Early in June 2016 the Equal Employment Opportunity Commission (EEOC) released the Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace. It’s good stuff. You ought to read it, especially if you work in human resources.
In January 2017 the Commission issued its PROPOSED Enforcement Guidance on Unlawful Harassment and solicited public feedback. I was somewhat surprised by the in-depth responses they received on the feedback site. Lengthy reports with footnotes.
My conclusion is that many interest groups want to get into the weeds. Because the final guidance is not yet available, I’m assuming the lawyers are continuing to argue the details.
Time to Change the Focus
I can understand why employers worried about liability and compliance might want to join in the debate, but I’ve got a better idea. Stop worrying about whether something is technically sexual harassment and start thinking about how to create a safe workplace where all employees feel respected and appreciated.
To do so, you’ll need to teach your managers to think and lead beyond legalities and policy. In hundreds of sexual harassment workshops I’ve coached managers that their accountability doesn’t end with compliance, explaining that there are five levels of responsibility to consider.
Obviously managers can’t ignore the law, but by doing what I suggest they cover the law in the course of pursuing a more positive vision for a respectful workplace.
5 Levels of Leadership Accountability
When your leaders want to know what they are accountable for in terms of creating a safe and respectful workplace, I suggest you tell them to pay attention to all of the following five levels.
Level 1: Federal Law
The narrowest focus and least amount of effort your managers can make is to ensure your company isn’t violating Title VII of the Civil Rights Act of 1964. In other words, it’s illegal for employers to allow discrimination against employees based on a person’s race, color, religion, sex, or national origin. It’s also illegal for employers to retaliate against employees who complain about discriminatory practices.
Sometimes I wonder why we are still talking about this, but if recent news is any indication, it’s clear that there’s still plenty of work to be done on this front.
Level 2: State and Local Law
State and local jurisdictions can add other protections that aren’t covered by Title VII. Your managers need to understand the local laws that apply and make sure your company complies with them.
For example, sexual orientation and gender identity are protected in some states and not in others. Some of the feedback the EEOC received on its proposed guidance addresses this area of the law. The proposal interprets federal law to cover both sexual orientation and gender identity, but I’ve learned that it’s not settled federal law. Hopefully, one day the courts will clear this up.
Level 3: Employer Policies
In addition to all applicable laws, employers may enforce, through policy, additional protections against behaviors that aren’t illegal but may still cause problems.
For example, coarse language isn’t in itself illegal. But knowing that some employees find it objectionable or because it might create an image problem with customers, an employer could put into policy that the use of curse words and phrases on the job won’t be tolerated.
If it’s in the employer’s policies, managers and supervisors are responsible for ensuring compliance. Failure to do so means that they aren’t fulfilling the most basic expectations of their position.
Level 4: Respect
Leaders whose only interest is compliance focus their energy on the first three accountability levels. Leaders who want to get beyond worrying about how a specific behavior will be legally interpreted raise their workplace behavioral standards and manage to those higher standards.
Level 4 focuses on the question, “Does the behavior fit our definition of respect?” Leaders operating at this level do three things:
- Behaviorally define and communicate what is and is not respectful behavior. For example, you might decide that bad mouthing coworkers behind their backs is not okay. Better yet you define a positive alternative, Talk to people with whom you have a concern.
- Reinforce people who demonstrate respectful behaviors.
- Coach people who demonstrate disrespectful behaviors and administer consequences when employees don’t respond to the coaching.
If your leaders focus on this level, they are addressing the first three levels too because anything that is questionably illegal or against policy is most likely also disrespectful.
Level 5: Risky Behavior
This last one might seem like overkill because it asks managers to deal with behavior that isn’t a problem…yet. But it’s the level on which managers should focus if they want to prevent problems in the first place.
If no one objects to a behavior, it’s hard to argue anyone’s being disrespected. The problem is that you might just have a group with low standards or high degrees of tolerance. In different circumstances, a reasonable person might suspect that someone may find the behavior problematic. When your leaders notice these kinds of behaviors, it’s time to do some coaching.
Once I was leading a workshop, and at the break I noticed the company president giving another participant a shoulder rub. The recipient didn’t look bothered to me, but I couldn’t help wonder if he was okay with the impromptu massage. I also wondered if the president regularly did this.
It’s possible it is just his thing and perhaps everyone who gets a massage from the president is happy to receive the free stress relief.
Still, my suggestion would be for a brave HR manager or another executive to have a conversation with the president that goes like this. “I notice you give people massages. I’ve never heard anyone complain about one yet. I’m concerned, though, that one day someone might not like it or misinterpret your intentions.”
And if the person offering this coaching had any authority over the president, for instance the company owner, he or she might want end the conversation with, “Please don’t give employees massages.”
Operate Beyond the Legal Nuances
The law is complicated. There’s a lot to interpret and understand. I’m not a lawyer, so I personally stay out of the weeds.
That why I think employers should deal with behavior that’s clearly illegal and for everything else that’s seemingly on the legal fence, create a safety margin so that no one even comes close to wandering over the line. You do that by managing to the higher standards of respect and risk.