CHAPTER 8
Sexually Offensive Behavior

Harassment refers to a wide spectrum of offensive behaviors. What constitutes inappropriate workplace conduct is often subject to debate because subtleties and innuendos can be difficult to prove, but one thing is clear: When sexually charged issues become pervasive in the workplace, a claim of sexual harassment may be sustained.

Furthermore, claims of harassment and discrimination, unlike other workplace situations, require that a company conduct an internal investigation. The standard expectation is that employers will intervene and remedy the situation in a timely manner after having completed a thorough investigation and reaching a reasonable conclusion. In fact, failure to take immediate corrective action after conducting a timely investigation, especially in cases of repeated harassment, could be viewed as evidence of a company’s “malice” and therefore could be the basis for an award of punitive damages.

Just as a reminder, there are two types of sexual harassment claims: (a) quid pro quo and (b) hostile work environment charges. Quid pro quo cases make up about 20 percent of case law and occur when the proverbial Hollywood “casting couch” scenario is in play: “Sleep with me if you want a part in the movie” is the paradigm used often to describe the quid pro quo scenario.

Hostile work environment charges, in comparison, make up roughly 80 percent of the claims that find their way into courtrooms across the nation. In cases of hostile work environment charges, physical sex need not come into play. Instead, a workplace charged with ongoing sexual innuendos or banter may make the work environment intolerable according to the plaintiff who is bringing charges against your company.

In addition, two conditions have to occur for a sexual harassment claim to be substantiated: First, the harassment must be (a) sexual or (b) gender-based in nature. Second, the conduct must be unwelcome. Here’s the catch, though: Employees can “consent” to behavior that they don’t necessarily “welcome,” and it’s a fairly low threshold to argue that the employee put up with the intolerable behavior for fear of retaliation or out of peer pressure not to say anything.

The key to this section, therefore, will lie in ridding your workplace of unnecessary exposure to these potentially lethal elements. Remembering that harassing behavior can be physical, verbal, visual, or auditory in nature, we’ll address tough conversations to ensure that your employees get the message regarding anything that could be construed as offensive. The goal is not rid the workplace of niceties like compliments and flatteries to the point where your managers are afraid of putting their socks on in the morning; instead, it is to sensitize workers as to how their behaviors and comments may be perceived. Once again, we’ll be using the term perception management as a tool to help get our point across.

Finally, because potentially harassing behavior is among the most serious of conduct infractions, it is often in the company’s best interests to respond formally to claims in writing. Remember that with conduct-(as opposed to performance-) related infractions, the company has a tremendous amount of discretion to accelerate through the progressive discipline process. In fact, a first offense may result in either immediate termination or a final written warning stating that “if you ever again engage in behavior that could be construed as offensive, demeaning, hostile, or that in any way makes a coworker feel diminished or less of a person, you will be immediately discharged for cause.”

This chapter will focus on offenses that do not rise to the level of immediate termination. For an example that does lead to summary dismissal, see Chapter 14. Otherwise, let’s work through some of the more common types of offenses that you’ll find out could very well border on substantiating a hostile work environment claim.

Scenario 47: Foul Language in the Workplace

Foul language comes in many forms and, as the saying goes, it’s sometimes not what you say but how you say it (and whom you say it to). For example, if an employee stubs his finger in the drawer and shouts, “Oh, f———!” that could be a disciplinary offense that results in a written warning but is arguably not terminable.

On the other hand, if your subordinate looks at you and shouts, “F———you!” then it’s pretty safe to assume that you’ve got a summary dismissal on your hands. After all, such egregious and insubordinate conduct is aimed at the supervisor personally and therefore allows you little room as an employer to reason, “Well, I’ll just give him a warning this time so that he doesn’t do that again.” If a company were to waive terminating an individual under such circumstances, it would be remiss in its responsibilities for two reasons: First, it would appear irresponsible for allowing such inappropriate conduct to potentially continue and for creating a record of its failure to act. Second, it could create a dangerous precedent for future occurrences of such gross insubordination and potentially harassing behavior. After all, if the company didn’t terminate under these circumstances, what would justify a termination for someone else in the future?

The Solution

When an individual takes pride in employing more colorful language than you’d like, and especially if a coworker puts you on notice that she’s no longer comfortable hearing that type of inappropriate banter in the workplace, respond to the offending employee this way:

Jim, I called this meeting with you in private in my office because we’ve got a situation that’s come up that I’ll need your help in solving. I know that up to now, you’ve been pretty loose with your language, and I know you tend to use colorful words to make others laugh. And while we all appreciate your sense of humor, we’ve been put on notice that some folks on the team feel like it’s getting out of hand. Whenever we’re put on notice as a company that language or behavior potentially offends anyone, we’ve got to notch things back a bit so that everyone feels comfortable again. I’ll need your help in fixing that perception problem that exists, and I’d like your commitment now that we won’t be hearing any expletives or inappropriate sayings from this point forward. Will you support me in that?

Okay, that’s a very reasonable opener and one that most people will be able to accommodate. What happens, however, if Jim tells you that he really can’t help himself? In fact, he’s not even aware of when he’s using foul language because it’s such an integral part of who he is. His family used that language from the time he was born, his friends used that kind of language when he was growing up, and, well, there’s really not too much he could do about it. Besides, we’re all friends in the group, aren’t we? Can’t we all agree to just keep things the same? What’s all the fuss about anyway?

In such cases of justifications and rationalizations, it becomes time to lay down the law a bit more sternly.

Jim, you’re not hearing me. This isn’t about you any longer—it’s about your coworkers and our company. When someone puts us on notice that they’re no longer comfortable with the curses and loose banter and jokes that arguably become pervasive in the workplace, there’s a whole new paradigm in play. At that point, we no longer have the discretion to laugh it off and ignore it. In fact, if we do, we could have a hostile work environment claim levied at us, and as you know, hostile work environment claims are a subset of sexual harassment, which in turn, fall under our company’s antidiscrimination policy.

In short, we’re putting you on notice that the language and behavior have to stop immediately. If you really feel you can’t accommodate our request, then you may be making an employment decision. In other words, if you can’t or won’t agree to stop at this point, you’ll either have to resign or be terminated for cause should this occur again.

I don’t like having this conversation with you because you’re an excellent worker and one of our most popular employees, but you’ve got to understand this and get it right: As much as we enjoy working with you, we can’t allow you to expose our company to a hostile work environment claim.

In that case, here’s what the record would look like: Employees inform company that they’re no longer comfortable with foul language and inappropriate jokes made by Jim Smith. Company does nothing to amend the employee’s behavior and allows the foul language to continue. And employees who made the complaint sue the company for failing to take reasonable action to fix the problem. Do you see the challenge we’re facing and why I need your help now?

And low and behold, once you couch the concrete legal concerns in such a straightforward manner, even the class clowns will take you seriously. If you need any additional fodder to convince Jim of the urgent need to change his behavior, you could include the following:

Oh, and Jim, there’s one more thing: I’m not saying this to threaten you, but it’s just that I want you to be fully educated on the matter. If the company were to be sued, you would also be named as an individual defendant in the lawsuit. In fact, in extreme cases where the company warns the employee and the employee refuses to change his ways, he may be considered to be acting “outside the course and scope of his employment.” And under those circumstances, the company’s legal team wouldn’t protect you. In short, you’d be on your own to find your own lawyer and pay the damages that arise from the claim.

We don’t pay you enough money to risk your home and your bank account for work-related lawsuits, so any time you find yourself slipping back into your old ways, be sure and stop by my office so that I can remind you about the risks you’re assuming when it comes to foul language in the workplace.

Now if he doesn’t take you seriously after that discussion and persists in his argument that this is all silly, put your concerns and expectations in written form, either as a written warning or letter of clarification (which doesn’t contain any consequence language stating that “failure to provide immediate and sustained improvement may result in further action, up to and including dismissal”). Seeing things in writing often escalates the sense of urgency and helps employees appreciate their significance all the more.

Scenario 48: E-Mail Misuse

Employee misuse of e-mail is a fairly common concern in corporate America. First of all, many employees see e-mail as a more casual rather than formal style of communication because it is so readily available and efficient. And it’s this casual understanding and assumption about e-mail that causes many problems in the workplace. Further complicating matters, many workers operate under the false assumption that personal e-mail messages are somehow protected from the company’s scrutiny.

This casual informality with e-mail often persuades users over time to lose some of their inhibitions and reservations. As a result, what should be formal corporate communications disseminated through the company’s electronic distribution system become expressions of uninhibited candor and thoughtlessness. It’s not difficult to imagine workers circulating off-color sexually explicit jokes or photos or making bigoted remarks.

Of course, what they fail to realize is that electronic mails cannot be destroyed and in fact become one of the key things that plaintiff attorneys look for in the legal discovery process to prove some sort of animus or prejudice against their client. Therefore, you’ll want to use this conversational opportunity to remind employees about the company’s expectations as well as pitfalls regarding appropriate usage of the company’s e-mail system.

The Solution

Let’s assume that one doctor at your hospital sends a fellow doctor an off-colored e-mail called “The Long-Tongued Toad.” Let’s also assume that the attachment that went along to describe the adventures of this particular toad was particularly offensive, especially to women. Finally, just for fun (not that this would ever happen!), let’s assume that when Doctor A intended to forward it to Doctor B, the e-mail “to” line prepopulated the name of some other doctor (we’ll call her Doctor C) elsewhere on campus who didn’t even know Doctors A or B. It’s safe to say that Doctor C was fairly upset when she received the e-mail, and she promptly called Doctor A’s supervisor, the chairman of the department, to voice her dissatisfaction.

The chairman then calls a meeting with Doctor A to review the call he just received from Doctor C (much to Doctor A’s chagrin), and the meeting sounded something like this:

Doctor A, I called this meeting with you to discuss your e-mail. Your e-mail account is working, correct? [Yes.] And what would you say the hospital’s e-mail is there for?

Doctor A astutely responds that the e-mail system is to send work-related messages to others at the hospital and in the general community. (Doctor A is clearly very smart!) The department chairman continues:

I agree with you then. The hospital’s e-mail was designed to distribute business-related correspondence electronically. Have you used it that way consistently, or have you veered off the golden path? [Uh, I’m not sure what you’re referring to.] Okay then, let me be clearer: Does the “Long-Tongued Toad” mean anything to you?

At this point, the chairman knows he’s got him: That’s why the chairman is the chairman. He continues to delicately probe to see if Doctor A will assume responsibility for the problem or continue to hang himself. Wisely, Doctor A cops to having sent an e-mail of this well-endowed toad to his friend, Doctor B, but he wonders out loud how the chairman would have known about it. The chairman continues:

I don’t think that Doctor B ever received it. That’s because I got an e-mail today from a Doctor C who was not very amused and who expressed extreme dissatisfaction with your lack of discretion and misuse of the hospital’s e-mail system. [Doctor A gulps and turns red.] Why don’t we review some of the basics about e-mail and sexual harassment claims to see if I could make this clearer for you for future reference?

First, let’s consider this a CLAM: a career-limiting move. You’ve alienated and isolated a doctor clear across campus who was offended by your e-mail and who felt it necessary to promptly notify me to ensure that she doesn’t receive any other e-mails like this one from anyone on my staff again. I feel it’s safe to say that she’ll remember your name even years from now, so you might want to cut a wide swatch around Doctor C if you ever run across her on campus.

Second, I shouldn’t have to tell you that nothing should be put in an e-mail that you wouldn’t be willing to write on stationary with company letterhead or make a headline of in the local newspaper. That’s because e-mails never go away—they’re always retrievable. As a matter of fact, they say that e-mail has become to civil law what DNA has become to criminal law. In other words, it’s always traceable back to its source. And even if you deleted it, or emptied out your computer’s trash bin, or even slipped into the server room and attempted to delete the information from the server itself, the meta-data would still be traceable and linked back to you. Computer forensics firms are always happy to help with that. However, of course, in that case you would cause an obstruction of justice, and that could carry punitive damages, so I know you’d never consider doing that.

Finally, even if this e-mail didn’t end up in the wrong in-box, think of the record you’ll have created. If Doctor C or anyone else on campus wanted to later make a claim that they were being harassed, they could simply retrieve that electronic record that you created with your e-mail and use it as evidence against the hospital.

Therefore, I’m going to assume that we’ll never have to have a conversation like this again because you now know how serious an infraction e-mail misuse could be. You also realize that the hospital has a well-defined policy regarding forwarding non-work-related e-mails to coworkers, especially if they have a sexual or otherwise offensive tone. And most important, you know that now that I’m aware of the matter and have placed you on notice of the hospital’s expectations, any future violations would be met with, let’s say, severe dissatisfaction and disappointment on my part. Are we clear, Doctor A? Good! Have a good day, and please clear out your in-box of any unrelated e-mails that might mistakenly be distributed by oversight.

Oh, one more thing before you leave. You might want to disable the “Auto Complete” function in your e-mail setup. This way your system won’t “predict” the target e-mail address as you type it in, which could save a lot of future embarrassment, if you get my drift.

Yes, I’ve chosen to employ a bit of a condescending yet friendly tone to this example, but the bullet points outlined here can be used in any situation and with any audience. This case probably didn’t lend itself to an outright written warning because even though the e-mail was off-color and a bit gross, it wasn’t overly sexual. In addition, Doctor A didn’t intend to forward it to Doctor C—that was done by oversight. Still, you made your point very clear, and there’s a strong likelihood that Doctor A will never risk making that mistake again—at least while he’s on your staff! And that’s as good a verbal intervention as any.

Scenario 49: Finding Pornography on an Employee’s Computer

Thanks to the Internet, pornography in the workplace has become a growing problem for many companies, especially for employees who have their own private offices. Many companies conduct workshops on sexual harassment, code of conduct, and management 101 training to ensure that all employees understand that they have no reasonable expectations of privacy when it comes to their desks, lockers, and data stored on the computer. That’s because company equipment belongs to the enterprise, not to the individual employee, and corporations know that it’s in their best interests to remind employees of that fact from time to time in various workshops.

The data security team within your company’s IT department may very well be the best resource for solving these challenging issues when they surface. Turning on a data filter will be all that’s necessary to track an employee’s whereabouts on the Internet whenever suspicion arises. And just remember that this is an offense that may result in immediate discharge, especially if child pornography is involved (which is unlawful and far more serious an issue than adult pornography).

The Solution

Let’s assume that a secretary notifies you that she suspects that her boss is looking at pornography in his office when behind closed doors. She suspects this because she walked in on him recently and saw him quickly and awkwardly trying to cover the screen and close the application, but she thought she briefly saw nudity of some sort.

Armed with this information, you meet with the data security team and ask them to turn on the filter that screens that individual’s computer and traces all Internet sites visited as well as the length of time spent on each. Within a few weeks you find that the individual is visiting websites that present infomercials on what would be considered light pornography products—not the heavy-hitting XXX material or anything related to child pornography—but the “college girls gone astray” types of video commercials that are tasteless and offensive but not necessarily hard core.

You then meet with human resources regarding the problem and learn that watching these types of online video commercials is not necessarily a terminable offense, but it’s certainly a “documentable” offense. In other words, according to your company policies and in line with past practices, a written warning is warranted to demonstrate that your company took the issue seriously and handled it in a timely manner. HR draws up the written warning, and your meeting with the employee may sound something like this:

Chester, I’ve called this meeting with you and asked Rose from human resources to be present because we’ve got a serious situation that we need to address with you immediately. As you know, your Internet connection and computer are property of the company, and from time to time, data security will review websites visited by our employees as well as monitor the length of time spent on those websites.

In this case, data security notified me that you’re visiting inappropriate sexual websites during the workday. Would you concede that that’s true? [Yes.]

I’m disappointed by your choice, Chester, and I’m also questioning how you have extra time during the day to spend surfing porn sites, but that’s a separate matter. For now, I want you to know that such behavior and conduct have to cease immediately. In addition, as is consistent with company policy and practice, we’re giving you a written warning stating that if you ever again engage in this type of activity on company time and premises using company equipment, you’ll be immediately terminated for cause.

There’s not much else to say here. However, I do want your verbal commitment right now that this problem will end today and that we’ll never have to have conversation like this again. Will you agree to that? [Yes.] Good, then here’s the written warning that human resources has prepared, and you could sign it and return it to me by the end of the week. Of course, you’re more than welcome to draft a rebuttal to the warning if you disagree with it. The warning and rebuttal, if you choose to write one, will be placed in your personnel file, and it will also become part of next year’s annual performance evaluation and merit increase review. Is there anything else you’d like to add before we conclude this meeting? [No. I’m sorry.]

You’ll notice that the tone of this meeting doesn’t have the usual niceties of other meetings outlined in this book—“I’ll need your help to fix this” or “You’ve got a perception problem on your hands.” Instead, it’s very factual and straightforward and said without a lot of emotion. That’s because once Chester admitted that he was indeed visiting those sites, there was very little else to discuss. There’s nothing to defend and there’s no other side of the story to consider. It’s just plain wrong. Make your message, therefore, short and firm, and be sure he understands the link to his performance and merit increase as well as the fact that the written warning will become part of his personnel record.

That should make him think twice before engaging in conduct like this again. Oh, and if he happens to forget and visits those websites again, the written warning will give you full discretion to terminate for a second offense. In essence, he’ll be firing himself for violating the reasonable terms that he’s agreed to, and that’s the cleanest record you could have on file.

Scenario 50: Bullying

Schoolyard bullying—the torment of one child by another—has long been a challenge for students and teachers alike, and it appears to be getting more and more attention in the workplace as well. Insecure adults may taunt and tease others in an exercise of power through humiliation, and it’s not a far stretch of the imagination to see how this workplace issue may be interpreted as a hostile work environment.

Any incident where a worker is abused, threatened, intimidated, teased, or ridiculed could be grouped under the category of intrusive and harassing behaviors, and such emotional and psychological violence should be taken very seriously in your organization. The aggression may be verbal, physical (as in blocking someone’s way), or visual (as in leering or “staring someone down”), although bullying as a category of inappropriate workplace conduct tends to be far more prevalent yet less covered by legislation than, for example, sexual harassment or racial discrimination. And that’s primarily because it can be difficult to prove at times as the destructive behavior can be subtle and easily denied.

Research shows that a bully is just as likely to be a man as a woman, although in the workplace, the bullying tends to come from bosses the majority of the time. And much like their schoolyard counterparts, adult bullies tend to be insecure people who are easily threatened by others. When they sense a nonconfrontational style in peers and subordinates who threaten them, they often turn their insecurity outward and launch attacks aimed at diminishing the self-worth of their intended targets.

The Solution

When a staff member complains to you that he feels that he’s being stripped of his dignity or otherwise publicly humiliated by his boss, you may well have a bullying situation on your hands. Despite the sports folklore of coaches who humiliate and browbeat student athletes to supposedly get the most out of them and to help them “be their best,” bullying in the workplace destroys morale for those who witness it and may expose your company to severe financial damages.

Of course, employees will often fear going directly to their department head or to human resources to complain about their immediate supervisor for fear of retaliation. It becomes all the more important that you proactively address any incidents as soon as they surface, even if no formal complaints are made from the reprimanded staff member:

Butch, I called this meeting with you this afternoon because I witnessed a staff meeting that you had with your team this morning and was very concerned about how you apparently handled it. I saw you engage in something I would call a public humiliation session with Ron, and from what I could see, your attacks were intended to strip him of his dignity in front of the rest of the group. Can you picture the meeting and specifically what I’m talking about? (Pause.)

At this point, the supervisor may launch into an all-out defense to justify his actions: “Ron did the stupidest thing I’ve ever seen. He called a client on the phone and said….” Your best response is stop him right there.

Butch, this isn’t about the merits of your argument, and I certainly don’t need a justification of any sort for your behavior. Whatever Ron did or didn’t do is not what we’re here about. We’re here about you and the behavior that you demonstrated in that staff meeting earlier today.

Let me be clear. Bullying your subordinates for any reason and under any circumstance violates company policy. More significantly, it makes me lose faith in your ability to lead and your ultimate suitability for the position you’re in.

Here’s how I see it and how I feel you should see it from now on: Stripping people of their dignity or humiliating them publicly is no longer an option for you. Simply take that tool out of your management toolbox and throw it away.

If I had to describe your behavior today, I would say that you humiliated, overruled, ignored, and isolated your subordinate in front of his peers. That’s bad for morale, needless to say, and creates a culture based on fear. As a company, we pay for that over time in lost efficiency, turnover, absenteeism, and unnecessary separation packages and lawsuits. In short, this morning you created a tremendous liability for our company, both in terms of stress-related health and safety exposure as well as the costs associated with unnecessary turnover. I’m here to make sure that you don’t do that again. Am I clear? [Yes.]

Good. I’m choosing not to put this in writing in the form of a written warning at this point, Butch. Just know that if I ever again have to address this with you, my recommendation to human resources will be that they pursue the matter as aggressively as possible, including a consideration of immediate discharge. Thank you very much.

Okay, you threw the book at him, yet by not documenting your meeting in the form of a written warning, you let him off fairly easily. That’s certainly your right. Just be sure and keep a close tab on Butch and his staff to make sure that no further flare-ups arise. In addition, jot down the highlights of this conversation for yourself as well as the date, place, and time so that you could refer back to it should you ever need to. Oh, and don’t forget to give human resources a heads-up just so they’re aware of the problem.

However, if you feel strongly that another such incident should indeed result in immediate termination, you’re best off documenting your findings now in a formal written warning. That’s because, depending on Butch’s tenure with the company, age, race, and other protected categories, you may not have carte blanche to terminate at the next occurrence. Instead, you may need to then document the first formal written warning, making mention of your conversation with him today, including the nature of today’s incident, what you discussed with him in terms of expectations, and what you outlined in terms of consequences for future transgressions. So keep good notes of your meeting today in any case!

Scenario 51: Discriminatory Comments or Racial Epithets

Discriminatory comments in the workplace can take on many forms:

• Telling sexually explicit jokes

• Persistently asking a coworker to go on a date, when the coworker is clearly uninterested in the proposition

• Asking questions about a person’s sexual practices

• Subjecting a male worker to taunts disparaging his masculinity (gender stereotyping)

• Name-calling or belittling a coworker by using degrading terms to describe his or her race or religion

What becomes important is that companies publish and disseminate zero-tolerance policies regarding such workplace intrusions as well as meaningful training programs and attentive follow-up when someone makes a complaint. Likewise, it’s critical that you create the appropriate record when someone goes on file to make a complaint, including your efforts at conducting a thorough and reasonable investigation as well as a timely action plan. Finally, remember that you’re responsible for following up with the individual who initiated the complaint to let that person know how your company handled the matter.

The Solution

Let’s take the case of name-calling. Suppose an employee from India meets with you, his department head, to go on record that his coworkers refer to him as “camel jockey” and taunt him with phrases relating to “riding camels” and “red dots” on the forehead. The employee may have taken their rude and condescending comments in stride up to now, choosing to interpret them as off-color jokes and teasing. It turns out that these taunting remarks have been going on for a very long time by the time you heard about them.

In cases like this one, which smacks of discrimination and offensiveness, it is best to respond in writing in the form of an individual written warning. Let’s assume, though, that this has become a group habit, where all employees engage in banter relating to each others’ heritage: The Italian, Polish, Hispanic, and Chinese workers all call each other by offensive names, and you also learn that the Indian employee has actively engaged in such banter as well (i.e., dishing it out but no longer willing to take it).

Yes, you could certainly write up the entire group of individuals, but you reason that it’s best to rid the workplace of such malapropisms by placing the entire team on verbal notice first. Your group discussion might sound like this:

Everyone, I’ve called this staff meeting today for one reason: It’s been brought to my attention that you all regularly engage in potentially offensive banter, referring to each other by derogatory names and comments relating to your race and ethnicity. I’m not here to name names, but I can tell you that as of right now, June 20, this behavior must come to an end.

This isn’t a “please be more considerate of your coworkers” type of speech. I’ve discussed this with human resources, and we seriously considered giving each of you a formal written warning to impress upon you the seriousness of the offense. In addition, we were going to add consequence language at the end of the warning that read: “If you ever engage in behavior or conduct that could be construed or interpreted as discriminatory, harassing, prejudicial, or otherwise biased, you would be immediately terminated for cause.”

However, in fairness, it seems like you’ve all been engaging in this type of behavior to some degree, and I didn’t feel it was appropriate to issue a written warning seeing that this is the first time that I’m addressing the matter with you. That being said, you need to understand that today’s date and the time of this meeting are written down in a little black book in my office. Everyone in attendance is noted as well.

Folks, understand what I’m telling you: If any of these comments continue, you could potentially be placing this company at risk, and I have no intention of allowing that to happen. If any one of you engages in this type of banter or these types of crude and dehumanizing remarks, I’ll consider it the same as your tendering your resignation. I’ll ask human resources for permission at that point to terminate your employment for cause.

From this point forward, it’s a zero-tolerance policy when it comes to inappropriate, derogatory, defamatory, insulting, offensive, disparaging, menacing, or threatening remarks relating to one’s heritage, language, religion, or anything else along those lines. Do I make myself clear? [Yes.] Good. Now is there anyone in this room who can’t meet these expectations or is unclear about the new rules or the consequences for breaking these rules? [No.]

Good. I believe this meeting has served its purpose, and I’ll write in my notes that everyone present is on board and fully willing to comply with this new directive. Please be sure that we never have to have a group or, heaven forbid, one-on-one meeting about this again. Thank you very much.

Okay, you’ve thrown the proverbial book at them, but that’s a far better alternative for them than issuing individual written warnings, which is certainly within your rights under the circumstances. In exchange for sparing them formal written warnings, which could impact their annual performance appraisal score and subsequent merit increase, you chose to administer a stern verbal warning instead. That’s actually very benevolent of you, so be sure to let your team know that your goodwill and largesse regarding this issue are now spent.

Scenario 52: Leering

It’s great to have a policy outlining your company’s expectations and consequences regarding harassing behaviors such as discriminatory banter, e-mail and Internet misuse, and bullying. However, these are all concrete, visible phenomena that can be seen and heard in the workplace or can otherwise be proven via the presence of a witness.

In reality, however, certain behaviors are difficult to pin down because they fall below the radar screen. As such, they are difficult to prove and can be easily denied. One such example is leering—staring at a coworker in a lewd, lustful, and sexually suggestive way. The person being accused of leering can easily deny that any sexually suggestive looks or “faces” were made at the alleged victim. In addition, the perpetrator can easily say that the victim is being too touchy or overly sensitive to something that’s clearly being misinterpreted.

How do you address something so easily denied and not necessarily witnessed? As in many of our other confrontational conversations outlined in this book, the answer will lie in the use of the word perception.

The Solution

Let’s look at a case that you’ll probably face in your career at some point: Bill, one of your staff members, is a short male with squinty eyes who may have a bit of a visual problem. When Bill speaks with women in the company who may be taller than him or who tend to wear lower-cut dresses and blouses, he appears to “speak to their breasts.” Entire conversations can be launched between Bill and “the girls,” much to the chagrin of the women who are insulted that he is not looking at them eye to eye but is instead staring at their breasts.

Here’s what your discussion might sound like:

Bill, I’ve called you into this meeting with me because three of your female coworkers have made a complaint about you. They met with me this morning around 9:30 to tell me that you “spoke to their breasts” rather than to them while riding up in the elevator this morning.

Here’s what they told me: “Our eyes are up here, yet he stares at our chest while speaking to us. He’s done this before to all three of us, and this morning’s elevator ride was the straw that broke the camel’s back because his actions were so flagrant.”

Now understand something, Bill—you’re not in trouble. I’m not even sure if you’re aware that this is how you’re coming across. However, you’ve got to understand that when employees put me on notice that they’re uncomfortable with a coworker’s behavior, I have to address it immediately. Would you agree that that’s the right thing to do? [Yes.]

Okay, let me ask you this, Bill. In all fairness, is it possible in your opinion that their complaints are accurate? I mean, even if you’re not doing it on purpose, could there be some legitimacy to their claims? [No. I’m sorry for all this, but I have no idea what they’re talking about.]

Fair enough. Bill, there’s a difference between perception and reality: Reality is what you know to be true or what you do purposely; perception is what others see, regardless of your intentions. As they say, perception is in the eye of the beholder, and even if you don’t realize it, you may be creating a perception that’s offending others.

From this point forward, I want you to think of it this way: You have to hold yourself accountable for your own perception management. In other words, you have to become sensitive to how you’re coming across to others. When you speak with someone else, especially a woman, make sure you look at them eye to eye, even if they’re much taller than you.

Likewise, don’t stare at anyone’s chest under any circumstances—men or women—so that no one could accuse you of inappropriate behavior. Does that make sense? [Yes.]

Finally, Bill, like I said, I have no reason to doubt your sincerity. However, I also have to take other people’s complaints seriously. As a result, I need a commitment from you right now that you’ll be very conscious of the perception you’re creating at all times and, more important, that after today we’ll never have to have a conversation like this again. Do I have your commitment, Bill? [Yes.] Great. Thank you for coming in and helping me solve this little challenge of ours.

Again, there’s no need to accuse someone of something that’s so difficult to prove in the first place. The key, instead, lies in making them aware that you’re aware. Under most circumstances, that will be enough to do the trick. If they really weren’t aware of how they were coming across, they are now. And if they thought they could get away with overtly offensive behavior by simply denying it, they now know that you’re on to them. Any future complaints could be handled via a formal written warning, with consequence language that reads as follows:

Despite our specific discussion on [DATE] regarding complaints from female coworkers that you “leered” at their breasts when you spoke with them, and despite your commitment at the time to hold yourself accountable for your own perception management, new complaints have recently arisen complaining of the same inappropriate workplace behavior. Therefore, this written warning serves to establish that if you ever again engage in conduct that could be described as leering or if you otherwise demonstrate offensive conduct in the workplace, you will be immediately discharged for cause. In addition, understand that this is your last chance: Your position is now in serious jeopardy of being lost. As a result, you must make immediate and sustained improvements in your conduct in order to remain employed.

Oh, what if Bill asks if he should apologize to the three women involved who rode up on the elevator with him that morning? That’s ultimately his call, but in cases like this, those who complain simply want the behavior to stop. They don’t particularly want conversation and apologies. You might want to advise Bill not to worry about apologizing and to simply refocus his energies on mastering the perceptions he creates. You could then let the three female coworkers know of Bill’s request to apologize along with your recommendation that he simply prove his regret via his actions rather than words. You might then want to apologize on his and the company’s behalf. Of course, you’ll want to remind them to see you immediately if any staring or leering problems occur again in the future.

Scenario 53: Sexual Harassment Findings (Reverse Harassment)

Sexual harassment training is important for so many reasons, especially in terms of mitigating damages that your company may face if an individual supervisor acts outside the course and scope of his employment. Although companies are generally responsible for the acts of their employees through legal concepts known as “strict liability” and “vicarious liability,” companies, as corporate citizens, can substantially mitigate damages if they can show that they acted reasonably and responsibly by training their managers and supervisors in this critical area of the law.

However, managers who attend sexual harassment workshops usually complain that such training depersonalizes the workplace and creates a sterile work environment where people aren’t free to be themselves and should be afraid of complimenting each other for fear of a lawsuit. In reality, supervisors need to understand how sexual harassment charges may be levied against them as individuals, separate and apart from the company, if they are deemed to be acting outside the course and scope of their employment.

It’s not enough, however, for managers to look at this potential land-mine face forward (i.e., for straightforward claims that can be easily categorized and witnessed). Sexual harassment claims often find their way in the backdoor, meaning that employees sometimes make sexual harassment claims before they sense they are about to be disciplined or terminated. In other cases, plaintiff attorneys representing already terminated workers look to expand a wrongful termination claim into a “triple cocktail,” including not only wrongful termination but also harassment and discrimination.

It’s at times like these when threatened staffers are looking to make a preemptive strike to save their jobs or when plaintiff attorneys are looking for fodder to substantiate claims that include punitive damages that sexual harassment poses the greatest threat.

The Solution

Let’s assume that a female supervisor (Charlotte) complains that she is being harassed by her male department head (Chuck). In conducting your investigation, however, you find that Charlotte is equally if not more responsible for the sexually charged work environment. Specifically, although she complains that Chuck has engaged in inappropriate discussions regarding her personal life, including bantering about favorite (sexual) positions and other exploits, she has equally if not more often initiated similar inappropriate banter.

In addition, after conducting your own internal investigation, you learn that most staff members believe that she was looking to pursue a more personal relationship with Chuck. Although Chuck is guilty for engaging in the inappropriate discussions, most staffers feel that she was teasing him and showing him attention in an inappropriate manner. In addition, your staffers inform you that she’s been hitting on Chuck for a long time, even though she knows he’s married.

Under such circumstances, your conversation with Charlotte might sound like this:

Charlotte, after hearing of your complaint against Chuck for inappropriate workplace discussions of a personal and sexual nature, we conducted our own investigation. Chuck admitted to engaging in appropriate discussions and one-off comments with you, and we are taking appropriate action with him in light of our findings.

You’re not technically under any obligation to disclose the nature of the appropriate action that your company is taking with Chuck. For example, you’re not obligated to state that he’s being given a written warning, a final written warning, or other such disciplinary measure. (Of course, if Chuck is going to be terminated, it would make logical sense to share that now since the employee will find that out shortly.) However, if you feel the situation warrants it, you can certainly share this level of detail with the complaining employee. Just check with human resources or qualified legal counsel first.

During the course of the investigation, however, we found two things: First, that as a supervisor, you initiated, encouraged, and participated in conversations of a sexually explicit nature with your own subordinates. Second, that a number of employees reported that it appeared to them that you initiated much of the inappropriate sexual banter with Chuck and that, more often than not, he responded to your initial promptings.

Along those lines, Charlotte, it appeared to those whom we spoke with that you were being a tease, showing him attention inappropriately and flirting with him, and are now turning it all around to blame him for the sexually charged environment that exists.

Therefore, I’m going on record with you to confirm two things: First, as a company, we’re open to investigating and correcting any and all legitimate claims of harassment that you feel may exist in the workplace. Second, however, is that we can’t overlook the evidence that you appear to be responsible for unacceptable conduct as well. As a result, you’ll be receiving a written warning for inappropriate conduct in the workplace.

Since you’re giving Charlotte a written warning, be sure and give Chuck either a written or final written warning for this same incident as well. You won’t want a record that shows that you only disciplined the subordinate who originally lodged the complaint because that may smack of retaliation.

The warning will state that if you ever again engage in this type of banter with your staff members, your supervisor, or anyone else with whom you come into contact throughout your workday, including clients and vendors, you’ll be immediately dismissed.

In this case, if the staff members point to Charlotte’s role as the leader in the problematic behavior, you’re on safe ground to discipline her as well as Chuck. This also protects your company should she again levy a complaint of sexual harassment in the future. Remember, without a crystal ball, you can’t tell who’s telling the whole truth. In fact, “truth” itself is relative and is often in the eyes of the beholder. Therefore, simply let your investigation trail be your guide without judging the matter yourself. Chuck handled things inappropriately, and he’s now on formal written notice. Charlotte obviously also handled matters inappropriately, and she’s now in the same predicament as Chuck.

Could she make a claim that this was handled unfairly and in a retaliatory fashion for having originally raised the complaint? Of course she could, but you, the objective third-party investigator of the event, simply relied on your staff members as witnesses and reasonably followed their lead. That’s an excellent record to have down in writing, and it will provide your company with significant downside protection should Charlotte ever again make a preemptive strike in order to set the stage for a future claim of retaliation.