if they had invited that attention. I think that self-doubt is probably one of the things that does occur more frequently than we would really like to think about.

JoDee  02:19

Right, right. But definitely out there in some of the highest levels of organizations. We’ve heard about sports stars and movie stars, sexual harassment, bullying, even bullying in schools. Right? Is a form of harassment. From kindergarten to the tops of the organization.

Susan  02:42

No, you’re right. I was just reading in Slate Magazine that Fox News has spent over $50 million – and they said that was a conservative amount – between 2016 and 2017 just on their bevy of issues, clearly, with Roger Ailes and Bill O’Reilly, and then even Eric Bolling, recent allegations in September, that when you think about a new…news organization like that, highly respected, and yet they are certainly having their year of news on the harassment front.

JoDee  03:10

Yeah, it is so important for organizations. It can cost them not only valued employees, it can cost them higher turnover, but just pure dollars. Right? Spending on legal fees, spending on consultants, spending on investigations. Crazy amount of money. So it’s important for both individuals, that is, employees, to understand their rights and what processes they should follow to report it, and also for organizations to make sure it’s not happening within their departments and companies as a whole.

Susan  03:48

Very true.

JoDee  03:50

So I’ll just start with the legal definition of harassment so we know what all we’re talking about. Bottom line, it’s unwelcome conduct. But that can be verbal, physical, or visual, and it is based upon a person’s protected status, such as sex, color, race, ancestry, religion, national origin, age, physical handicap, medical condition, disability, marital status, veteran status, citizenship status, or other protected group status. This pretty much includes everyone, don’t you think, Susan?

Susan  04:29

Yes, I used to…I used to have a client who used to say to me, “Susan, I am the only person in America that’s working that’s not in a protected class.” And I’d say, “No, you’re actually old.” Over the age of 40.

JoDee  04:42

That’s one too!

Susan  04:43

Yeah.

JoDee  04:44

But that’s the legal definition. You know, ultimately, I think, again, that important part is unwelcome conduct. It doesn’t doesn’t matter if you’re in a protected class or not in a protected class. It doesn’t matter if you’re a part of senior management or a brand new frontline employee, if we have unwelcome contact, it’s a problem. And personally, it doesn’t matter what your status is, we should be creating safe and JoyPowered® environments for others, and if people feel harassed, it should be dealt with immediately. Note also, though, that harassment can be hostile acts, slurs, stereotyping, threatening written or graphic material, and that is not all inclusive. Sexual harassment might be all of the above, but also includes sexual favors or advances and unwelcome physical context. Again, it can be verbal, visual, or physical.

Susan  05:46

You know, Jody, when I start to talk about making sure that your workplace is JoyPowered® and free of harassment, I will often have someone say to me, “Listen, I met my wife here,” or, you know, “I’m dating a guy down in the other department. Susan, am I at risk here?” And I always like to say if possible…you know, you don’t know if you ask somebody out on a date, if they’re going to feel like that was unwelcomed conduct or if it’s going to be, you know, joyfully received news. So do you have any advice? How can relationships in the workplace ever progress beyond platonic when there is this fear about I don’t want to be accused of harassing someone?

JoDee  06:24

Right. Well, certainly, it is a tricky situation, right? I know lots of people who have also met in the workplace. It certainly is easier if one is not working for the other one.

Susan  06:37

Yes.

JoDee  06:37

And it also helps if they work, even, in entirely different departments or groups. So those are easier to deal with. But it happens with people who…mostly who work closest together, right?

Susan  06:51

That’s right.

JoDee  06:52

So difficult to avoid.

Susan  06:53

When it does happen, you know, and if it is a manager who’s got a staff member reporting to him or to her, that this starts, you know, my advice always is, let’s separate, let’s make a decision about who’s going to work, maybe, in another department, another division, another location, so that we don’t have that happening in the workplace for fear the relationship could go sour. And at that point, whoever’s in the more senior position really is at risk, I think, for not understanding that the relationship has gone sour or that it is ending.

JoDee  07:26

Right, right. The responsibility, you’re right, whether they like it or not, is with the person who is in the position of authority. And they’re the ones that needs to be extra careful that a quid pro quo position is not happening, where the person feels like, I need to go out with them because you’re my boss, I need to go out with you, or have lunch with you or have dinner with you, because I want this project or…it can’t be a this for that situation of any kind. There are certainly many specific laws surrounding harassment. The most obvious or most well known are the Civil Rights Act, the Age Discrimination Act, the Americans with Disability Act, and Pregnancy Discrimination. Again, bottom line, right, we shouldn’t be doing this to anyone, but if if it’s happening with someone directly involved in any of those situations, it’s gonna make it a lot more expensive to deal with. So have to be even extra careful.

Susan  08:33

And, you know, you brought up the fear of retaliation, and that’s maybe why some people don’t bring it up, but there are protections under the Civil Rights Act for the individual who does raise a claim of harassment, and if anything happens to that individual afterwards, is considered to be retaliation. And so a company, once they have a claim, they need to be very, very careful that nothing else happens to that individual that could be construed as retaliation for doing it.

JoDee  08:59

Right. Right. We talked a…a little bit about supervisors, but ultimately who’s responsible to deal with harassment claims or harassment issues?

Susan  09:12

Everyone!

JoDee  09:13

Yes, yeah. I think if we’re an employer, a supervisor, an owner, we’re on the board of directors, it’s definitely our responsibility to make sure that we in that group are not giving any indication or an…any implication that that is appropriate or allowed in the organization. But certainly, as an employee, as a peer, I think it’s our responsibility to report it if we see it happening to ourselves, but also to others, to help ensure that others that we’re working with are in a safe and positive environment as well.

Susan  09:59

And you know, JoDee, it’s interesting. If you are a supervisor in your company, or maybe you’re the HR director, or your a board of director of a particular company, if…this…this is not unusual, and I’m sure it’s happened to you a lot, JoDee, but you’ll have an employee, you know, take you aside, say, “Hey, can I talk to you for a few minutes, there’s something I want to share. Now, I don’t want you to do anything about it, but I need to tell you something.” What I have learned over the years is to immediately stop the individual and say, “I just need to share with you, I’m happy to talk, but if you’re going to share something with me that is illegal, amoral, or against the law, I have a responsibility to investigate it and take action if necessary.” And so usually the person laughs and says “Oh, gosh, no, Susan, I just want to complain about where you parked in the parking lot.” But there are times that they say, “Well, I don’t know if if this is legal or not, I don’t know if this is harassment or not, I want to share it with you.” And then I say, “I’m happy to hear, but understand I will take action and investigate if this does end up being harassment.”

JoDee  10:58

I think there’s so many different scenarios, too, of when harassment can occur. I mean, obviously, it can occur in any situation, but specifically at times when we’re recruiting or interviewing new candidates, when we’re considering people for promotion, when we’re thinking about compensation adjustments or raises, transfers to new departments or new locations, training, or just in our day-to-day environment, there…lots of opportunity for us to not make good choices, or to think ahead about making the right choice and…and being careful with what we’re saying and areas that we’re talking about.

Susan  11:53

You know, you’re absolutely right. And I think one area people sometimes forget is customers. Maybe you are in a business where your employees actively engage with customers or vendors, people outside of the organization. If any of those customers or vendors harass our employee, perhaps they make unwanted sexual advances or perhaps they belittle the person because of their appearance, whatever it is, maybe they see one of your staff members who’s pregnant, and they…they make, you know, lewd remarks about it. You as the employer have a responsibility that when put on notice that…either by the employee or perhaps other of your employees witness it or see it or hear it, you are obligated to take action. You cannot allow your…your staff ever in the course of their business to be harassed.

JoDee  12:42

Absolutely. And Susan, what should an employee do if they are experiencing harassment or observing harassment?

Susan  12:52

If it’s an employee and not a supervisor, I would recommend that the individual perhaps talk to the…their coworker, their colleague to see is this an unwanted advance, or is this making them uncomfortable. It could be that it’s not. It could be that the coworker is engaging in some type of reciprocal relationship or whatever, it may not be what it appears to be. But if the employee doesn’t feel comfortable doing that, or perhaps the employee is uncomfortable about the subject matter or about the actions or whatever it is, I encourage them to go to their HR person if they have an HR person in the company, sit down and share just what I mentioned before. Sit down and say I’ve got something I’d like to share with you, let the HR person who’s trained in this really figure out is an investigation warranted and run with it. If there is no HR person, I think the individual ought to go to their manager, their supervisor, or the head of the company.

JoDee  13:47

I agree. And as always, I think anytime…the more specific you can be about the facts, what happened, that it be documented by you or the HR representative or the supervisor, because it’s easy to…to say yourself sometimes or to have a supervisor or even HR representative maybe say, “Oh, I’m sure it was a one time thing. I’m sure you…I’m sure they didn’t mean it. I’m sure they were just kidding around,” and having a…a trail of events, of what is happening and what’s going on and what was said can really go a long way to help build your case and to support the facts around the situation.

Susan  14:36

Maybe we should talk about if you are the employer, how would you investigate a harassment allegation?

JoDee  14:42

Yeah, well, things that I have done, either as a consultant or in our own organization, is to…sometimes it’s best to have that outside party handle the situation. Now, the outside party could be the HR person. Right? That’s not engaged in the day-to-day. Or sometimes it’s us, as HR consultants, or an organization can bring someone in from the outside, or even an attorney. Someone who could be totally impartial to the situation, talk to them, talk to the complainant, understand the facts, walk through the situation, and determine if a further investigation is…is warranted.

Susan  15:30

I really do like the idea of trying to bring in someone who, should this ever go to court, and I know you’re thinking, you know, very far out, but if, let’s say, this particular allegation ends up in some serious litigation, I want the person who’s going to investigate it to be somebody that the court and the jury would say that was really an objective person. If the HR person is really viewed as being objective in your company, they’re not close enough to know the individuals personally or to be friends with them or anything like that, then I think that that works. But in all other cases, and I’d say smaller to medium sized companies, you really do benefit by thinking about bringing in an HR consultant, or as you say, maybe your labor law attorney on the outside would want to come in and do it. And I think you’re absolutely right, too, that they really have to figure out, once you hear the allegation or hear the complaint, is this really worthy of an investigation. Not all allegations need to be investigated, but you absolutely do, as you say, have a paper trail as to why you didn’t investigate it. You know, maybe it’s because the person feels like they’re being harassed because they’re having to take the later lunch every day and they really feel that’s unfair, and you sit down and you realize when you talk to the manager, and you figure out the reason this person has a late lunch is because it’s on a last in first out basis and she’s the last one arrives every day, so that’s the process. I’d have a hard time saying that she’s been harassed. I think that’s a policy that I probably wouldn’t feel like I needed to go and investigate.

JoDee  16:59

Right, right.

Susan  17:00

Can you think of any times, JoDee, maybe in your past, that you’ve had people say to you, you know, “I feel like I’m being harassed,” and you’ve looked into it, and you realize, okay, that’s not really harassment, I think you’re using that term a little too loosely?

JoDee  17:12

I’m trying to think of a specific situation, but I know, I feel like many times I’ve had it where someone comes to me saying, “It’s not fair. It’s not fair what’s happening.” And then upon further investigation, there was a clear…a clear rule, a clear policy, a clear situation on why that particular situation was happening, but maybe it wasn’t ever communicated. Just like in your example, Susan, maybe nobody ever told the person why they were getting the late lunch assignment. Right? And that just seemed unfair to them. So there could be numerous reasons as to why.

Susan  18:00

Whenever you say, “That’s just not fair,” I think you’ve been talking to my kids recently.

JoDee  18:06

No, I’ve been talking to my kids.

Susan  18:08

I always said, “No one said life is fair.” So…

JoDee  18:11

I think one thing that’s really important to do right at the beginning of the investigation, or even if it doesn’t get to an investigation, to make it clear to all parties to ensure that no retaliation will be taking place so that the person reporting it understands that we’re going to have conversations around this, that we want…because we want to encourage people to bring situations to our attention. So even, again, in your situation, Susan, to make the person feel comfortable in coming to you and asking about the late lunches because did they feel, you know, it was because of their color, because of their race because of their origin, what they might have…have made some connections that weren’t really there, but you want them to feel comfortable in having those conversations with others. And then certainly speaking to their supervisors, their manager, the owner, whoever, to ensure that they do not retaliate against the employee.

Susan  19:24

Absolutely. So if you are an HR professional, or you’re the person inside the organization that has been deemed as the person who is going to be brought in to listen to the allegation and really do the investigation, I think that one of the things that is often forgot, but it’s important, is for that investigator to determine who is it in the line of business, who’s the most senior level person who oversees the area where the person allegedly was harassed, that you need to engage from the get go, because the investigator themself rarely is going to be the person who is going to determine what the outcome is. Like, are we going to have to fire somebody? Are we going to have to retrain somebody? Are we going to have to remove somebody from that particular worksite? What is it we’re going to do? So I think it’s really important from the get go for the investigator to have that relationship established with the most senior level business leader, who…we talk about no retaliation, you know, you are held responsible in your work group to make sure that nothing can happen and you are the person who I, as the investigator, am gonna come back to and give you my findings, and I’ll help you figure out what is the right course of action if there is harassment occurring here.

JoDee  20:39

And you mentioned removing the person from the environment. That can be a really tricky situation for especially smaller organizations, or maybe highly skilled people who work in a particular department that just moving them down to the next office building doesn’t always work. Right? Or it doesn’t always make sense. And I know personally, I’ve been one where a company has called me to see if I can help them investigate an issue, and I’ve said, “Yes, but I’m not able to come out until next week.” Well, what do you do in the meantime with those people? Right? The person who made the claim or the person who is possibly committing the act, what…who do you remove when you’re not really sure of the full story?

Susan  21:35

And I would tell you, I would be very, very careful about removing the person who raised the allegation.

JoDee  21:41

Right.

Susan  21:41

Because that could look like retaliation. Just moving them to a different floor, isolating them, anything that they could later say, I raised the allegation and next thing I knew they made me go work in the other department, or they…whatever. So if you have to, and sometimes you do, you’re so right, you have to take immediate action so the two people, based on the allegation, don’t have to see each other or interact with each other until your investigation has been concluded. I would recommend talking to the individual who’s raised the claim and asking them, “What would make you most comfortable while we take time to investigate this?”. If the individual says, “I want to stay home,” based on the seriousness of the allegation, think about it. That might be the easiest and safest thing for you, to pay them stay home. Now, it may be that they just…they don’t want you to do anything. They want to just keep working and make…they want to be assured that the individual, you know, they don’t have to do anything more difficult than usual with that individual. So I’d ask, “What makes you comfortable?”

JoDee  22:39

Right. Right. Then I think the investigator needs to gather the facts, right? Typically, that’s done by interviews. You can interview the person, interview the subject, and then the person who may be committing the act, any witnesses that might be involved, of course, if there were any videotapes that might be available for whatever reason, anyone who might know any facts about the situation. And again, tricky still, right, Susan? Because you don’t want to blow something out of proportion. You don’t want to be making assumptions of what might be going on or creating…creating another complaint. Right? About raising awareness about someone else.

Susan  23:34

You know, I think you’re right. And I think it’s important when you, the investigator, sits down with the person who has complained, to get as many of the facts as you can, the what, the where, the why, the specifics. I’ve had people say to me, “Well, I feel like he’s doing such and such,” and I’m like, “Okay, what behaviors did you see on what date?” And you really have to drive, because you’re trying to verify, validate that this harassment has occurred, so you want to walk away with specifics when you’re talking to that complainant. You also want to know who witnessed it, who else might have been present on Thursday afternoon when she said this to you. Do your very best, because when you’re talking to that complainant, the more opportunities you have to get data that you can go and verify, the stronger your investigation will be. I will…

JoDee  24:25

Good advice.

Susan  24:25

I would also mention you should think about the order. I think talking to the complainant first, obviously, makes sense, because they’re the one who was raising the claim. But then I would go and talk to – in the interviewing process – to all of that person’s witnesses, everyone that they named who might have knowledge of this or witnessed it happening. And sometimes, when you’re talking to those witnesses, they’ll mention more witnesses. They’ll say, “Well, I saw Susan do this such and such a date, but I know Becky was there, too.” And maybe in your notes the complainant didn’t realize Becky was there. I would want to make…thoroughly research it and talk to all of the complainants witnesses and their witnesses before I would sit down with the accused. I would then sit down with the accused, and I would then have, obviously, a lot of things to ask him or her about. I would also ask the accused, were there any witnesses that would have heard this happen or seen this happen, and then I would go out and talk to all the…the accused witnesses. Sometimes that means I have to go back and talk to the person who raised the allegations, you never know. But I think that’s a very solid path of interviewing to ensure that you have done your due diligence. So, JoDee, let’s talk about when you’re the investigator, and you’re interviewing witnesses, how can we approach that witness without telling them specifics like “Did you see Mary touch Joe?” What…how do you recommend you start out so you don’t lead the witness?

JoDee  25:51

Yeah, I try and start out as general as possible, at least….Maybe starting with the question, “Is there anything in your workspace, anything in your day-to-day activities, anything in your environment that makes you feel uncomfortable?”

Susan  26:10

I love that.

JoDee  26:11

Maybe to you directly or indirectly.

Susan  26:15

Sure. And then sometimes I’ve had, when I’ve started out that way, really with a kind of a wide net, the person says, “I bet you’re here to talk to me about Mary touching Jane,” or something. And it’s like, “Oh, well, you know, would you like to….Well, tell me more,” You know, I don’t want to confirm or deny. And then other times, they’re like, “Nope, I’m perfectly happy. Just…”

JoDee  26:34

Yeah.

Susan  26:34

“…perfectly happy,” and then you do have to take it down another layer. “Okay. Is there anything that you may have seen the supervisor do that you weren’t sure was a behavior that was appropriate in the workplace?” I mean, you have to decide, you know, how do you narrow it down? But it is fun to see how they respond to that first initial question.

JoDee  26:56

Right, right. Because again, we ta…we’ve talked about how the subject person might be fearing retaliation or uncomfortable in bringing the claim in the first place, and the witnesses can feel the same way. Right? They might not even have been the one that brought it forward, but they still may have that fear of retaliation or of tattletaling or…

Susan  27:23

Yes.

JoDee  27:24

…of not understanding the situation fully….

Susan  27:27

…or they don’t want to get involved.

JoDee  27:29

Right.

Susan  27:29

That’s another thing. Like, “Hey, I come in here, I do my job, I pay no attention to anything happening around me.”

JoDee  27:34

Right.

Susan  27:35

I’ve had that. I’ve also had witnesses sometimes say, “Listen, I know that Mary’s complaining about Jack. I know. But you know what, Mary deserves it, because Mary…,” you know, it’s like, oh, my gosh, they’re…they’re taking sides in there. So my goal really is just to ferret out as many factual things as I can and ask if there’s any other witnesses who may have seen or heard what it is that the witness is telling me so that I…my goal is to keep going back to what the complainant laid out for me as the problem and I look to see if I can get corroboration.

JoDee  28:07

Right. Right. That’s the best of all. And not to be naive about it, but I do feel like sometimes the accused doesn’t even realize what they’re doing. It might be habits that they’ve created over time. Again, I’m not…I’m not suggesting they’re appropriate or they should be doing it, but they might really not realize the severity if they’ve been telling jokes that they thought were funny, if they were stereotyping people, if they were making comments. I’ve…I’ve done several investigations where I truly believe the accused had inappropriate behavior that should have been punished for, but there was no real harm in intention in…in what they were doing. They just didn’t really understand the concept. And that goes…I don’t think we mentioned the importance from the very beginning of organizations creating policies around harassment and having training for employees to ensure that they know and understand what is harassment, what can create these issues, what’s appropriate and what’s not appropriate. And I think, Susan, we see so much in pop culture, on TV, on…on social media of inappropriateness that…even, you know specific office setting scenes on TV or in movies that we laugh about and go to work the next day and have to remind ourselves that those are inappropriate.

Susan  29:59

Sure.

JoDee  30:00

That that’s not proper respect for our employees.

Susan  30:04

And I have interviewed many witnesses who’ve said, “You know what, that’s the way Joe is. None of us takes it seriously,” or, “Joe does have a tendency to joke about such and such, but you know what, we know that’s just Joe.”

JoDee  30:15

Right.

Susan  30:16

Unfortunately, in the world of work…

JoDee  30:18

Right.

Susan  30:19

…that being “just Joe” is sometimes inappropriate and…

JoDee  30:22

Right.

Susan  30:22

…if a company does a good job of talking about the harassment-free workplace that we have, and they’re constantly – at least annually – reminding employees what we do tolerate and we don’t, Joe will learn to not be bringing those kind of jokes or that type of talk or those type of behaviors into the workplace.

JoDee  30:38

Right. I think it makes it easier for employees, too, to call out a Joe or to remind Joe of the inappropriateness when they’ve been trained. To say, remember, Joe, that training we had that…last month, or the webinar we watched, or…

Susan  30:57

Or the podcast we listened to!

JoDee  30:59

Yes! Perfect example. Where they talked about doing this, and it’s inappropriate. So all those things can…can help us in an organization to have those…those strong policies and training, enforcing around the policy.

Susan  31:18

So after the interviews, and I…you had mentioned, there’s a number of other things that you might want to, as the investigator, really look at. If there was videotape of the lunchroom on a particular day where a particular incident may have happened, go back and look at the videos. If there are other precedents in the company. Maybe there’s a situation where someone raises an allegation and you realize that this is not the first time this allegation’s come up. You know, what…what did we do the first time this came up? Is there a precedent we want to make sure that we follow up? Do we have a policy about this particular behavior or issue? I’m hoping, after…after our encouragement of developing policies, but maybe there isn’t a policy yet. And maybe this is the red flag that we need to have a policy about X, Y, and Z. But take a look at that. What other resources? Can you think of any other resources that during the investigation, you might want to take a look at that we’ve not mentioned?

JoDee  32:12

Well, it could even just be something in writing. A note that was left, a performance review, maybe, where someone commented inappropriately on that, or any…any kind of an email, maybe, that was written. Anything in writing, as well, that was inappropriate.

Susan  32:32

I think that makes good sense. So after this exhaustive…and I know it sounds exhaustive, but the fact is, you want to make sure, as the investigator of a harassment allegation, that you do a thorough job that you can stand behind and say, “Here are my findings based on the people… the people I interviewed, based on the documents I went back to, based on…” whatever, and you want to be able to sit down with that key business leader, the most senior level business leader over the group or the person raised the allegation, and sit down with the individual and talk through your findings and recommend, what do you think appropriate action is, and the business leader then needs to say “yes” or “no,” or “yes, but…”, and the two of you need to figure it out. Because it’s important that after the investigation, if there is any finding of harassment, that you document what is it that you do to correct the situation.

JoDee  33:30

I think it’s a good time to to remind that business leader – for them specifically or for other leaders who may report to them – about no retaliation. Right? Regardless of whether an action was deemed warranted to be taken or not, just a good time to remind them that no retaliation regardless. We don’t want to set up a culture where people then are uncomfortable in bringing other complaints forward.

Susan  34:03

Sure.

JoDee  34:04

When they feel them.

Susan  34:05

And so when the business leader and the investigator determine what the course of action is, they also need to build a communication plan around it. Let’s say that the findings are we cannot confirm or deny that this occurred. Maybe it’s just we can’t figure it out, the “he said, she said” in this particular case. Okay, well, then let’s build our communication plan. Meaning, when are we going to get back to the person who raised the allegation and what are we going to say? The person who was accused of committing the harassment, what are we going to say to him or to her and when? And then how are we going to document this? All the time remembering that we don’t want anybody to know anything that’s occurred that didn’t need to know. So I think it’s important to really talk that through and then document when you talk to each individual, that there is a no findings. Is there any choice of words that you like to use with a complainant? Is there any…any particular verbiage that you like, JoDee, that…?

JoDee  35:02

I…I just always would start with thanking them for bringing the issue forward. I always would want people to feel comfortable in…in bringing an issue forward and talking and sharing about it. Reminding one more time, again, about no retaliation should be happening, but also making sure they understand what happened in the investigation and why we came to the conclusion that we did, so that they’re fully understanding of how we came to the conclusion.

Susan  35:41

Without giving any details. Right? Of what people said or didn’t say. It’s that we could not verify. We’ve talked to the witnesses you…you’ve named, we’ve talked to the accused, and we were not able to corroborate your story. Please know that we’re not making any judgment. We do encourage you, if you have any other concerns moving forward, come to us, and we will thoroughly investigate, as you know. If there is a finding, and we actually are going to take some action with the person who’s been accused, any different….How would you structure that conversation with the individual?

JoDee  36:12

I…once again, I would remind them, you know, of thanking them for bringing it forward and telling them that the situation is being handled and dealt with. You might not be able to share what is happening, either. Obviously, if you choose to terminate the accused, they might realize that they’re no longer in the an…or…organization. But it might be a situation where you’re not able to share all of the details around the action, either.

Susan  36:44

Absolutely. You don’t want to share those details. You know, it’s funny, I’ll have business leaders say to me, “Susan, I want a public hanging. You know what, we figured out that the person did it and I want to make sure everybody knows that if you ever do anything like that, you will be fired on the spot.” And I have to be, “This is not the time for us to do a public hanging.” We certainly…we’re going to take the action, and then after some time has passed, then I’m really good about let’s sanitize this situation and let’s use as a learning, training example in our next harassment-free workplace training. But let’s not do anything that could later come back to us in litigation and things from a privacy standpoint for the individual who’s no longer going to work here. But it…it comes up. Have you had that happen to you, too, JoDee?

JoDee  37:29

Well, I think it’s very difficult for people to understand that. Right? That they may not be able to hear all the facts and circumstances and actions that are taking. Again, going back, because we hear so much on the news and we hear about the settlements and we know how much they settled for and we think or demand that we should be able to know what happened.

Susan  37:56

Sure.

JoDee  37:56

And that can be a difficult situation as well, too.

Susan  38:00

That’s right. And I always say we’re going to err on the side of privacy and on a need to know basis is the way we operate.

JoDee  38:07

Susan, I think a tricky part…so obviously, we’re going back to the accused and we’re going back to the person who filed the complaint, but what about the witnesses who are dying to know what happened here? Right?

Susan  38:23

Great question. I actually, at the end of every interview that I do with the witness, I explain to them, I thank them for coming forward, I remind them of no retaliation for their having shared the information they have with me, but I tell them that I will not be able to tell them the outcome of this. We appreciate their input, they’ve served as a witness, but they are not a party to what…what the outcome here is. And they usually are dying to know and, you know, the depending on the size of the company, the size of the department, when an investigation is going on, there’s a lot of chatter. People tend to know more than we want them to know, but they aren’t going to hear it from HR or our senior business leader.

JoDee  38:58

Right. Right. And that’s a part…although we mentioned earlier about having a policy, I think it can be an important part of the policy to include the reporting process in there, and even the investigation process, what might happen, so that people can be aware and know up front, this is this is the way it should be reported, this is the way…

Susan  39:22

Good idea.

JoDee  39:23

…it will be handled if a situation occurs. So that that’s clear to people up front.

Susan  39:29

I like that. Well, then, the way I’d wrap up the investigation, after we told the complainant and the accused as to what the course of action is, I would make sure I did a summary. As the investigator, I think it’s important that we have a summary of what occurred, and I like to keep it really simple. You know, what was the allegation, who made it, when, who were the witnesses I spoke to, what were the findings that I had. I would not put the recommendation that I gave to management in there. I would always do that verbally, because my fear is that management may not take the exact recommendation that I had, and then that would be a horrible risk for the company. Instead, I use it as the investigator’s consulting with a top leader of that unit and together, you come up with the actions to take. I think that’s a very smart move for the company and for HR.

JoDee  40:16

Great advice. Great advice. You know, Susan, I know we heard a while back a speaker at the HR Indiana Conference. Her name was Anucha Browne, and she had been awarded one of the largest harassment settlement claims ever in U.S. history. I forget what year it was, but she was awarded $12 million for a harassment suit against the New York Knicks. And what was so interesting in her story was that she was being personally harassed, bullied, and sexually harassed for…I think it was maybe up to two years, and didn’t do anything about it. She was an executive at the company with a long history of strong leadership and success, but she only reported the harassment when she found out it was also happening to other people on her team.

Susan  41:22

I heard the same speaker and she was amazing. And it was true, she…to herself, she sort of thought, okay, this is the price I have to pay to be at this leadership table, but when she realized her staff was experiencing it, it mobilized her. And I wonder how often that isn’t true for other people that are victims of harassment. They could take it, but when they see it happen to other people, then they take action.

JoDee  41:43

Right, right. And yet, of course, as you know, if we took action at the beginning, it might not happen to other people.

Susan  41:53

That’s so true.

JoDee  41:53

Right?

Susan  41:54

Great….

JoDee  41:54

So we’re…

Susan  41:54

…lesson.

JoDee  41:55

We’re helping people by reporting it in the beginning, even if it’s an awkward situation. I know Anucha said in her talk that she never, at any point through the trial, which, of course, dragged on for many, many months and was a horrible situation for her family and her friends, she never thought she would win, but she wanted the organization to face the charges. She wanted them to have to go on public record and deny what she said.

Susan  42:32

That she knew to be true.

JoDee  42:33

Right, right. And hopefully, there were some lessons learned by some people, not just in that organization, but in people listening to the story and people understanding what happened and seeing that $12 million awarded to her. So…

Susan  42:51

That’s great. You know, it makes me think about the Uber situation. Uber technologies, the ride sharing mobile app, that in…earlier this year, a woman named Susan Fowler wrote a blog, and it was entitled, “Reflecting on One Very, Very Strange Year at Uber.” It was published in February of 2017. She talked about, as a software engineer, how different the world was for women in that culture, that men tended to get better treatment than women. One example I remember her giving was, I think, that they ordered jackets for all the men, but they said they didn’t have sizes for women, so the women weren’t…didn’t get any of the jackets. It just went on and on with lots of things. Anyway, her blog really started a firestorm of them working at Uber on changing their culture. They brought in, I think, Eric Holder, his firm – consulting firm – came in to do the investigation and really figure out what are they doing to differently with women than they are with men. So it’s just…sometimes it just takes one spark to start a real fire. And you, as employers out there, want to really think about your culture. And are you treating people the way they should be treated or is there some either subtle or very non-subtle harassment going on?

JoDee  44:10

Yeah, we talked briefly about the…the dollar, the cost implication and the turnover and uncomfortableness your employees can face, but to think of the Uber situation and the social media and the public press, and could be the loss of business. Fox News certainly took a huge, significant loss in their sponsors who withdrew their sponsorships to the news. So, I mean, this type of issue could take a whole company down.

Susan  44:48

Yes.

JoDee  44:48

Really, with the public information and bad advertising around it.

Susan  44:55

It really affects your reputation.

JoDee  44:58

Right. Susan, one area we haven’t talked about at all is what about age harassment? Have you had some situations or examples that you’ve seen or maybe just think could happen where someone feels harassed about their age?

Susan  45:17

I have to say, it’s pretty common, and I think it’s because people are doing it not with bad intention. They’re, like, recognizing that somebody is…is turning 60, and they really like the individual, and so they want to talk about, you know, when are you going to retire. They want to celebrate with, sometimes, with black balloons. They want to bring in funny jokes, funny presents like Depends or rocking chairs or things like that for, you know, people as they get older. And as you know, the Age Discrimination Employment Act protects individuals that are age 40 and over, which in my mind doesn’t feel old at all. But you really do need to, if you’re a supervisor or a manager, you really need to watch that, if people are kidding individuals about, you know, someone being old. As an older employee myself, I, you know, I laugh too, and it can be funny, but it isn’t truly for everyone and it can be offensive, and so I encourage people not to talk about someone’s age. It’s just…there’s really no good to come of it. How about you, JoDee? Have you seen it happen?

JoDee  46:22

Well, I think it just makes us sound like such a party pooper.

Susan  46:26

I know. The last party I’m getting invited to.

JoDee  46:31

We can’t even celebrate. And I think our message is to be careful and to be sensitive. I’ll tell you, I’ve worked with a couple of different people who were retiring and I didn’t understand how sensitive they were to the retirement, even though both of them made the decision to retire on their on their own. It was not a forced retirement. But we joked and laughed about it, and it wasn’t until later that I realized that it…truly, they were nervous about retirement, they had a lot of pride and some ego built up about their position and their role, and they were they were hesitant about it, again, even though they even made this decided the situation themselves. But sometimes that’s not always the case. Right? There may be a forced retirement issue. So I…it really made me realize how I don’t always know all the facts. Right? You don’t know what people are thinking, you don’t know what people’s home life might be, and so, even though it might be all in fun with good intentions, it’s not the actions that were speaking to them.

Susan  47:53

That’s right. You know, people would not kid you about your race, I mean, in general, and people will not kid you about…well, they might kid you about your national origin, and if they’re doing that, I’d stop that too. But age is one that comes up a lot, and I think it’s really important that, as you are driving for a JoyPowered® workplace, that you don’t let people focus on teasing one another for…about anything, really, and certainly nothing like age.

JoDee  48:18

Yeah. You know, interestingly, I even had a situation several years ago where we put birthdays on our intranet, which 90% of people thought that was fun and enjoyable and good information to know, but I worked with a lady who was very adamant about not wanting her birthday. Now, it didn’t have a year, so we didn’t necessarily know how old she was, but she did not want people to know her birthday, and I…she truly felt harassment around that issue, for people to recognize her birthday, so I’ve always been a little sensitive about that, even about recognizing that.

Susan  49:06

JoDee, mine’s May 21. Send a gift.

JoDee  49:10

I’m April 5, and I’m good with that, too.

Susan  49:12

Okay, all right, but not the year. I won’t tell you the year.

JoDee  49:17

Well, Susan, we have a caller today, and to remind our JoyPowered® listeners, in addition to being able to call us on the JoyPowered® podcast hotline to leave a voicemail, you can also send us questions and topics via JoyPowered® on Facebook or Twitter. Here’s a question called in to our hotline, and that number again is 317-688-1613 – I’ll repeat that – 317-688-1613, and I picked a caller today that…where the subject was related to harassment. Our caller wishes to remain anonymous, but he is male, and I’ll call him Kyle. Kyle works in a male-dominated environment. Most of his coworkers have been with the organization for over 10 years, and he is the only recent hire. He’s much younger and less experienced than everyone else. The conversations, jokes, and emails are consistently sexual in nature, and Kyle is very uncomfortable. He doesn’t want to seem wimpy, and he was razzed a few times when he tried to stop a few conversations and didn’t open up one of the emails. Other than this, this role is a great opportunity for him; the pay is excellent and the company as a whole has a great reputation. But he wants our thoughts, Susan, on what should he do and how should he handle this uncomfortable environment?

Susan  50:55

Kyle, you’re my hero. I’m so proud of you getting into the workplace and…and realizing that there’s stuff there that probably isn’t appropriate to have in the workplace. I first thought, JoDee, when you were telling me about it, I thought that might be kind of an age discrimination thing going on, with him being young and everybody else there being old, but it’s not. What it sounds like is that he’s uncomfortable with the sexually charged environment. You know, my suggestion is I think Kyle should sit down with the HR person in that firm, and if there’s not an HR person, then with his manager, and just talk it through and share with them why he’s uncomfortable by it and suggest that perhaps this not a good use of the company’s time or emails or anything like that. JoDee, what do you think?

JoDee  51:40

Yeah, I think that as uncomfortable as that might be, this…it sounds like he does have a great opportunity there, and it’s not going to happen if he doesn’t talk it out with someone and report it. Even if they don’t realize how uncomfortable he is, it still is inappropriate behavior in the workspace, and it should stop.

Susan  52:04

And if they don’t have a policy on it yet, they certainly should.

JoDee  52:07

Right. Having…actually, Kyle looking up to ensure that there is a policy could certainly help his case, too.

Susan  52:15

True.

JoDee  52:15

That if ownership has an employee manual that specifically describes inappropriate behavior, that he can point to that. 

Susan  52:26

Good. Good luck, Kyle.

JoDee  52:29

Yes, thanks for calling in, Kyle.  In the news, there was a new I-9 form released back in September of 2017, and I can’t stress enough how important it is for companies to stay on top of I-9 compliance. Increased enforcement has been happening and the Department of Homeland Security says it’s going to be expected even more. They can examine your organization’s records at will, so it is good practice to undergo or to conduct your own I-9 compliance audits at least a couple of times a year. A construction company was recently penalized $228,000 for multiple compliance violation, so it’s a serious issue, and really, Susan, it’s such a simple process.

Susan  53:26

You know, it’s funny you would say that. I talked to a client about doing an I-9 audit, and I really wanted to school myself on it, so I found…there are so many free resources out there. If you go to the Department of Homeland Security’s website, they have free webinars on demand by U.S. Citizenship and Immigration Services that you can really learn pretty quickly how to do it, or if you just don’t have the time, there’s plenty of HR consulting firms out there who can come in and do it for you.

JoDee  53:53

Yeah. If you have no idea what we’re talking about with regards to I-9, you can just simply Google “I-9.” But it’s simply a form that new employees are required to complete within their first three days of employment, and they need to show that they are legally authorized to work in the United States by having documents available and presented to the organization. Things like birth certificates, passports, driver’s license, and there’s a…there’s a whole list of different kinds of documentation you can have. But my best advice is tell those new employees up front, before they ever arrive on the first day, that they need to bring that documentation with them, because if they need to go to their safety deposit box or go to the Social Security Administration to get a form printed, sometimes that can take more than three days.

Susan  54:54

And I’ll tell you that government does not play, so you should not play either.

JoDee  54:57

Right. So please tune in next time, and thank you for listening today. If you have missed any of our podcasts, you can catch all of our episodes for free at iTunes, Google Play or Podbean just by searching on the word “JoyPowered.” If you have questions on any HR topic, you can call us, again, 317-688-1613. Or just to give feedback on our podcast, you can do either via our JoyPowered® Facebook account or on Twitter @JoyPowered. We welcome listeners’ questions and comments.

Susan  55:36

And we hope you all stay harassment-free. Thanks so much.

JoDee  55:40

Thank you.

Susan  55:40

Bye bye.  If you would like SHRM recertification credit for listening to this podcast, please visit getjoypowered.com/shrm. You’ll find an evaluation of the podcast, and once you complete the evaluation, you will see the SHRM recertification credit code and a link to a proof of participation certificate. Again, that’s getjoypowered.com/shrm. Thank you for listening and thanks for your dedication to the HR profession.

Emily Miller
Emily Miller
Emily works behind the scenes at JoyPowered, helping to edit and publish the books, producing the podcast, and running the website and social media.

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