Harassment Free Culture 2020

Thank you for making the time to take this training. You know as an organization we put people first. That's why it's important that we have a respectful workplace that ensures the wellbeing of each and every employee, an environment where everyone feels safe and has the freedom to concentrate on getting their jobs done well. 

And when it comes to creating and maintaining a harassment free culture, your role as a manger is particularly important. Because you help set the tone not just for your team, but for the entire organization. 

In this course you will be shown how it's not only essential you set a good example yourself, but you also keep an eye open for any disrespectful or inappropriate behavior or possible harassment that might be occurring. And you'll be given examples of how to address such situations in an effective and timely manner. Thank you.

Courts and employers generally define sexual harassment this way:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment

- when submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,

- when submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals,

or

- when such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

I think it's important, in order to understand sexual harassment law, to understand where it came from. A number of states have enacted their own statute that prohibits sexual harassment, but before those statutes were there, there really wasn't any law against sexual harassment. But we had Title VII, the Civil Rights Act, which said that it was unlawful to discriminate against someone because of their gender.

And it started a number of cases coming out of the South where it was predominantly women who'd be bringing claims saying that, in my workplace, I'm treated differently than the men. And those differences were in the form of rude comments, being touched inappropriately, having to endure lewd pictures, and that sort of thing.

And so a number of them brought claims in the Federal District Court saying, I'm being treated differently with respect to the terms and conditions of my employment, so therefore that's discrimination under Title VII.

And so therefore, what happened was a number of courts rejected those opinions, rejected those claims, until finally, one court finally said, you know what, if the conditions are so severe and hostile as to affect the terms and conditions of the work environment, then conduct that's directed at a person because of their gender equals discrimination, and therefore that's illegal.

Courts and employers generally define sexual harassment this way:

Unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment

– when submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,

– when a submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals,

or

– when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

When I think about harassment in general, I think of probably - it may not be the most egregious situation but in my career it seems to be one of the most painful.

There was an employee that was in my client group, and one day her manager approached me and said, I think that you should talk to this engineer in my group. And I was like, okay what are the specifics? And she is like, she said, I can't really go there but I think you should talk to her. She wasn't really comfortable telling me this. So I sat down with this employee to figure out what her story was, and she just starts shaking, visibly, like shaking, starts crying. And I was like, hey what's happened? Like, why are you crying? And she said, I feel like I may have screwed up.

And I was like, well tell me what you think you screwed up. Apparently she'd been at the company eight months or so. Her first day there, there was an engineer who was really nice to her - a peer of hers. He was very nice to her and he helped on-board her, helped her get settled, introduced her to people. And so she felt like she owed this guy something because he was so nice to her.

He started asking her out - probably week two on the job - and by this point she'd been at the company eight months. He asked her out. She had a boyfriend. She said, hey i have a boyfriend, please don't do that. He started getting more aggressive in asking her out,. She still said nom joked around with him, every now and then would go out to lunch with him to hopefully, in her mind, you know, get him off her back.

Then he started buying her gifts. Then he started - she was an engineer on pager duty - he would page her messages to her pager, call her, email. And I said, well what sort of volume are you looking at? She's well, like I knew you would ask me that, so she hands me a folder. There's over a hundred plus emails in there of him emailing her constantly. He found her personal email address, he found her home address showed up to her house a couple times. So she just had outlined for me a litany, just verbally, and I asked her then document it all and provide it to me.

And she was just in tears, I don't want to get him in trouble, he on-boarded me, he's a nice guy, I don't know if I could live with myself if something bad happens to him. I had to reassure her that coming into work should be a safe haven for you, it should be a safe environment where you can come into work and be the best possible employee you can be, create the best possible work you can create, and not come into work scared or nervous that this guy's going to hit on you again.

He didn't do anything - he didn't touch her- some people might look at is and say how egregious was it, he didn't physically touch her. But that's not what harassment is. Harassment doesn't have to be physically touching someone, it's creating a toxic environment where you're continually doing something that makes someone uncomfortable. And after you ask someone out once and they say no, your right to ask them out again has been revoked.

I once got a call from this guy and he said, You know Mark, I've a real serious problem.

I need you to come down here and look at it. So it turned out I go down there and it was late and he said, you know, I was looking for paper because the printer had run out. And I knew, or I thought, my admin kept the paper in the desk - in her desk.

So I went to open the desk drawer and there's a naked picture of Ricky Martin sitting there looking at me. You know, so what do I do?

But ultimately the issue was, as disturbing as it might have been to perceive that, the issue was, you're really not supposed to have that type of inappropriate material in the workplace.

Now if you're into the naked Ricky Martin thing, you know, God bless you - but you don't need to have that at the workplace.

You know, I once had a member of my team - a wonderful woman who was extremely warm, generous, extroverted and very demonstrative - who noticed that there were members of the organization around her, not just in my immediate team, that were much more private and more introverted and less tactile. And she took it upon herself to be a hug coach, an unofficial hug coach, and would kind of leap on these people and hug it out once every couple of weeks.

And after seeing, you know, one particular individual kind of do this for about the third or fourth time and saying I'm really not comfortable, I had to take her to one side to say, look what you are doing is really inappropriate. It's making people feel uncomfortable, and it's what it's doing is satisfying your own emotional needs to kind of take care of them and to be warm and friendly towards them. But actually what it's doing is having the opposite affect - actually making them feel quite uncomfortable around you and it could result in a complaint.

You know I think all managers have a responsibility to look at and look out for those kinds of situations when they arise, and it was something that I felt I couldn't ignore. I feel really strongly about complaints of harassment is that, you know, companies have legal processes, and there is an external legal channel for people to mitigate the fact that people often want a sense of justice and they want an apology.

And actually, as managers, if you're able to nip these problems in the bud when you see them, and try to do what you can to encourage the individual that's responsible to apologize and cease their behavior, that is actually often the most powerful way to resolve these things before they get out of hand.

In this particular situation, this employee that I was managing was shocked and very surprised, and actually a bit upset that the affect that she was having was completely opposite, and that she was also laying herself open for a possible complaint. She immediately talked to the individuals that she'd been doing it to and apologized. They completely recognized and accepted her apology, and what could have grown into a serious complaint or problem for her was actually resolved very amicably.

So one of the things that I think is really powerful in situations like that as a manager, is that you take immediate steps to encourage an individual to see how their behavior is inappropriate and for them to better solve it really very quickly so that it doesn't grow into something that's a major problem for them and for the company.

Cases where people think that because they had a screensaver on, that that somehow protects the inappropriate stuff they're doing on the computer. And the classic case was a gentleman who had his desk situated so he faced the door coming into his office, and therefore his computer screen was facing him and you couldn't see it as you walked by.

Well, he was interested in online pornography and so he would enjoy that during the day, and then when he would take a break he would put on a screensaver - presumably a much more mundane image. In any case, like most screen savers worked, if you at all moved the mouse, the screen would come back up.

And so his admin would come in when he was on a break occasionally and have to move things around on the desk, and would, you know, move the mouse and there's the image of pornography that she gets to enjoy - or not, in this case. And so she eventually said, complained saying, look this is inappropriate. I have to go in this guy's office and I have to deal with all these pornographic images. This is inappropriate.

And so that's an example of how, even though this person thought he was being really smart and only sharing with himself this stuff, he actually ended up sharing it with his secretary and it didn't work out.

I had a situation where we hired a senior manager who was in the minority in terms of the culture of the company, he was older than most of the employees, he was more conservative. It was not an issue but I think it contributed to how the situation played out. He was a very, very diligent manager in terms of being very up front with this team, telling them where he was coming from, setting expectations. He went through the sexual harassment training, he prided himself on being a very mature responsible individual, manager, family man, all of those things.

His teams was largely made up of young, attractive females, which didn't seem to pose any problem initially, until several of those individuals came to me concerned about some behavior on his part. And they were very nervous to come to me because they felt like he didn't, he wasn't aware of what he was doing and it was going to hurt him to know that people were being, not bothered, but they were concerned about how he was behaving and so they were reluctant to sat. It wasn't one of those where this person's harassing me I want them fired it wasn't like that at all, but the issue was, he was doing the elevator eyes.

They'd come in the morning dressed very, not provocatively, but interestingly, I'll put it that way. And apparently he was doing this and they said he would do it in their one-on-ones, they'd notice him doing it if they were walking down the hall, and they got increasingly uncomfortable with that action on his part. And all they wanted was it to stop. That's all they wanted.

And so I told them I would talk to him. I would keep their names out of it, but that I would have to tell him about the behavior and take it from there. And that's what I did. Everything worked better than you could hope.

He stopped the behavior instantly and he became very more aware of things he was doing subconsciously. And everybody was satisfied with the outcome and it was basically everybody lived happily ever after. He was mortified, and he was totally unaware that he was behaving that way.

Had a man come to me and he said my boss is really offending me.

What was the problem here? He was a little embarrassed and said, well every time I walk into his office, he's got his screen pointing at the door and he's watching porn on it. I said, he's watching porn? Well no, he's just got a screen saver up there, but it's a naked woman and I don't like it.

Now I'm sitting there thinking at first, oh come on, we're guys. But then I realize very quickly this was creating a hostile work situation for his employee. His employee was finding it hard to get work done - he couldn't even go in and have a one on one with his manager.

His manager's solution of turning the monitor around was not good enough. He had to stop.

We just looked at the type of unlawful sexual harassment that results in a hostile work environment. Now we’re going to look at the other type of sexual harassment known as Quid Pro Quo. 

Quid Pro Quo occurs when an employee’s continued employment, promotion or other job related benefits are conditioned upon compliance with sexual advances or demands, or negative job consequences result from the refusal by the employee to comply with the advances or demands.

Only individuals with supervisory or management position over a worker can engage in Quid Pro Quo harassment, since they have the authority to grant or withhold job benefits.

Right, well this was my very first company in Silicon Valley and I came in as a Recruiter, which was pretty much what HR was back in those days in small companies, a company of about six-seven-hundred people. And the person who hired me was right around my age.

A young woman, director of HR, she was in her late twenties, I was probably in my early thirties. I'd been doing property management and working in the food business before that and I had no concept of what sexual harassment was, but I developed a close relationship, a working relationship with my boss. And I would consult with her regularly.

She was a great person to brainstorm with. It eventually went to, hey, why don't we go out and have dinner after work? And so I just followed her lead, she was an attractive woman, but in my mind I really didn't think anything was happening on a romantic level with either of us. And it's really funny because we had been out a couple of times.

I got promoted, I got a raise, you know - quickly. And I just didn't put two and two together I just thought I was doing a good job.

Anyway, the guy I shared a house with, he got his girlfriend one evening, came up to Palo Alto, we went out for dinner - I can still remember it. And after the dinner he came and said, you know, Cheryl really likes you. And I said, yeah, well we have a good working relationship. He goes, Rich, she really likes you.

So that led to me going over to her place one night for dinner with the whole staff. She was doing a little dinner at her house, and when we were leaving, she said, (everyone else was sort of slowly going out to their cars), and she said, you can stay. I said, oh yeah, you mean like have a glass of wine? And she says, no, no, you can stay the night. And I said, you know Cheryl, I don't think that's a good idea.

The next day when I came to work it was like I was working for a totally different person. She had literally morphed into a beast - said I wasn't doing my job well, I needed extra training - she starting micro-managing me. I mean it was miserable. Projects that she'd been supporting me on, she started to withdraw her support. It was pretty bad. And ultimately what ended up happening was, I began to realize that she was pissed off because I wouldn't spend the night.

They talk about two different types of sexual harassment. There's what we've been talking about mostly, which is hostile environment sexual harassment, but there's the other species of Quid Pro Quo sexual harassment. And it's easy to understand it as a definition, but it's much more subtle in practice.

As a definition, really all it means is that you offer something in exchange - something inappropriate, some sort of sexual thing presumably - in exchange for some sort of job benefit. So you say, If you have sex with me, I'll give you a better job. Or the flip side of it would be to say, If you don't have sex with me, I'll demote you.

Those cases are rare, and they're probably rare for two reasons. One is, nobody's really dumb enough to do that, but it's also rare because the evidence of it is never as clear as you'd think. You never have a video recording or an audio recording of somebody saying, "Gosh, if you have sex with me I'll give you a promotion." That just doesn't happen.

So those cases are usually proven by circumstantial evidence, and the way it works is, someone is propositioned and they say no, and the next thing you know they're demoted, or given a bad performance review, or both, or they're suddenly fired. And then the court is allowed to use the facts surrounding what we know to show, well this wouldn't have happened but for a decision to say I'm not going to have sex with that person or I'm not going to agree with their invitation.

So Quid Pro Quo is the subtle occurrence where the jury is allowed to link a change in the workplace to, or a change in someone's review rating, or a change in their position to an alleged conversation that occurs about wanting to have sex or wanting to have some sort of an affair. But the cases, they just don't happen that often and I think that's a good thing.

You know it was very interesting in my second company, I was working as a recruiter and I had been there about six, seven months, and one day a manager came into me and said that she had seen a woman crying in the women's bathroom.

Obviously, because I couldn't go in the women's bathroom I wouldn't have seen it. And she....Without giving me any details she strongly recommended that I spend some time talking with this woman, it was a young girl really, from the production line.

She came into my office very hesitant to talk to me, and...but I put her at ease and I asked her what happened, and the story came out that her boss was asking her to have sex to keep her job. He basically told her that if she didn't do that he was going to fire her, and he had the power to do it. From each, from her I found out there were two or three other women, and eventually it turned out that there were four women that he had tried this with.

Two had basically told him to go shove it, excuse my language, but the other two were scared - I mean they were outright scared.

So I went to my boss, and told him the findings, and he said - he was the head of HR - he said, Rich, you've got to go to the VP of Operations and tell him the story. And I did, and he looked at me and said, well you know the guy was in Vietnam, you know, went through a lot of stress - boys will be boys. In other words, there wasn't going to be any resolution except a hand slap.

So what I ended up doing, and I don't know why I had a moral moment, I thought about it a couple of weeks and I resigned and left the company.

Rich should not have had to resign, and the situation he described would likely not play out the same way these days when most employers are keenly aware of their responsibility to prevent unlawful harassment from occurring in the workplace, and to promptly investigate all complaints and take corrective action when needed.

It's interesting when you do the sexual harassment training in a group of men and women; its interesting you often have a very different view of this case between the men and the women.

But basically the case was as follows: it occurred in a bank, and there was the bank manager and a teller, and the bank manager had sex with this teller, I believe by their own testimony, one-hundred-and-forty-something times. They testified that they had consensual sex something in the order of one-hundred-and-forty-times, which in any event, that's what they testified to.

And then she sued claiming, that not withstanding the number of sexual encounters that were allegedly consensual, she sued claiming sexual harassment when ultimately she was terminated. And so a number of people looked at that case and thought, well how in the heck can they possibly bring a claim? I mean they has sex like one-hundred-and-forty times, and it seems like there was a consensual relationship.

And when you sort of ask that question to the audience when you do sexual harassment training, you get an interesting divide.

A number of people will say, wait a second, one hundred and forty six times and he's the branch manager? To what extent was it really consent, and was it forced? And that's exactly the line the court took. The court said, we don't really necessarily believe that it was consensual because of the power differences. Because you had a supervisor who had the power to fire her, it's not clear that she really consented to the sex willingly anyway.

So the court said, we're willing to permit the claim to go forward even though there was a claim of consent, because it's not clear that with the power difference, that was really consent.

In addition to sexual harassment, another form of unlawful harassment is conduct directed at someone based on a personal trait that is considered a Protected Classification under State Law.

Protected Classifications include the following:

•Race

•Color

•Religion

•Sex (including pregnancy, childbirth, and related medical conditions)

•Sexual orientation and identity

•Marital status

•Age (40 and older)

•National origin or ancestry

•Disability: physical or mental

•Medical condition

•AIDS/HIV

•Genetic information

•Political activities or affiliations

•Military or veteran status

•Status as a victim of domestic violence, assault or stalking

•Opposition to unlawful harassment

•Association with, or perception that a person is of a protected classification

Mark is a rising star in Marketing. Despite the fact that he is based in a satellite office, he’s getting great assignments, including the newest product release project.

Mark can be an imposing personality—the kind of guy who sucks the air out of the room when he walks in—and as such, he tends to command a certain respect in the organization.

Everyone on the team knows that if you push back on Mark, it’s an act of courage.

The office is currently undergoing renovations, so space is at a premium. Sections are taped-off for painting and drywall installation, and everywhere you look, there are busy people working in cramped quarters.

Last week, Isabella confided to her co-worker Tara that Mark was hassling her. She complained that he was always doing this little dance to block her way as she walked down the hall, and she was just putting up with it as part of working in a small office and trying to be a good sport.

But today, as she was getting some papers from the printer in the hallway, Mark walked up behind her, put his hands on either side of her hips and moved her to one side, even though there was plenty of room for him to walk around her. She had finally had enough.

A new grad with a degree in English, Maria has been at the company as a temporary employee for five months, and is hoping to be hired as a regular employee very soon.

She has a reputation as a hard worker and someone who is likable and generally willing to do whatever it takes to accomplish results.

Ajay just started as an employee in Operations less than a month ago. Quite often, Ajay directs Maria’s work so she tries to make a good impression.

Ajay is very friendly and outgoing. In fact, he can be quite loud and boisterous and his voice tends to carry over cubicle walls.

Today as Maria walked past his cubicle, she overheard him on the phone saying, “You guys are going to love Maria, she’s pretty easy on the eyes.”

Maria likes working here and this is her first chance at a really good job, but she is not sure what to do. She comes to you, her manager, to ask for advice.

When you are unsure if your conduct or the conduct of your team members is offensive, you can check the impact you are having by simply asking others if what is being said or done is unwanted or offensive.

Not everyone will be forthcoming with you about being offended, even if they are. Be aware of when people attempt to alert you to their discomfort through body language, facial expressions, or changes in group participation.

Remember it doesn't matter what the intentions are - it's the other person's perception that counts.

If your words or behavior have been out of line, apologize and promise that it won't happen again.

But in any case, for many years there was no law against same sex sexual harassment until a case came out of a drilling rig in the Caribbean. And what happened basically there was, this young man was hired to work on the drilling rig and some of the other men - and there were only men on the rig - some of the other men thought he was effeminate and made jokes about him, and called him homosexual, and did some horrible things like poking him with sticks and just treating him awfully.

Well anyway, he was so upset by it he ultimately had to quit and he sued claiming sexual harassment. And the case went all the way up to the Supreme Court, and there were two interesting things that came out of that court, that case.

The first thing that came out of that case was the recognition, which is seemingly pretty obvious now, which is that you can have same sex sexual harassment. And in that context, they did exactly what one school had thought, which is that you can, using stereotypes, direct sexually inappropriate conduct at somebody because of how you perceive them to be. And that was the first interesting thing that came out of that case.

The other interesting thing that comes out of the case, which also answers some questions people often have, is that one of the judges said that sexual harassment law isn't there to create a civility code.

We're really talking about conduct that's directed at someone because of their inclusion in a protected class. So in theory, under that law, if you're just boorish and rude to everybody, that's not sexual harassment; but if you are a particular boorish and rude person toward certain genders or certain ethnicities, than that is illegal.

All employees should be addressed their preferred gender, name, or pronoun. It is unlawful in California to impose any physical appearance or dress standard on an applicant or employee that is inconsistent with the individual’s gender identity or gender expression.

The regulations define “transitioning,” in part, as a process by which an individual begins living as a member of the gender with which they identify. The law now clearly prohibits discrimination against a person who is transitioning, has transitioned, or is perceived as transitioning.

Equal access must be provided to restroom facilities that correspond to the employee’s gender identity or gender expression. In other words, employees must be allowed to use the restroom of the gender with which they identify.

Justin has been a marketing analyst with the company for two years, and is currently busy working on an important product launch project. In the last few months, he has been coordinating with HR in preparation for an upcoming gender-affirmation surgery because he is ready to transition from identifying as male to female.

Justin wants to make sure his team’s work won’t be compromised while he’s away, so he. created a plan for his manager detailing the product launch project’s coverage over the next few months. He has already spoken with some of his teammates, who are very supportive.

Justin has a good relationship with his manager, Heather, but when he reminds her about his upcoming surgery and leave of absence, things start to change.

Heather responds to Justin by saying, “You want to take four months off in the middle of a product launch? Come on Justin, is this really necessary? Can’t you just wait until after the project wraps up?”

Justin lets her know that he has already worked with HR to have this approved and scheduled with the doctor. “I’m really sorry I can’t be here, but I’ve devised what I think is a workable plan, and everyone on the team is very supportive. I promise I’ll pick up right where I left off when I get back.”

Heather scoffs, “Well I suppose I can’t do anything about it then, just don’t expect to be assigned any new work. As of now, your situation is just a distraction to the team. ”

Heather walks out of the room leaving Justin in shock and refuses to speak to him any further.

Recently, in preparation for his transition, Justin begins to wear dresses and makeup to work. He also begins using the women’s restroom located near the team’s work area. When Heather sees him going into the women’s restroom, she says in front of the team, “Justin why are you going to the ladies’ restroom? You haven’t had your sex change surgery yet.” Justin is embarrassed and upset by Heather’s conduct and comments and is not sure how to proceed.

After a leave of absence, Justin is fully recovered from surgery and ready to return to work as Justine. The HR Business Partner meets with Justine’s team prior to her first day back, letting them know how they can support her in this transition.

The HR Business Partner tells the team, “Justine now identifies herself using the pronouns, she and her, so let’s use these pronouns when we refer to her. It’ll take some getting used to, as many of you knew Justine as Justin.”

The team agrees. They are excited to have their teammate back. The product launch project is almost over and the team is gearing up for an overnight offsite event at a nearby resort to celebrate and debrief the project’s performance. Justine returns to work and is cheerfully greeted by her coworkers. 

Heather, however, is visibly distant and hesitant to speak to her. After a few days, Heather needs to relay details of the offsite event to Justine. She approaches Justine’s teammate and asks, “Can you make sure Justin knows the details for the offsite?”

The teammate replies, “You mean Justine, right? Yeah sure, I’ll let her know.”

With visible impatience, Heather says, “Yeah, whatever. Just make sure he knows that he has to share a room with the other guys. Thanks."

There was a manager who was great in terms of holding a high standard, he moved fast. Unfortunately he wasn't very good in giving feedback, and there was a scenario where he had an employee who wasn't performing very well, and he wanted to give feedback and did. And so where I came into the picture was the employee immediately showed up at my office saying that he was just yelled at by his manager and he was told he was going to be fired unless he improved his performance.

And when I asked the employee some questions around, you know, how has his performance been, what communication has he received from his manager up to date? The employee said, “I haven't gotten any communication, this is the first time I'm hearing about it, and I think that the reason why I'm getting this feedback is because I'm white, I'm a male, and I'm over forty.”

So interestingly, his manager was Asian, under forty, also male. But clearly not everything is protected classes, but still he raised the issue that he felt he was being treated differently.

We had to look into the allegations that he raised and talk to some people on the team, talk to the manager. Obviously something that cost quite a bit of time and was a distraction. And so while this manager wanted to move fast, wanted to improve his team performance, what really ended up happening was that we had to slow down, we had to backtrack and have quite a few conversations and it was quite disruptive to the team.

So the result of the investigation was we found that the employee was basically connecting the dots where there was no real harassment of hostile work environment in existence.

When I was an HR business partner I had a manager that came to me to explain that he had two employees sharing a cubicle, a small, a very small area together. One of them had a very strong religious faith conviction and the other had a tendency to use religious related profanity around in that person's presence, that was offensive to that other person.

Now profanity is one of those difficult things, because whilst organizations want to encourage a liberal, fair, open and perhaps even an irreverent culture, there is a limit to what's appropriate to either the values of the individual or what might even be illegal in the context of the law and harassment. In a situation like that, you can't ignore that because it's not only offensive potentially to the individual, but it can result in a complaint.

The individual in question that was offended by the use of that profanity, raised it with her manager and her manager came to talk to me about what he should do. And what I explained to him was that, first of all the use of religious related profanity may potentially be illegal harassment - a form of verbal illegal harassment - and there it needs to stop. But also, the use of anything that might offend somebody - particularly in close quarters, even whether or not if it falls within a protected category of the law - if it offends somebody's personal values, it's toxic to the culture, the team and to the organization, and as a manager you have a responsibility to prevent that.

I launched an internal investigation. I talked to both of the employees involved to try to understand exactly what had happened. So the starting point is to get the facts and try to understand what effect those actions were having, and then to make a determination about what's the right way to solve that problem. Now in this situation, what we did was talk to the individual that had been using that language, first of all to ask him to cease and desist, and secondly offer an apology to their coworker. Their coworker was gracious enough to accept that apology and the problem was resolved at the lowest level, which is between the two individuals.

Often people ask, in the context of what people normally call sexual harassment training, does it just involve gender or sex? And the answer is no.

If you go back to where the law began, it is actually conduct that's directed at a person because of their inclusion in a protected class, so it can be at someone because of their origin. And there was a case recently in California, it was a sixty-one million dollar jury verdict against both the company and the individual, so the individual had to pay I think was a million dollars.

And what happened there, the facts are quite simple. There were these two gentlemen who were working at FedEx just trying to earn money for their family and earn a living. And the boss (these two guys were from Lebanon so they were Lebanese), and the boss, (I don't really remember what his background was), but he would call them terrorists and camel jockeys. And those were the two words that came through to the jury. And ultimately the jury concluded that because the boss called them camel jockeys and terrorists, that was harassment.

And of course it wasn't sexual harassment - it was national origin harassment. And so the jury awarded them collectively sixty-one million dollars, and again one million of that was directly to be paid by the individual who used the terms terrorist and camel jockey.

So it's an example where your own behavior can come and really get at you.

So we all have our own lens. So when we're dealing with people, more then one person, different people's perspectives, we all see it through a different lens.

We see it from how we grew up, our cultural bias, our upbringing. Our experiences are a bias, so that creates a lens on how we view different behaviors and different situations.

As a manager, you set the standard for a harassment free culture by treating others based on individual merits without regard to race, religion, gender or any of the other personal and protected traits, refrain from stereotyping, innuendo, or using disparaging language based on people's traits or background, and don't engage in joking based on the attributes of any type of protected characteristic.

You build and maintain a harassment free culture by making it clear that you don't engage in, condone or allow discriminatory or offensive behavior.

Now lets look at Sex and Romance at Work.

Sexual or romantic interaction between consenting people at work is not sexual harassment. Welcome or invited actions or words are not unlawful. 

However, when one person in the relationship has authority over the other, there is a risk that the relationship will result in favoritism, or that the person not in authority feels they must go along with the relationship in order to avoid negative consequences.

And when one person wants to end a relationship and the other person doesn’t, unwelcome or uninvited conduct or communication of a sexual nature can become a harassment issue for the employer.

Nadia stayed late at the office on a Friday, and on her way out she noticed that Ana and Rico were standing unusually close to each other in the break room. Not seeing Nadia, Rico leaned in and kissed Ana. Nadia and Ana both work on the same team, and Rico is their manager.

A little shocked, Nadia quietly left the building. She thought about mentioning the incident to Human Resources, but it was the first time she had seen that behavior and she didn’t want to cause any trouble so she decided to let it go.

The following week, Nadia and Ana began working on a project together to prepare a slide deck for Rico to present at a Marketing meeting. After working through the weekend together to meet the deadline, and feeling great about the work they’d done, they sent the slide deck to Rico for his approval.

The next morning, Nadia came into the office to find Ana and Rico alone in a conference room with the slide deck projected on the screen. It looked like Rico was reviewing the slides and practicing for the presentation.

When Ana returned to her desk, she told Nadia that Rico was really pleased with the slide deck and had asked Ana to co-present with him at the Marketing meeting. When Nadia asked if she would be co-presenting as well, Ana told her, “Your name didn’t come up.”

After that, Rico brought Ana into more and more projects and Nadia was left out. She thought back to when she saw Ana and Rico in the kitchen that Friday and wondered if Rico was playing favorites. Nadia began to reconsider going to Human Resources to report what she had seen.

There was a couple who had a romance in the office and it was very quiet for a very long time. They were both married, they both left their respective spouses. She was working for him and they eventually got married, and they still were with the same company, but when their marriage went south, it destroyed the relationships, between, not only the individuals, but the people that they worked for, because they didn't know whose lead to follow as a result, so it became a very disruptive environment.

And as a result, we had a conversation with both of them - one of them had to leave because it was so damaging for the business. And neither one would go, neither one would cooperate. Both in senior management positions, so we ultimately had to ask them both to leave. We ended their relationship with the company.

That one was cheap, about half a million dollars in terms of severance, wrongful termination and such. And as result of it be a public company, that had to go into the board that was part of the disclosure in all of our public documents.

The problem is, you know, if you have two consenting adults in a relationship, from the employer's perspective that's just fine.

But if I ask anybody of any persuasion, "Have you ever had a relationship where you and the other person agreed on the exact moment when it didn't work out anymore or when one person wanted out?" No two people agree on that. And so a number of sexual harassment complaints arise out of when one person still thinks it's great and then the other person thinks it's over. And that inevitably, when it happens in the workplace and they're both at the workplace, that becomes the employer's problem. So that's the employer's concern as far as that goes.

Harassment laws extend to include all forms of electronic devices. Essentially, anything that's considered harassment in face-to-face communications is considered harassment when electronic devices are used to deliver the communication, including words or images that are unwanted, repeated, abusive, obscene or otherwise unwelcome.

The impact of offensive behavior is compounded by the ease of sharing the offending messages with others. Once you press send, you have no way to control how many people will end up seeing them. Think of all the news reports you see and the negative effects on people's live when seemingly private information is shared with the world.

When you're in the workplace or engaging in work-related activities, remember that all of your messaging is considered to be business communications, and therefore not private.

Maya and Stuart are both excited to attend SalesCon this year. They’ve heard how much fun it is and can’t wait to meet people from the other Sales offices. They arrive early the first day of the conference, and since registration isn’t for another four hours, w decides to go for a swim.

She changes into her suit and heads down to the pool. On the way, she messages Stuart via the company’s instant messaging app to let him know she’s going for a swim and will meet him for registration later.

At the pool, Maya sees that a photo backdrop had been set-up for SalesCon. Eager to share her fun work experience with her social network, she asks a bystander to take her photo with the backdrop. She sends the photo to Stuart and encourages him to take his own when he had the chance.

When Stuart opens the photo of Maya in her bathing suit posing in front of the backdrop, he is impressed with how cool she looks and shares it with his team back at work. He posts the photo and tags Maya, and decides to take a nap.

When Stuart wakes up from his nap, his phone is full of notifications. A team member commented on how attractive Maya looked and added it to a private message thread with some other men on his team. He opened the thread to find that the group had altered Maya’s photo with inappropriate comments and illustrations.

He then receives a message from Maya who is distraught because she has been contacted by their manager, who has intercepted a photo. She demands to know why Stuart sent her photo to the team without her permission.

They were such good friends at work, it was a true shame for them as well as the company. They were a high performing team - they worked really well together. They'd work all hours to solve a problem and enjoyed what they did. So when you enjoy what you do, it's all about strengths and performing well - they were really a high performing team. But this one relationship within the three went south. There were a lot of text messages going back and forth through the night, and I only found out about it later when one of the employees, Seth, complained about these text messages he was getting from Simon.

Well Simon and Emma were the ones who had this intimate relationship, but Seth is receiving these texts - probably to try to help resolve that problem - and he didn't want to get those texts, he could not get the texts to stop. So once the text is sent you can't get it back, so there sits in his phone this evidence that this is really inappropriate.

He's the one that complained, and when he came to my office and wanted to show me these text messages, you know, I was surprised at the language that was used. These were people that really cared about each other at one time. But Seth wanted it to stop, Seth was annoyed, I don't want to get these any more, I can't get him to stop and he won't leave me alone, and we all work together. Seth was ready to quit.

I actually had to tell him kind of what the basis of his coming to me meant, and yes, he did file a formal complaint. Actually, he would have preferred to not file a complaint and quit. And that wasn't the right thing for himself or the company. He deserved to work in an environment that was harassment free, he deserved to come to work, enjoy his job, and you know, feel good about what he's doing. He didn't deserve to have this kind of treatment, and it ended up being 24/7 - the nature of texting. So he came to me, he did complain.

He was ready to quit. I had to kind of talk him down and help him understand why his problem was really a bigger problem than just his.

When the advent of instant messaging came around we had situations where in one group people were saying things on instant messaging that was inappropriate and it had gone on for a long time and it got to the point where a couple of people decided that they wanted to stop but because they had been involved in doing it in the past they were unsure about how to get the whole group to stop with the inappropriateness on the instant messaging tool.

The action that was taken was that the whole group was brought together and talked to about how all of them had been involved in doing some things that were inappropriate and that people outside the group had noticed it.

We made sure in this instance that we didn't call out anyone in particular because all of them had been involved in doing this and so what we did is we told them that it had been brought to HR's attention that the whole group had been involved in sharing these inappropriate exchanges and so we required that they stop.

Harassment law extends outside the workplace to all work-related activities regardless of the time or place they occur.

As a manager, you are required to maintain the same code of conduct for yourself and your team during offsite or after-hours events as you would in the workplace.

Tess and her team just closed a deal with a client that is going to significantly increase the company’s presence in the market. Everyone in the office has been working on this deal and is very excited.

The team gathers in the kitchen to toast the win with a bottle of champagne. They quickly finish the bottle and decide they want to keep the celebration going down the street at the local bar.

They invite the their manager, Carly, hoping she will pick up the tab. She agrees because everyone has been working so hard and this is a big win. She tells them she’ll join them in a little while after she takes care of a few more things at work.

When Carly arrives at the bar, the celebration is fully underway. She comes in as Tess, a big contributor on the project, is being toasted once again. Carly gives her credit card to the bartender and says to leave the tab open.

Everyone is having a good time but it’s clear that some people are having too much to drink. This seems especially true of Ramesh. While he’s normally a person who projects his voice, he is now shouting and hanging on to Tess, insisting that she dance with him.

Tess appears clearly uncomfortable with Ramesh’s advances, and tries to move away from him without making a scene. Soon Tess gives up and leaves the party.

As the celebration continues, Ramesh begins to stumble and the bartender cuts him off. Carly sees that some of the employees are disturbed by his behavior and approaches him saying, “Ramesh, this is a work event and your behavior is inappropriate. I’m going to have to ask you to leave now. I’ve called a car to take you home.” Ramesh quietly leaves the bar, and the team’s Friday night comes to a close.

But just as a side note, when you come talking about off duty work conduct, you know it's often impossible to separate on duty and off duty conduct because something that may happen in a bar often translates into feelings in a workplace.

And so even though the law there now tells us that off duty work does impact the legal liability issues for the company, it's also true that this is a practical matter - it's impossible to draw some sort of invisible line between conduct that occurs off the workplace and then on.

I can remember a situation that happened after hours at one company where a team had gone out, what they call team building, but they really had gone out on St. Patrick's Day for a little bit of green beer. The green beer ended up not being a little bit, but a lot, and after awhile the team stayed for dancing and whatnot. And after that evening, the next day, one of the women came in and said she felt like there was some harassment going on because there was a lots of innuendo after a few drinks, and some of the dancing got a little handsy.

Afterwards, when we learned that she felt uncomfortable about things that had gone on, is we put together an investigation and had a conversation with all the people who were there. And as those things usually go, the more we dug, we found some more people had left, some people stayed on, and at the end when things got kind of uncomfortable there was a small group of people there. And so we were able to determine, of the people who were there, who were the ones involved. All of them had too much alcohol and were very apologetic about the fact that they had gotten to that point.

The person who was the one who was accused of being a bit handsy was actually admonished, had a letter go into his file, and so he was warned that if anything ever happened like that again his position could and probably would be terminated with the company.

It is unlawful to retaliate in any way against an employee who makes a harassment complaint or cooperates in an investigation. Retaliation can take many forms and most are subtle.

As a Manager, it’s your job to be watchful for any signs of retaliation against the person who made the complaint or against anyone participating in the investigation. Be aware that changes in job responsibilities or assignments, exclusion from professional activities, micro-management or negative performance reviews can be perceived as retaliation.

The law also prohibits employers from discharging or in any manner discriminating or retaliating against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking, if a victim provides notice to the employer of the status, or the employer has actual knowledge of the status. 

Additionally, the law requires the employer to provide reasonable accommodations that may include the implementation of safety measures or procedures for a victim.

Immediately report any appearance of retaliation to HR.

John is a Manager on the company’s Technology Transfer Team. While he’s not new to the company, he is new to working at the company headquarters. He has an informal way of managing and communicating, with a reputation for having a good sense of humor. He thinks a good manager should keep things light and he starts meetings on an upbeat note by telling some jokes.

Once in awhile, John’s jokes are sexually suggestive to the point where Valerie, a coordinator new to his team, finds them unacceptable and inappropriate. Valerie shares her concerns privately with her HR Business Partner who then calls John in for a meeting.

The HRBP tells John that a member of his team has complained, stating that they are uncomfortable with his jokes.  She advises John to take this seriously, using words like “hostile work environment and sexual harassment.”

Before John leaves the meeting, he asks who complained about his jokes. The HRBP says she can’t disclose the identity of the person who filed the complaint, and tells him not to do anything or say anything to anybody about the situation while it is still being investigated.

John can’t believe someone complained to Human Resources about him. Everybody on his team always laughs along with his jokes. He’s determined to figure out who is causing him trouble.

John really wants to find out who reported him. At the next team meeting, he tells a couple of inappropriate jokes just to study people’s reactions. He notices Valerie isn’t laughing and what’s more, she has a disapproving expression on her face. John concludes that Valerie is the one who reported him.

He believes most people appreciate the way he keeps things upbeat with his jokes and have no problem with some adult humor once in awhile. But since Valerie feels uncomfortable with his jokes, he needs to make some changes.

He removes her name from the list of people required to attend the regular team meetings, so she won’t feel as though she must attend and therefore can avoid being uncomfortable.  He also stops assigning Valerie to projects that require frequent meetings and interaction with him.

So the question often comes up, how do they prove retaliation? What is that? Well, retaliation, there's two parts to the claim.

The first part of the claim is that you engaged in some kind of protected activity, and classically what that is, is reporting that you're being sexually harassed, or agreeing to be a witness for someone who is saying they're being sexually harassed, or that sort of thing. So that's easy to prove. And then the second part you have to prove is that something sort of bad happens to you. And I'm being flippant, it's more technical than that but that's basically it - you have to prove something bad happened to you.

And that's the hard part sometimes the more subtle part, because typically there isn't some sort of audio tape or video tape of somebody saying, I'm going to get you for that Smiley! - or that sort of thing. What you typically have is, someone engages in protected activity, they complain about something. They say, I'm being sexually harassed, and next thing you know they're being demoted, they're being transferred, they're being terminated.

And so you have to be particularly vigilant in those situations when someone's complaining to make sure that their performance is being fairly evaluated, and that there isn't some form of improper bias in the decision about what to do about a particular employee who has made a complaint.

One of the most intriguing cases I ever encountered was, several years ago, I'd hired a very senior sales executive to come out from across the country to relocate to California.

He came out without his family and he lived in corporate housing. And during the course of his employment, to nobody's surprise, he did become involved with one of his employees. It was consensual - obviously he was married, she was single.

What happened was, occasionally people would see them at various restaurants or bars, hugging, kissing - it was very romantic. So nothing really happened until a point came where we suddenly had to have a reduction in force. and it came to pass that the person that we had to reduce in force was the employee that worked for this senior sales executive. And it was a really redundant situation - her position was eliminated.

But she came to me one day and said, I understand that my job is being eliminated, my boss has told me that. I said yes, that's true. She said, "You know, is it because I have become involved with my boss?" And I said I didn't even know you'd become involved with your boss, but it has nothing to do with that.

She said, I think the company might be retaliating against me because, number one, people are whispering about me in the hallway, people don't look me in the eye.

I hear different rumors about how I'm involved with this individual and it's beginning to hurt my performance. I think the company might be retaliating against me.

I said no, it has nothing to do with whatever conduct you engage in after hours. This is a legitimate reduction in force. We are going to obviously take care of you, we will give you out-placement counseling for you, we'll do some other counseling for you. We'll do our very best to find you a job.

But despite the fact that I did my best to assuage her, I was still very concerned that she felt she had been retaliated against because of her relationship with the senior executive. It was a learning point for me in this process too.

For employers, in addition to time and resources, the financial costs of harassment claims include legal defense and liability.

Employees who have suffered unlawful harassment may be able to recover:

- Money for lost wages and other expenses

- Compensation for experiencing emotional distress due to the harassing conduct

- Monetary penalties or punitive awards against the employer

- Money to pay for attorney fees

The most significant cost of harassment is the human cost. It damages relationships and reputations, destroys teams, lower morale, decreases trust and productivity, and increases fear, conflict and stress. It causes communications to break down and results in high absenteeism and turnover rates.

In light of the human cost alone, the important of fostering a harassment free culture at work can't be overstated.

People often have a question about where is the line drawn, and that is, if I go after work and I'm at a bar and I sexually harass someone - is that illegal, or can the company be sued? And there was an interesting case that came out, it went to the jury, and it was actually quite simple.

And the facts were that there was one particular guy that after work he would spank some of his coworkers, just spank them on the bottom. And one of the coworkers sued for the spanking, and the question was whether or not that off duty spanking would constitute sexual harassment. And the answer was, that yes it could. And indeed, not only did the jury find that the company was liable for some of the conduct, they held him - the spanker - personally liable for a million dollars for spanking.

So that case is an example of how off duty conduct can turn into a lawsuit for the company, but it's also a good example of how inappropriate conduct cost this guy a million dollars and it was nothing more than a spank. Although he did spank quite a bit, but never the less, you shouldn't really spank people - period.

The worst result I've seen in my career as a result of sexual harassment, and I think about it quite often because it was huge, it affected the entire company: The highest producing sales person at a very successful start up, we had to fire because of what I would call visual hostile environment. He was showing images on his computer, as well as getting into another person's computer, big no-no, and sharing those images with other people in the workplace.

And the resolution, no matter what we did to try to figure out how to solve this in everyone's best interest - the people who were offended, the victims, the harasser (who I think probably was naive and really not intending to cause harm), as well as the company - we had to fire the biggest producing sales person in the company.

That was huge. I actually never thought that was going to happen and that's what ultimately the CEO chose to do as result of this. The behavior was so egregious and there was no way to resolve this and save the employee. So having to fire someone is probably the worst thing I can imagine happening through these kinds of relationships and hostile environment issues that go south.

I've not only seen where lawsuits come up, I have been deposed for hours and days and been involved in those situations. Lawsuits do come up. Everyone has the right to sue anyone else, and there are a lot of lawyers out there who are happy to take a claim on a contingency because it's really not much risk for them to take something that sounds pretty juicy. This is all really juicy stuff. When you read it in the paper and you see it in the news, we all for some reason like an ambulance chaser and accidents, you know, that drive by wanting to see accidents, we all have this fascination with this kind of behavior, it's I guess a natural thing.

So lawyers like to take these kinds of cases. They believe that there's deep pockets they want to go after and lots of money to get for fees and for settlements. So I have been involved in a number of law suits where these things weren't as bad as they sounded, but boy you get different people on the stand and people will lie. That's my experience, is people will lie in court and in a deposition - not just because they see things differently - but I've seen people out and out lie. Because I was in a room talking to them and I know what they said to me at one point and then I see them and they say something completely different when under oath. So I don't like to believe people do that, but know from experience they do.

And being in those situations, wasting so much time and so much money on something that is just so ugly and really, there's no good result out of this. None ever. You pay - you -pay by money, you pay by time, you pay by reputation. These are some of the worst things I've dealt with in my career.

You know, often I think managers sometimes think that maybe if I just ignore the problem, if I pretend I didn't see that, it'll go away. But let me sort of give you an example of what happens to you if you do that.

Typically the decision to ignore a problem comes out in a deposition, and the way it works is something like this. So imagine that you'd seen something that maybe you thought was harassment, maybe you didn't - you weren't sure - but you made the decision for whatever reason to just not mention it or not deal with it. Maybe somebody even comes and complains to you and you decide, You know what? I'm not going to deal with it.

What happens is, the company will get sued and then the question will be asked of the company, Name all the people who might have information about this. In some way or shape or form your name comes up. And then what'll happen is, we'll be going into a deposition and I'll be sitting right next to you and a question will come to you:

Q: Do you remember going through sexual harassment training?

A: Yeah I do.

Q: And as a manager of the company, it's your responsibility, is it not, to maintain and enforce the sexual harassment policy, isn't that right?

A: Yes it is.

Q: And you take that very seriously, don't you?

A: Yes I do.

Q: So serious in fact, that in fact, if somebody came to you and complained about sexual harassment you would absolutely do something about that, wouldn't you?

A: And the answer is yes, yes I would.

Q: Do you remember my client?

A: Yes I do.

Q: So when my client came to you and said she had had such and such happen to her, you went right to Human Resources didn't you?

A: Well, no I didn't.

Q: Oh I know, it's because you realized it was so important you went right to the CEO didn't you?

A: Well, no?

Q: In fact did you do anything to follow up on the complaint that my client made to you?

And the interesting thing from my perspective is that there's a really simple solution to solve all of the problem to solve all of the problem, and that is go to HR. That's the easiest simplest thing to do. If you see something that you think might be a problem, you are absolved. It's like being given absolution by a priest. You go to HR and say what you know and then let them handle it. I mean they're the ones that are professionals at dealing with this stuff.

You're probably a professional at Marketing or PR or Engineering and this isn't your speciality. So you can go to HR and then let them handle this, that's their area of expertise, rather than having that uncomfortable deposition where I have to then rat you out and say yes, you really screwed the company up.

Watching the latest celebrity sex tape while you're at work - One Hundred Thousand Dollars. 

Asking for a date, and asking, and asking - Three Hundred and Fifty Thousand Dollars.

Sexting your team back the office - One Million Dollars.

Being harassment-free - Priceless.