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.

Several notable elements in this fact pattern drove the high settlement, but one important lesson again centers on power disparities.  Being asked to join a coworker for drinks after work is considered “hanging out” or possibly a date request; the same offer from a manager is different – it could imply that the manager is expecting sexual favors, or the employee may fear there will be negative repercussions at work for declining the offer.

Pay Particular Attention with New Managers

While the stakes are high in any employment relationship, there is particular exposure with those newly-promoted into managerial roles, or junior staff who are granted limited supervisory authority.  It can be awkward for the entire team when a newly promoted manager supervises his/her former colleagues.  Even if they formerly were close friends, the new manager must be careful that his/her actions will not be perceived as favoritism, particularly if the manager’s friends within the team are not as diverse as the team as a whole.

As for junior staff, it is not uncommon for them to be assigned to supervise interns or trainees.  But they may be assigned this authority without appreciating the conflicts presented when they try to date or form close friendships with the individuals they are training.

The overriding concern illustrated by these examples touches every workplace.  Anyone imbued with managerial or supervisory authority over others must remember the power disparity this authority creates between the manager/supervisor and those reporting to him/her.

Three Preventive Steps

There are preventive measures employers can take to reduce the risk of such power-based harassment claims:

  1. Go a step beyond an all-inclusive training session on recognizing and preventing sexual harassment. Follow up on the training with periodic targeted reminders on the key training points, including a reminder to managers and supervisors focused specifically on the lesson that their actions and words carry a different connotation when directed at the individuals reporting to them;
  1. Remember to train junior staff who are assigned to supervise interns or trainees that, while they may closely relate to the staff they are training, they have now been imbued with supervisory authority and must conduct themselves accordingly. Provide concrete examples of what is expected of them as trainers/supervisors, including with regard to after-work social outings; and
  1. Respond promptly, discretely and appropriately to all complaints of sexual harassment. Having an anti-harassment policy and training program in place are only effective defenses to a sexual harassment claim if the employer also practices what it preaches by investigating and addressing reported concerns.

With proper precautions, businesses can reduce the liability risk that is attendant with any employer-employee relationship.

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