Sunlight and sexual harassment

The late Supreme Court associate justice Louis Brandeis wrote in an article for Harper's Weekly, "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Describing one of the cornerstones of his legal philosophy, Brandeis could never have imagined how social media and the relentless scourge of sexual harassment would make his words ring so true more than 100 years later.

I will admit, I'm approaching this topic with extreme trepidation. With new and seemingly more disturbing allegations of sexual harassment and misconduct by powerful public figures being reported almost daily, and the current cultural and political climate, any discussion on this topic instantly becomes a potential lightning rod. Are there other "safe" topics to write about? Absolutely. But, given the exposure - pardon the pun - sexual harassment has received, it is a topic that needs to be addressed now.

I was catching up with a longtime friend recently, and knowing what I do professionally, she asked, "How did we get to such a terrible place as a society?" The answer is simple: We've always been in this place. What's changed is that the sunlight Brandeis spoke of a century ago is shining on politicians, actors, morning show hosts, and scores of others who believed they were too rich, too famous, too beloved and too important to be held to even the most basic standards of human decency.

More bad news: Sexual harassment is not confined to the halls of Congress and state legislatures, the movie sets of Hollywood, or the TV studios of New York City. It exists, in its many forms and to varying degrees, in most workplaces. I've seen it firsthand. And it's inevitable that the sunlight shining brightly on so many in the public arena today, will begin to shed its light on employers of every size and industry very soon.

Here's some good news, there are lessons to be learned from the high-profile cases. But first some widely-held myths must be dispelled, and hard truths must be accepted.

Myth:Unlawful harassment does not occur in your workplace.

Truth:No workplace is immune to the scourge of unlawful sexual harassment. An ABC News/Washington Post Poll recently reported that 54% of women surveyed had experienced unwanted and inappropriate sexual advances at work. In fiscal year 2016, the Equal Employment Opportunity Commission (EEOC) received 26,934 sexual harassment complaints. For the 10-year period ending with fiscal year 2016, the EEOC received a total of 276,189 complaints of unlawful sexual harassment.

Myth:Sexual harassment is committed by immoral people with malicious intent.

Truth:While some harassers are immoral and have malicious motives, often sexual harassment is a result of the person's ignorance to the fact that their behavior is offensive and inappropriate. "I was just kidding," and "he says some pretty offensive stuff, but he's harmless" are not acceptable responses to a complaint. It's not the harasser's intent that matters, only the effect on the victim.

Myth:If nobody complains, then there must not be any harassment happening.

Truth:Inappropriate behavior isn't defined by whether there is a complaint; it is the behavior itself that is inappropriate. Don't ignore inappropriate behavior, or be reactive and only address an issue when someone complains. As my father was fond of saying, that's like closing the door after the horse has already left the barn. Inappropriate behavior must be addressed before it occurs. Pre-emptive training, and disciplining employees for unacceptable conduct before there is a complaint, will show employees that the company takes seriously its responsibility to maintain a workplace free from harassment. Failing to do so sends the opposite message.

Myths:An employee must be the direct victim of harassment to file a complaint, and harassment can only occur between members of the opposite sex.

Truths:Employees who aren't the direct targets of offensive behavior may still be sexually harassed, and same-sex harassment is real. I once interviewed a woman I'll call Kelly, who filed a complaint of sexual harassment against a female coworker because of comments made while they were on a business trip. According to Kelly, her coworker made sexually explicit comments to other coworkers about "dozens" of men they saw in the airport, at the business meeting, and even walking down the street. Comments included estimates of the size of the men's "packages," and predictions on their sexual abilities. The offending coworker and the other travel companions described the behavior as "girl talk" and were all shocked that anyone would be offended.

Myth:Employers are only responsible for the harassing behaviors of their employees.

Truth:Employers have "vicarious liability" for the actions of their employees, and they may also be held responsible for harassing behaviors of vendors, clients/customers, and other non-employees in the workplace. An example of this would be a customer coming in to pick up an order who makes inappropriate and offensive comments to some of the women. It is the employer's responsibility to provide and maintain a workplace free from harassment, regardless of whether the harassing conduct is from an employee or nonemployee.

Sexual harassment is arguably the number one employment-related issue today, and certainly the most talked about and prevalent in the media. Although the sunlight illuminates accusations that appear to be more disturbing each day, there is an important message and opportunity being presented. Employers can no longer view sexual harassment as a vague concept covered by a policy in the employee handbook, or an issue that can be ignored until it or the complaining employee quietly goes away. If you don't believe me, ask the brave individuals that have come forward recently.

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Frank A. Cania, M.S.Emp.L., AWI-CH, SPHR, SHRM-SCP, is president of driven HR - A USA Payroll Company. Located in Pittsford, NY, driven HR provides human resource consulting services including HR audits, outsourced HR management, employee handbooks, employee training, and a variety of other services. Frank concentrates on wage-and-hour, FMLA, ADA, Title VII, and Form I-9 compliance, as well as workplace investigations. This article is brought to you by the Rochester affiliate of the National HR Association, a local professional HR organization focused on advancing the career development, planning, and leadership skills of HR professionals.

Published: Thu, Dec 07, 2017

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