Published on March 19th, 2019 by Alan L. Sklover
“Gender equality is a human fight, not a female fight.”
– Freida Pinto
ACTUAL CASE HISTORY: Gerald, a sales team supervisor, regularly made jokes about sex in team meetings, was known to often touch female team members “by accident,” and held private meetings with female sales team members in his office, with the door closed.
Two female team members were rumored to have complained to HR of Gerald’s habits, their discomfort with it, and then simply seemed to “disappear,” that is, they did not return to work on Monday morning, without any of the sales team members hearing from them that either had a new job elsewhere.
Tom, a male sales team member, was called into HR, where he was met by an outside attorney working for the company, who insisted on interviewing him. The interview, which lasted almost two hours, seemed to focus on what Tom observed, and – quite surprisingly to Tom – why he did not report his observations to HR, as is now required by new company policies, about which he was not aware.
Barbara, Gerald’s supervisor, was also interviewed by an outside attorney for the company, and the questions asked to her focused – to her surprise – on what she had done to train her teams on anti-harassment policies and practices, and to regularly assess the quality of the work environment of her reports, as is now required by new company policies about which she was not aware.
Cary, who headed up Human Resources for the Sales Division, was also interviewed by the investigator, whose many questions focused – to Cary’s surprise – on what training and ongoing assessment he had initiated of the employee morale of Sales Division employees, as is now required by new company policies of which he was not aware.
New thinking, new limits, new policies, new expectations, new accountabilities, new risks, new consequences. There are a lot of new things to learn and keep in mind.
LESSONS TO LEARN: The #MeToo Movement has been something of an earthquake in the workplace, and it continues to have a wide variety of “aftershocks.” These “aftershocks” are not only what you see, hear or read about. It’s something less visible, more visceral. It’s about what is no longer acceptable, no longer tolerated, no longer joked about, no longer without substantial consequence. It’s not about a law; it’s more about what is simply not tolerated. It seems to be one of those epic steps forward in societal norms that, hopefully, will never be reversed.
The #MeToo Movement has clarified that freedom from abuse at work is something human right, a right to be free from a kind of deep humiliation, physical intimidation, outright fear and human exploitation. This web post covers just one of its many facets: how it has grown from a laugh-laden phenomenon to one that can not only ruin your career, but even put you in jail. It is serious, and needs to be taken seriously.
As a general matter, employers have not before been held accountable for harassment at the workplace of which they were not aware. So, if you did not complain, you had no effective right, and your abuser had no effective responsibility. That seems to be changing, and employers are increasingly concerned about the cost of being caught unaware. . . Yes, it’s a dollar and cents issue, too. Employers are no longer ignoring #MeToo issues, but are now seeking to prevent them, with their own interests in mind.
Employers, managers and colleagues are all increasingly being held responsible for not doing something to stand up, and face down, those who harass at work. According to a recent Bloomberg Law report, law firms are being hired to engage in a record number of investigations into employee harassment complaints. There has also been a sharp increase in the number of employers who are conducting preventive training to prevent workplace harassment in the first instance, and to come up with better ways of handling it if and when it does rear its head.
The lesson is clear: things are changing, and they require thoughtful consideration of how you need to adapt with those changes, or be confronted with potentially career-ending “news.” There is no simple, universal “rulebook” but an evolving one that gives every employee good reason to keep her or his mind wide open for what and how the new workplace requires of employees.
If you are not convinced, just look at what has happened to so many CEO’s, so many famous and wealthy men like Mr. Weinstein, Mr. Cosby, Mr. Lauer, Mr. O’Reilly, and so many others who were blind, oblivious or overconfident about their ability to avoid the new accountability that is @MeToo.
WHAT YOU CAN DO: Having worked on workplace harassment issues for many years, the following 10 points are among those that would be best kept in mind. They are steps that are among those I would suggest all employees consider doing to be, and to be perceived as, part of the solution, and not be, or be wrongly perceived to be, part of the problem:
1. Imagine how you would feel if your loved one was being abused or violated, and those who knew of it simply ignored it. Whether by a manager at work, a clergyperson where you pray, or a teacher at school, sexual harassment, assault or predation is simply wrong, indeed, it is horrific. This abuse, itself, is bad enough, but it being known and tolerated by others around you makes it all the more traumatic. Just as abused spouses shudder at the idea of leaving home, while you might stop going to a certain place of worship, or a certain school, few employees have the ability to walk away from their only source of income, even temporarily.
This “feeling,” its inner outrage, and its destructive effect on the human soul are what underlies the #MeToo Movement, and is the root cause of its present and future manifestations.
2. Is sexual harassment at work more prevalent today, or is it just more frequently reported and openly discussed? That’s hard to say, and some might say with great truth that it really doesn’t matter. But something that does matter, and that can’t be denied, is that the #MeToo Movement is upon us, is changing our expectations and tolerance of behaviors, and we all need to adapt to it, or face workplace and career peril, as it slowly but surely changes our societal ways.
3. Due in good part to social media and the internet, the near-inevitable consequences of just being accused of harassment at work can be career-destroying, if not life-devastating. There have been numerous cases in the news about very famous and successful people – overwhelmingly but not exclusively men – who have fallen from grace, lost their position, power and wealth, some even their own freedom, and have been forever shamed by being “out-ed” as sexual harassers, abusers and/or predators.
It’s no longer simply a matter of what is “whispered behind closed doors,” and thus more likely tolerated. No, today being accused of sexual assault, abuse and/or harassment is so, so much more risky, and in so much more of an immediate way. Just ask former movie mogul Harvey Weinstein, legendary TV personality Charlie Rose, or formerly mega-famous and universally beloved comedian and actor Bill Cosby, who is spending his “golden years” locked up inside a state prison. And, too, former media star Bill O’Reilly, who was famous and is now commonly deemed downright infamous. Former President Bill Clinton was almost impeached for it.
The list goes on and on, and will continue to until the new “#MeToo rules” are in place, people are aware of them, and – perhaps most importantly – understand the cold, hard truth of their own potential accountability for transgressing them.
4. Since you need to know “the new rules,” consider requesting that HR provide your team, unit or division an anti-harassment presentation, seminar or workshop. When new ways of acting and interacting at work are needed, as they are now, you really can’t rely on your old ways of thinking to guide you. While it is so very hard to change your habits, it is much, much difficult to change your own thinking.
As a direct result of the #MeToo Movement, there are many new rules, many new policies, and many new expectations, and, too, some very real and serious consequences for not adhering to them. For the best understanding of your workplace rights and responsibilities, as well as your own potential pitfalls and perils, you are best advised to start with a request of your employer’s HR department to present a #MeToo presentation, seminar or workshop, or perhaps bring in an “expert” in the current law, policies, and precautions that are in order.
If you are a Manager, then this is a truly urgent matter to attend to, as your failure to do so might later be held against you.
For your own guidance, at a very minimum, ask HR for all of the current policies related to harassment and reporting of harassment; you need to know your employer’s rules, including its newest policies on the subject, in order to follow them.
5. Understand that harassment happens to – and by – all ages, genders and all orientations. Don’t presume that harassment at work is exclusively a male-victimizing-female phenomenon. Or that it is limited to the heterosexual orientation. Every human being is, at least to some degree, a sexual being, and impropriety and illegality are not limited to any one predisposition, managerial role, age, race or background. It can arise in any person, or against any person, universally.
We offer a Model Complaint of Discrimination, Harassment or Hostility you can adapt to your own facts, events and circumstances. “What to Say and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly!
6. This is crucial: Your innocent grimace may be misperceived as an incriminating grin. Over the past year, two male clients have reported that they “grimaced” in upset and concern when they were in the presence of other males engaging in sexual taunting of female colleagues. Both, though, were misperceived by the female victims not as grimacing in disgust but rather as grinning in approval, not as disapproving of the misconduct, but, instead, as participating in it.
Nuanced responses to harassing behavior may not protect against such misperception. Only clarity of words and certainty of deeds in response will do so.
7. The #MeToo Movement has made sexual harassment and abuse a true dollars-and-cents issue for employers. As the saying goes, “Money doesn’t just talk, it screams.” Employers are now more worried than ever before about the financial costs of a growing revulsion regarding workplace sexual harassment and abuse. It is not lost among employers that they must act swiftly and appropriately to such concerns, complaints and claims, or face harsh financial consequences from (a) fleeing advertisers, (b) boycotting consumers, (c) potential job applicants, (d) corporate shareholders, and (e) members of juries.
As a result, disappearing is the sense that, if the alleged harasser is “high enough up” in the company he or she is to be “protected at any cost.” In recent years, we have seen CEO’s, famous celebrities and those whose name or personal brand can bring in many millions of dollars of revenues yearly.
As one example, according to published reports, Bill O’Reilly of Fox News earned $52 million yearly, and was the number one revenue producer for the network. To keep him on the air, Fox News had paid many millions of dollars to many women who he had victimized, many times. But, then, advertisers began to flee his show, and then Fox News showed him the door. So, too, with near legendary CBS CEO Les Moonves, who was not only fired but who was denied his contractually-required severance package of $120 million. That is enough “motivation” to convince many people to exercise greater self control.
By the way, Bill O’Reilly has apparently been unable to resume his former level of employment or his former level of income. So many people who admired him now view him with disdain, if not disgust.
8. If you observe sexual harassment or abuse at work, consider letting the harassed or abused person know you know, and that he or she is “not crazy.” Letting someone know that you know – and disapprove of – how they are being treated goes a long way to ease their sense of isolation and hopelessness. Having a concerned witness is also having a potential way out of their predicament, and a positive human connection in an otherwise very dark and lonely place.
This, too, enables you to give her or him greater ability to choose what to do, when, and how in responding to their situation. It’s a kind of power, and encourages a sense of hope. This can enable you to learn and take into consideration how the abused person wants to address the problem, when, and in what forum.
9. If you fear retaliation for reporting harassment or abuse, consider reporting it anonymously to senior management, or perhaps objecting to it anonymously directly to the abuser. Simply put, people are much more likely to act responsibly if they know that they face imminent accountability. Getting an anonymous letter that “I know what you are doing and I think it must end” can’t but instill some sense of “You may soon get caught if you don’t step now.” And, if HR fails to act, well, they can get caught not doing so, as well.
10. Worried about taking the first step in standing up? Just a reminder of what folksinger Joan Baez said: “Action is the antidote to despair.” It is so true.
In Summary . . .
The #MeToo Movement is changing so many things at work, many of which we cannot see with our eyes. Not just headlines. It is bringing about a new sense of what is not tolerable, even by the “mighty” who cannot now avoid accountability. It is changing our thinking, our attitudes and our ways of interacting, as it should, and that is no small thing.
P.S.: If you would like to speak directly about this or other subjects, Mr. Sklover is available for 30-MINUTE, 60-MINUTE, OR 120-MINUTE TELEPHONE CONSULTATIONS, just [click here.] Evenings and weekends can often be accommodated.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road. For those suffer from or observe sexual harassment, abuse or assault at work, there is a new sensitivity, responsibility and accountability to support you. Standing up to it, and against it, is wise “navigation and negotiation.”
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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