July, 2018

Moving Forward After #MeToo – Consider Your Policies

Recent changes to New York State law regarding prevention of sexual harassment will require employers to revisit existing policies to comply with newly-mandated provisions, as summarized in our lead story from Takeaways, Spring 2018.  But looking beyond the state law, one key lesson to be derived from the #MeToo movement is that workplace policies prohibiting harassment must also emphasize power disparities.  The common thread in so many of the #MeToo-type incidents reported in the media is the use of, or perceived threat to use, power to objectify or demean someone.   This power-based focus is not just limited to gender; it plays out in interactions between individuals of different races, national origin, religions, sexual orientation and other protected classes, and thus it should be emphasized in any policy prohibiting harassment, not just those pertaining to sexual harassment.

Power disparities also are not limited to supervisor-subordinate relationships.  Consider a new hire being shown the ropes by an employee with five or ten years of experience.  Those individuals may be peers on an organization chart, but there still is a power disparity that can cause the new hire to feel uncomfortable objecting to offensive behavior.

Other times, the behavior at issue may not fall into the category of actionable harassment based on a protected characteristic.  Sometimes the behavior is just demeaning and abusive on an individual or group level.

Regardless of whether the behavior would give rise to a legal claim, the nature of such conduct can be corrosive in the work environment.  It can undermine morale, loyalty and productivity.  One step in addressing that is to add a clear, express statement in your anti-harassment policy that you will not tolerate the use of, or perceived threat to use, power to objectify or demean someone based on a protected class.  Employers that want to go further than the law can build on that with an anti-bullying or workplace conduct policy emphasizing that actual or perceived misuse of power, including abusive behavior, is not acceptable and grounds for disciplinary action.

Employment policies need to comply with legal requirements, but employers have the option of holding employees to a higher standard of behavior.  Updating policies to incorporate lessons learned from #MeToo is an important step in that process.


January, 2015

When Power Should Go to a Manager’s Head (or at least stay top of mind)

It may seem obvious, but all too often managers seem to forget that power disparities in the workplace can turn otherwise innocuous encounters into fodder for a sexual harassment claim.  That is how Steelcase, a Michigan-based workplace furnishings manufacturer, incurred years of legal expenses defending a claim of sexual harassment by a former sales manager.  She claimed that a regional manager twice held his hand on her shoulder for an extended duration and commented on how she owed him because he had done a lot to get her hired.  These events occurred ten months prior to her termination for poor performance, and based on the absence of any allegedly inappropriate conduct in the intervening months, the federal appellate court ultimately upheld the dismissal of her legal claim.  But the claim might never have been made were it not for the regional manager’s indiscretion in maintaining an extended hold of her shoulder, a touch that might have been received differently had it been among peers.

It’s not just physical touching that can be problematic.  Fry’s Electronics reportedly paid $3.2 million to settle a sexual harassment and retaliation claim a few years ago.  According to the EEOC’s press release (and the EEOC regularly issues a press release when it negotiates a settlement), the case revolved around encounters between an assistant store manager, a female sales associate, and the sales associate’s direct manager.  The sales associate complained to her direct manager that the assistant store manager sent her frequent, sexually charged text messages and invited her to his house to drink.  The sales associate’s direct manager was fired after he reported the complaint.
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December, 2014

LIFE’S LESSONS* Winter 2014, Real Issues…Reconstituted Facts


‘Tis the season for holiday parties, and the headaches that result when staff fail to conduct themselves appropriately in a less formal setting. Advance planning can help minimize these situations, including a friendly reminder from senior management about expected behavior, arrangement for car service on standby to transport those who are too drunk to drive, and possibly even designating certain company representatives to be attentive at the party to inappropriate behaviors. But what happens when the official party ends? Is the company then relieved of further responsibility for the actions of its employees? Unfortunately, that is not always the case….

Antics After the ABC Co. Holiday Party

More than 200 people attended ABC Co.’s annual party. Richard, a mid-level manager, and two of his peers were still revved up when the official party ended at 11 pm. They invited some of the junior staff on their teams to meet them at Blizzard, a bar located a few blocks from the company party. The junior staff spread the word to some of their peers, and by midnight, 25 ABC Co. employees had gathered at Blizzard. Richard bought a round of drinks for the ABC Co. employees who were standing around the bar, and then joined a group of the junior staff in the corner of the room.
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November, 2014

LIFE’S LESSONS* Summer 2014, Real Issues…Reconstituted Facts


A single request for a date does not amount to sexual harassment, or does it? That all depends on whether there is a back story. Let’s consider what can unfold….
Jerry, age 27, was recently hired as an associate at Acme. Jerry does not have any direct reports, but he has been assigned as a summer intern mentor. Jerry was invited to Acme’s summer welcome event, at which he met Paula, an intern in the department, who is entering her senior year at college.

Jerry was struck by Paula’s easy laugh, and the following day he initiated a conversation with her over Acme’s instant messaging system. Over the next several weeks, Jerry regularly IM’d Paula, asking about her hobbies and interests, and sharing information about himself. Paula never initiated the exchanges, but she would reply. Once, Jerry invited Paula and her mentor to join him and his intern mentee for lunch. Paula declined due to a conflicting meeting with her supervisor.
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