Category Archives: harassment

Lessons from the Sterling Scandal

With the salacious details of the Sterling Jewelers pay-discrimination lawsuit still sickeningly fresh in our minds, many of us have been asking how such behavior — as alleged by some of the 69,000 former employees involved in the suit– could happen at such a large company.

From security guards with overactive wands to district managers with overheated libidos, the sexual-misconduct accusations truly run the gamut of the perverse, according to court filings.

“But don’t they have programs in place to prevent this sort of behavior?” we wonder.

For its part, the company has denied any wrongdoing. On the matter of pay and promotion discrimination, the accusations are “not substantiated by the facts,” Signet Jewelers Limited, the parent of Sterling, said in a statement. In addition, Sterling said it found the claims of sexual misconduct to be without merit.

But today’s New York Times takes a look at some of the programs that may have unwittingly contributed to the harassing behavior being alleged by the suit plaintiffs:

…[L]awyers and academics who specialize in gender discrimination say the documents — more than 1,300 pages in total — provide a rare insight into how a company’s policies work in real life. Whether it is a not-so-confidential tip line or an in-house court, they say, some widely used corporate procedures can mask problems that women often face in the workplace. Here is a look at what the documents revealed.

The Times article looks at three employee-centric programs in particular: the company’s employee hotline, its arbitration policy and its “tap on the shoulder” promotion policy.

The entire article is well worth a read, if only to remind HR leaders that, just because you have a program in place to remedy a problem, that doesn’t mean it’s necessarily working. In fact, it could actually be covering up more issues than it is resolving, as Sterling is now learning the hard way.

 

 

 

 

 

Critical Uber Blogger Lawyers Up

Things just keep getting worse for Uber.

Various media outlets are reporting Susan Fowler, who wrote a scathing blog post about her alleged experiences with sexual harassment and stonewalling from Uber’s HR department — has lawyered up.

Susan Fowler, a former Uber engineer whose Feb. 19 essay detailed myriad examples of sexism, tweeted Thursday that “Uber names/blames me for account deletes, and has a different law firm – not Holders (sic) – investigating me.”

Fowler also said in her tweet that she has retained the employment law firm of Baker Curtis & Schwartz.

According to USA Today, on Feb. 24, Fowler tweeted that “research on the smear campaign has begun,” and she urged her friends not to provide personal information should they be contacted. She then added that she didn’t know “who is doing this or why.” At the time, Uber denied any knowledge of a smear campaign, and called such behavior “wrong.”

CEO Travis Kalanick and other execs then held long meetings with upset employees, and faced criticism from investors who blasted the company’s “toxic” environment and urged wholesale changes lest the company lose its way.

Kalanick addressed the issue directly in an emotional meeting with 100 female engineers.

“I want to root out the injustice. I want to get at the people who are making this place a bad place,” Kalanick said.

“I understand this is bigger than the Susan situation,” he said, adding that the topic was “a little bit emotional for me.”

Given the pervasive nature of Silicon Valley’s sexual-harassment problem, it’s not hard to imagine that almost every one of those 100 female engineers has a story similar to Fowler’s.

 

Uber’s Toxic Workplace Culture

A company director shouting a homophobic slur at a subordinate during a meeting. A manager groping female co-workers’ breasts during a company retreat. A manager threatening to beat an underperforming employee’s head in with a baseball bat. All of these incidents — and more — are described in a fascinating front-page story on Uber’s workplace culture by New York Times reporter Mike Isaac, who based his story on interviews with 30 current and former employees of the ride-hailing service and reviews of internal emails, chat logs and tape-recorded meetings.

As you’ve probably heard, Uber found itself thrust into the spotlight after former employee Susan Fowler published a blog post last Sunday about her experiences working for the company. Fowler, an engineer, said she and other women were sexually harassed and discriminated against by her manager and little to nothing was done about it, even when she reported it to HR, because the manager was a “high performer.” (Fowler’s descriptions of her interactions with Uber’s HR department are particularly damning: For example, when she noted to an HR representative how few women were in her engineering department, the rep allegedly told her that she shouldn’t be surprised by the ratio of women in engineering because people of certain genders and ethnic backgrounds were better suited for some jobs than others.)

Fowler and other current and former Uber employees told Isaac that HR would excuse poor behavior by their bosses because the managers in question were top performers who benefited the health of the company. The company’s culture — set by Uber CEO and co-founder Travis Kalanick — emphasizes getting ahead at all costs, the sources told Isaac, even if it means undermining co-workers and supervisors. One group in particular that was shielded from accountability was “the A-Team,” the sources said, a group of executives close to Kalanick.

Since Fowler went public with her accusations, Kalanick has brought in former Attorney General Eric Holder and board member Arianna Huffington to conduct an independent investigation of the issues Fowler raised. He said the company would release a full diversity report shortly and that 15.1 percent of the engineering, product management and scientist roles at Uber were held by women and that that number “has not changed substantively in the last year.”

In a statement to the Times, Uber CHRO Liane Hornsey said “We are totally committed to healing wounds of the past and building a better workplace culture for everyone.”

Hornsey, who joined Uber in January (its former HR chief, Rene Atwood, left in July to join Twitter) and who will assist with the investigation, spent nine years as Google’s vice president of global people operations. Hopefully she’ll be able to put her experience and expertise to good use at a company that appears to sorely need it.

Uber’s Sex-Harassment Inquiry

In case you missed it over the long holiday weekend, there’s plenty of trouble brewing over at ride-share app Uber.

It’s now so serious that the company hired former U.S. Attorney General Eric Holder to investigate whether the company has appropriately addressed discrimination and harassment claims made by female workers.

The investigation comes after former Uber engineer Susan Fowler Rigetti posted her story on Sunday, detailing her experiences enduring sex harassment at the hands of her direct manager, as well as the stonewalling she says she was subjected to by the company’s HR and leadership after she repeatedly brought the claims to their attention.

According to Fowler Rigetti:

On my first official day rotating on the team, my new manager sent me a string of messages over company chat. He was in an open relationship, he said, and his girlfriend was having an easy time finding new partners but he wasn’t. He was trying to stay out of trouble at work, he said, but he couldn’t help getting in trouble, because he was looking for women to have sex with.

It was clear that he was trying to get me to have sex with him, and it was so clearly out of line that I immediately took screenshots of these chat messages and reported him to HR.

Uber was a pretty good-sized company at that time, and I had pretty standard expectations of how they would handle situations like this. I expected that I would report him to HR, they would handle the situation appropriately, and then life would go on – unfortunately, things played out quite a bit differently.

After receiving less-than-enthusiastic support from HR, she describes how she came to know other women at Uber who had experienced the same harassment and subsequent stonewalling, and how those women decided to use a strength-in-numbers approach to alert HR to the seriousness of the ongoing issue:

Myself and a few of the women who had reported him in the past decided to all schedule meetings with HR to insist that something be done. In my meeting, the rep I spoke with told me that he had never been reported before, he had only ever committed one offense (in his chats with me), and that none of the other women who they met with had anything bad to say about him, so no further action could or would be taken. It was such a blatant lie that there was really nothing I could do. There was nothing any of us could do. We all gave up on Uber HR and our managers after that. Eventually he “left” the company. I don’t know what he did that finally convinced them to fire him.

After the story initially broke, Uber CEO Travis Kalanick tweeted that the behavior mentioned in the post was “abhorrent & against everything we believe in. Anyone who behaves this way or thinks this is OK will be fired.”

Hiring someone like Eric Holder will definitely add credence to an investigation that had previously looked paper-thin. And while only time will tell if Holder uncovers any more stories like Fowler’s, I get the feeling this sordid story isn’t over by a long shot.

A Glimpse Inside a Strange Corporate Culture

At Bridgewater Associates, the world’s largest hedge fund, employees are expected to familiarize themselves with “a little white book” written by the firm’s founder, Ray Dalio, that’s filled with more than 200 of his “principles” on life and business. Aside from the overtones of Chairman Mao and his little red book, a New York Times story that’s based on documents from a filing against Bridgewater by the National Labor Relations Board and interviews with former employees and people who’ve done work with the $154 billion company suggests there are other odd practices at the Westport, Conn.-based firm.

An employee who filed a complaint earlier this year with the Connecticut Commission on Human Rights and Opportunities likened the company in his complaint to a “cauldron of fear and intimidation,” the Times reports. Employees are under constant video surveillance, all meetings are recorded and security guards regularly patrol the building, all as part of an effort to “silence employees who do not fit the Bridgewater mold.”

Employees in some units of the company are required to lock up their personal cell phones when they arrive at work, the sources tell the Times.

Such secrecy and surveillance sounds, and probably is, uncomfortable, but then again hedge funds do tend to be secretive places with enormous amounts of money at stake. But at Bridgewater, the practice appears to have been taken a step further, with meetings between employees and managers not only routinely recorded but also shown to other employees. For example, new are shown videos of confrontations between executives and managers in an effort to “give new employees a taste of Bridgewater’s culture of openly challenging employees and putting them on the spot,” the Times reports. In one such video (which is no longer shown, according to the former employees), a confrontation between executives and a female manager ends up with the woman breaking down and crying. That certainly must have made for a memorable onboarding experience.

The employee who filed the initial complaint with the state commission was Christopher Tarui, an adviser to large institutional investors, who contended that he was sexually harassed by his male supervisor. In his complaint, Tarui said he did not report the conduct “out of fear it would become public because of the firm’s policy of videotaping confrontations between employees.” He ultimately complained to Bridgewater’s HR department, he said, because his supervisor gave him a bad performance rating despite the fact he’d been promoted and given a pay raise a few months earlier. Tarui said in his complaint that the firm promised to investigate, but management tried to persuade him to withdraw his allegations.

Tarui said all of his meetings, including his meeting with HR to complain about the alleged harassment and a subsequent meeting with top executives, were recorded and “widely shared” with managers at Bridgewater, the Times reports.

“The company’s culture ensures that I had no one I could trust to keep my experience confidential,” Tarui said in the complaint.

He filed the complaint in January. However, in March both Tarui and Bridgewater jointly asked to withdraw the complaint from consideration by the Connecticut human rights commission, which halted its investigation. The Times notes that Bridgewater employees (as at many companies) are required to settle disputes through binding arbitration.

However, the Times reports that in a related action, the NLRB later filed a separate complaint against Bridgewater accusing the company of “interfering with, restraining and coercing” Tarui and other employees from exercising their rights through confidentiality agreements that all employees are required to sign once they’re hired. The Times obtained the NLRB complaint and Tarui’s initial complaint through a Freedom of Information Act request. In a statement to the Times, Bridgewater said “we are confident our handling of this claim is consistent with our stated principles and the law.”

Two Tough Lessons on Training

New commercial truck drivers must cover thousands of miles with a trainer before they can work on their own. For women, that means ThinkstockPhotos-57533192spending weeks in close quarters with a boss who most likely is a man.

What could go wrong?

A pair of recent Equal Employment Opportunity Commission cases suggests the situation is every bit as risky — both for drivers and employers — as you might think.

The cases involve two trucking companies that got in trouble over sexual harassment of female trainees. One escaped major sanctions and may even recover legal costs from the agency, thanks to a U.S. Supreme Court ruling that lawyers call a victory for employers.

The other … let’s just say it didn’t go well.

That company, Missouri-based Prime Inc., is one of the nation’s largest long-haul truck companies. After a female trainee charged the company with sexual harassment and the EEOC sued, the company in 2004 adopted a new procedure: women trainees were paired only with female trainers.

But in the end, the new procedure apparently did far more harm than good.

Because the company had only five women trainers, according to the EEOC, women trainees had to wait a year or more to get in. Men, however, were accepted immediately.

In 2011 the EEOC sued again, and U.S. District Court Judge Douglas Harpool didn’t have much trouble concluding the training practice was discriminatory. In April he signed a consent decree ordering the company to pay $2.9 million to 68 women who had applied to the company’s training program.

The settlements, which include back pay and compensatory damages, ranged from about $29,000 to nearly $92,000 each. The company also agreed to hire all the women immediately. In addition, the company paid $250,000 to another female driver trainee who had brought the complaint to the EEOC.

On top of that, the company — which finally ended its same-sex training policy in 2013, two years after the EEOC filed suit — promised not to reinstitute the practice.

Was Prime’s 2004 training policy a well-intentioned response to the first complaint that accidentally led to a second one? Or a passive-aggressive jab at women who had complained? In a final order in the case dated May 26, the judge says he can’t tell.

“While Prime’s same-gender training policy was illegal, misguided, and ill-advised, the court is not willing to find … [it] was evil or malicious,” Harpool writes.

The other trucking company fared better in its battle with the EEOC. On May 19 the U.S. Supreme Court unanimously found that Iowa-based CRST Van Expedited Inc. may be entitled to $4.5 million in legal expenses it incurred battling the agency over another sexual-harassment case.

The case stems from a 2005 claim by a female driver trainee who said she was sexually harassed. Two years later the EEOC filed a class-action suit on behalf of 250 women whom it said had been victimized. Most of those plaintiffs were dismissed, however, after the court found the EEOC had not properly investigated their claims.

Employment lawyers lauded the Supreme Court’s ruling as a victory for employers.  The ruling “has made clear that a defendant may be entitled to recover attorneys’ fees even absent a victory on the merits,” write Lindsey M. Marcus and Michael A. Warner Jr., partners in the employment law practice of Franczek Radelet in Chicago.

Though the outcomes were very different, the lesson for folks in HR is the same: Training, like trucking, can be a risky business.

 

 

 

 

 

 

Supreme Court Backs Workers

The U.S. Supreme Court ruled 7-1 yesterday  in the case of Green v. Brennan that the statute of limitations for Title VII constructive discharge claim begins on the date of the employee’s notice of resignation, not on the date of the last alleged discriminatory act by the employer.

According to Fisher Phillips’ Melody Rayl,  the court’s decision is a “bad one” for employers and will likely lead to an uptick in legal claims filed by disgruntled former workers.

“The question that confronted the Supreme Court is important because it goes directly to whether such constructive discharge claims are filed in a timely manner,” Rayl writes. “Prior to filing suit for discrimination under Title VII, employees must first file a claim with the Equal Employment Opportunity Commission (EEOC) within 180 days ‘after the alleged unlawful employment practice’ occurred, although the time is extended to as much as 300 days if the claim is also filed with a state or local agency authorized to investigate such claims.”

Further, Rayl writes, the Supreme Court’s decision now opens the door for former employees to file constructive discharge claims long after the alleged discriminatory conduct occurred by simply delaying their resignation indefinitely.

Now may be a good time for some legal background, courtesy of Rayl:

What Is A “Constructive Discharge?”
In a claim for constructive discharge, a former employee accuses the employer of engaging in discriminatory or retaliatory conduct that makes the working conditions so intolerable that any reasonable person in the shoes of that employee would feel they have no choice but to quit. In other words, a constructive discharge means a worker is forced off the job by the employer.

The concept of constructive discharge is a sort of legal fiction, allowing workers who claim to have been subjected to particularly egregious workplace treatment, but who have not been fired, to nonetheless resign from the offensive work environment and preserve their right to seek damages in the form of lost wages and benefits.

While the ruling is plainly a win for employees on this front, Rayl notes there was one area of the ruling in which employers can take solace:

In the smallest of victories for employers, the Court did acknowledge the limitations period should begin to run when the employee gives notice of resignation rather than on the date the resignation becomes effective.

With respect to Green, the Court found the facts were not sufficiently developed to pinpoint precisely when his notice of resignation occurred. Thus, the Court remanded the case back to the Tenth Circuit to determine, as a factual matter, whether he gave notice of his resignation on the date he signed the settlement agreement or nearly two months later when he submitted his retirement paperwork.

All things considered, that’s a small victory for employers indeed.

Can Sexual-Harassment Training Backfire?

An article in the British newspaper The Guardian has sparked new debate in HR circles over whether sexual-harassment training can cause more harm than good.

The article recounts research suggesting that training may make some men less sensitive, not more, to appropriate boundaries in the workplace. Among others quoted in the piece is Lauren Edelman, a law professor at the University of California, Berkeley :

“Sexual harassment training may, in fact, make it less likely that males will recognize situations that are harassing … Sexual harassment training may provoke backlash in males.”

Some of the research pointing in this direction is more than a decade old. One often-cited study from 2001 concluded that men who had training were less likely than those who didn’t to recognize or report sexual harassment.

But some research is more recent, suggesting the problem is not going away. In one 2012 study, a sociologist interviewed workers and sat in on training sessions. Justine E. Tinkler, now at the University of Georgia, concluded that they often resisted the message:

“Gender stereotypes are used to buttress perceptions that sexual-harassment laws threaten norms of interaction and status positions that men and women have an interest in maintaining.”

sexual harassment

Related research has found that sexual-harassment training can mostly inspire fear among workers.

This is a hot topic with many in the HR field. Many who weighed in online acknowledged the problem, but argued it’s less of an issue if the training is of high quality.

Writing in Slate, Nora Caplan-Bricker cites a 2013 study that, she says, “suggests that it is possible to teach people how to identify sexual harassment — and to convey how company policies treat it — without inciting a backlash effect.”

Studies suggest that training that lasts at least four hours, that is interactive and led by an expert or direct supervisor, rather than an HR specialist, are most effective, Caplan-Bricker writes.

Many employment lawyers seem to agree. One is Richard Cohen, a partner in the New York City office of FisherBroyles. He writes:

“After conducting my fair share of harassment trainings, and studying, critiquing and/or sitting in on numerous others, I come down on the side of those academics who believe that harassment training is helpful and productive when done right.”

More Sexual-Harassment-Policy Rethinking

Came across this recent research from the University of Missouri that adds credence to a Q&A I did late last year with the author of a Sexual harassment at work in the officebook titled Sex and the Office: Women, Men and the Sex Partition That’s Dividing the Workplace.

Both the MU researchers and the author of the book, Kim Elsesser, seem to be getting at the same point about today’s sexual-harassment policies in the workplace. For the most part, they’re not effective because they incite more fear of possible infractions than encourage healthy banter between men and women.

The more recent findings, from MU, studied how employees’ interpretations of sexual-harassment policies can invalidate the purpose of the policies. Researchers found that employee perceptions of how exactly “sexual harassment” is defined by a company’s policy can, in effect, eliminate or reshape the meaning of the policies and contradict the norms and values of the companies that try to enforce them.

As one of report’s co-authors, Debbie Dougherty, associate dean of research and professor of organizational communication in the MU College of Arts and Science, puts it:

“Although the policy statement [might specify] the importance of building a culture of dignity and respect, the participants in the study reinterpreted the policy in such a way that they believed it actually created a culture of fear. This inhibits the camaraderie participants believed was produced by normalized sexual banter, behavior and jokes.

“Our findings suggest that the ways in which employees construct meaning around the policy can preclude the usage and effectiveness of the policy; therefore, sexual-harassment-policy research should focus on the complex ways that our understandings shape policy meanings in order to find more effective ways to address sexual harassment in the workplace.”

Which is kind of what Elsesser gets at in her book. It’s her premise that senior male executives and male managers, who can and want to help women under their supervision advance, are reluctant to reach out or get into any personal discussions with them for fear they’ll be breaking company rules and policies governing sexual harassment and discrimination.

As her book’s description on Amazon puts it, “many male executives stick with other men, especially when it comes to dinners, drinks, late-night meetings or business trips, [and] when it’s time for promotions or pay raises, these same executives are more likely to show preference to the employees with whom they feel most comfortable — other men.”

So the vicious cycle continues.

Just as the MU researchers suggest, Elsesser thinks HR executives need to be aware that focusing on sexual-harassment prevention may have secondary consequences. As she says,

“Right now, our efforts to eliminate sexual harassment may be creating this barrier between the sexes. Obviously, we need to continue on the path of reducing sexual harassment — but we must figure out a way to do this without creating this barrier. Instead, we should be thinking of ways to bring the sexes together.”

Dougherty would add that organizations need to discuss their sexual-harassment policies in a clear, concise manner “to ensure each employee has the same understanding of what is meant by sexual harassment.”

“Organizations,” she adds, “also would benefit from sexual-harassment training that acknowledges the gender dynamics of harassment.”

Not to mention the gender dynamics of trying, at all costs, to avoid committing such harassment.

How Much Are Caustic Workers Costing You?

There’s been a lot of research dedicated to studying the havoc wreaked by jerks at work.

Some of these studies focus on the noxious influence that abusive, bullying bosses have on their teams, and what employees can do to cope with an out-of-control supervisor.

Some find that being a bit boorish can actually work to one’s advantage in certain situations, and share advice for recognizing when the circumstances call for flipping the jerk switch.

Some even provide tips on how to self-correct if you are the work jerk, or are in danger of becoming one.

A new working paper from Harvard Business School, however, is taking a more pragmatic look at the workplace jerk, attempting to put a price—in actual dollars and cents—on what employees who are destructive in one way or another can cost an organization.

Spoiler alert: It’s steep.

Economist Dylan Minor and Michael Housman, chief analytics officer at Cornerstone OnDemand, explored a dataset of close to 60,000 workers across 11 different firms. The goal of the ongoing study, the authors say, is to document various aspects of workers’ characteristics and circumstances that lead them to engage in “toxic” behavior, defined by the paper as conduct that’s harmful to an organization’s property or people.

“I wanted to look at workers who are harmful to an organization either by damaging the property of the company—theft, stealing, fraud—or other people within the company through bullying, workplace violence or sexual harassment,” Minor recently told the Harvard Gazette.

Housman and Minor, a visiting assistant professor of business administration at HBS, also analyzed the relationship between productivity and the ripple effect that a toxic employee has on his or her peers.

While finding those defined as toxic are “much more productive” than their less-troublesome colleagues, the authors determined that the former actually diminish the productivity of those around them, and often drive co-workers to leave organizations faster and more frequently, generating sizable turnover and training costs. Ultimately, these caustic workers are so damaging from a financial standpoint that “avoiding them or rooting them out delivers twice the value to a company that hiring a superstar performer does,” according to the Gazette.

More specifically, the paper states that, “while a top 1 percent worker might return $5,303 in cost savings to a company through increased output, avoiding a toxic hire will net an estimated $12,489.”

And that figure, the authors say, doesn’t even include the money that could be saved by avoiding the litigation, regulatory penalties or decreased productivity that a devious or disruptive employee may leave in his or her wake.

These bad seeds come in all shapes and sizes, of course. But the paper identifies a few key predictors to help find them lurking within your workforce.

Toxic workers, for example, tend to demonstrate very high levels of self-regard or selfishness and overconfidence.

As Minor points out, this kind of hubris can lead one to take unnecessary chances, riding high on the belief that he or she is too smart to ever get caught engaging in questionable conduct, or is too valuable to be hit with any real consequences if that day does eventually come.

This paper also reiterates an uncomfortable truth unearthed in past studies: These folks are often high performers, which means that many employers grudgingly tolerate their antics rather than let them go. But few studies have attempted to quantify the actual cost of keeping them on, according to Minor.

And, while many managers may be more apt to look the other way when the offending employee is, say, putting up gaudy sales numbers, an organization literally can’t afford to ignore—and, in effect, reward—corrosive workers’ bad behavior any longer, he says.

“The worst thing to do is to not do anything, which happens a lot, unfortunately.”