The Higher They Are, The Harder YOU Fall

Presented by HELENE WASSERMAN Littler

Shareholder | Co-Chair, Litigation and Trials Practice Group

HWasserman@littler.com | 213.443.4288

Superstar Harassers

in 2016 and 2017

“Superstar Harassers” – Every Organization

Has Them

Superstar Harasser

• Highly valued, productive and successful employee

• Employers may react more leniently, and overlook complaints related to the superstars because they don’t want to loose them

• Costs of keeping them are often greater than the costs of losing them

Abuse of power

• Politicians

• Media Moguls

• Sports Figures

• Religious Leaders

• CEOs, Business Executives

• Specialized Knowledge

• Extremely Wealthy

#MeToo Movement

• Created in 2006 by Tarana Burke:

− to help survivors of sexual violence find pathway to healing (particularly young women of color from low wealth communities)

− “Empowerment through empathy”

− Ensures survivors they are not alone in their journey

• Explosion of movement in October 2017

− Not about taking down powerful men

− About helping in healing journey

GOAL: Eradicate sexual violence

EEOC: Select Task Force on the Study

of Harassment in the Workplace

EEOC: Select Task Force on the Study of Harassment in the Workplace

• June 2016 Report by Chai R. Feldblum and Victoria A. Lipnic

• Spurred by the 30th anniversary of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the landmark case recognizing sexual harassment as a violation of Title VII

Task Force’s Discussion of “Superstar” Harasser

Over a year before the Weinstein allegations, the EEOC discussed the “superstar” harasser situation:

• “In short, superstar status can be a breeding ground for harassment”

• The privileges accompanying superstar status may lead to a self-view that they are above the rules

• Report argues that the impact of allowing superstar harassment to go unchecked is overall negative on both productivity and a company’s reputation

Tone at the Top Is Vital for Preventing Sexual Harassment! 2016 EEOC Study - Harassment in the Workplace

• In a 130-page report on harassment in the workplace, the EEOC issued 45 specific recommendations and identified 12 “risk factors” concerning workplace harassment and its prevention

• Two things became clear:

1. Leadership and commitment to a diverse, inclusive, and respectful workplace in which harassment is simply not acceptable is paramount

2. This leadership must come from the very top of the organization

How Do We Do It? Create a Culture

of Respect?

What We Can Do: Roadmap for Today’s Discussion

• Make fairness, civility and respect guiding principles

• Be aware of situational risks • Encourage all employees

and bystanders to speak up • Know how to recognize

problematic behavior and what to do next

Fostering a Respectful Workplace

Fostering a Respectful Workplace:

Civility Awareness

Initiative #1: Civility Awareness

Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted. Employers should communicate and model a consistent commitment to that goal.

− EEOC Task Force on the Study of Harassment in the Workplace

Why Do We Talk About Workplace Incivility?

• Sensitize employees about appropriate workplace behavior

• Talk the talk ... walk the walk ... be a model of proper conduct at all times

• Enforce policies vigorously, from EEO and harassment to codes of conduct

• Partner with HR to ensure the proper response is made

What Is Workplace Civility?

• “Behavior that helps to preserve the norms for mutual respect at work... demonstrated through courtesy, politeness, and a general awareness of the rights, wishes, concerns, and feelings of others. These are the interpersonal “rules of engagement” for how we relate to each other”

• Incivility: “Low intensity, deviant behavior with ambiguous intent to harm the target”

Abusive Conduct—The Next Level?

• Abusive conduct is “conduct... with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious”

• Cal. Gov’t Code sec. 12950.1 (emphasis added)

Incivility, Abusive, Harassment?

ACTION ITEM : Know the Difference Civility

◄ Going out of your way to help someone ►

◄ Acknowledging your mistakes and making appropriate amends ►

◄ Saying please and thank you ►

◄ Using a positive tone of voice ►

◄ Filling the copier with paper after using the last piece ►

◄ Apologizing when you offend someone ►

Incivility

► Failing to return phone calls, voicemails, emails ◄

► Humorous put downs, eye rolling ◄

► Chipping away at self-esteem through constant slights ◄

► Eye rolling, heavy sarcasm, derogatory remarks ◄

► Not keeping appointments, interrupting conversations or meetings ◄

► Yelling, phone slamming, fist pounding, spitting, throwing objects ◄

Fostering a Respectful Workplace:

Bystander Intervention

Initiative # 2: Bystander Intervention

• What?

− People will tailor their behavior to the reactions of others

• How?

− Create Awareness—Enable bystanders to recognize potentially problematic behaviors

− Create a sense of collective responsibility

− Create a sense of empowerment

− Provide resources

Bystander Intervention

• The burden is not only on the “victim.” Leadership, coworkers, men and women at all levels need to be allies

• It's On Us. Originally developed to reduce sexual violence on school campuses, it empowers all to be part of the solution

• EEOC: “Doing so could transform the problem of workplace harassment from being about targets, harassers, and legal compliance, into one in which co-workers, supervisors, clients, and customers all have roles to play in stopping such harassment”

Bystander Intervention

• EEOC: “We know that most co-workers are not comfortable when harassment occurs around them, even when they are not the direct victims of the harassment. Bystander training could teach co-workers how to recognize potentially problematic behaviors; motivate and empower employees to step in and take action; teach employees skills to intervene appropriately; and give them resources to support their intervention. Organizational culture starts from the top. But reinforcing that culture can and must come from the bottom, middle, and everywhere else in between”

Bystander Intervention: The Basics

• Look directly at the person to whom you are speaking

• Be concise

• Watch tone and words

Use “I” Statements

Bystander Training—General Strategy

A Model For Bystander Intervention

Assess the Situation Ready Your Response Decide How to Help Enforce a Standard

#1 #2 #3 #4

ACTION item : Intervene

If You See Something > Say Something

Fostering a Respectful Workplace: Situational Awareness

Initiative #3: Situational Awareness

• Identify risk factors for harassment that may exist in a workplace

• Adjust your prevention approaches according to those risks

Apply Situational Awareness: Recognize Potential Risk Factors Among Your Workforce

• Homogeneous workforce

• Non-conforming employees

• Cultural & language differences

• Outside events

• Many young employees

• High-value employees

• Power disparities

• Customer satisfaction

• Monotony

• Isolation

• Alcohol

• Decentralization

ACTION ITEM : One Size Does NOT Fit ALL!

• Be aware of surroundings

• Ask self: Is response appropriate for the specific set of circumstances?

• Answer will vary

• Always have company policy and law in mind

Fostering a Respectful Workplace

Accessibility

Initiative #4: Create a Speak Up Workplace

• How is the Company (or its employees) to know something is going on if people don’t feel comfortable?

• Speak up!

The Objective—A Speak Up Culture

• It is in an employee’s best interest to report any incident of potential harassment immediately. Supervisors MUST report a situation any time they have intervened in, been reported to about, and/or observed, behavior that could potentially violate the harassment policy

Create Multiple Access Points

• Complaint to manager (or ANYONE in management role)

• Complaint to Human Resources

• External resources

• “Hotline”

• Anonymous?

• App-based complaint?

No One Here Listens to Me and My Ideas

Grant a Voice and Listen Empower your employees to speak up

encourage employees to report

inappropriate workplace conduct…

before they talk to someone else.

ACTION ITEM : Keep YouR Door Open

• Your policies are a great start to

preventing harassment and other

unwanted behavior in the workplace

• Make sure you are also encouraging

reporting by keeping an open

door policy to the extent possible

Fear of Retaliation Inhibits the Speak Up Culture

Retaliation by anyone in the workplace

IS FORBIDDEN against any person engaging

in a “protected activity”

Fostering a Respectful Workplace

Proper Response

Initiative # 5: Respond Appropriately

• NOT ALL RESPONSES FIT ALL SITUATIONS

• Find out the facts

Responding to the Complaint

Jaffe Dickerson Legal and

Consulting, PC

Five Initiatives to Help Restore Trust

• Civility awareness

• Bystander intervention

• Situational awareness

• Create a speak up workplace

• Respond appropriately

Questions?

Thank You!