Sexual Harassment

By Mel Rappleyea, SPHR, CSP

“I like the way you eat Ice Cream” joked Jason. Allison just glared at Jason as she walked over to the dock at Baltimore’s beautiful Inner Harbor.  Jason was a 63 year old man who played Santa Claus for various Boy & Girls Clubs and at the Salvation Army. He was short and round with a white beard and a forever smile on his face.  He had worked for twenty years as the Manager of the Ice Cream Stand in the Inner harbor. He was extroverted, positive, loud and people loved him. Jason was a hugger. He supervised mostly teenagers. When the teenage boys and girls got off shift, he would hug them and say “Great days’ work kid”. Most of the kids loved him as did the customers.

Allison was 16. This was her first job. Allison was an extremely pretty girl. Her mother (Sally) was a very successful lawyer in Annapolis.

One day Allison’s mother hears Allison and her friends laughing .”Whats so funny girls?” Sally asked laughing herself. “Oh, we are just talking about creepy old pervert Jason “Allison shot back. So Sally questions her. This story comes out. Jason told her “ I like the way you lick Ice Cream” and that Jason was always coping a feel by hugging them when their shift ended and that Jason was always looking at them weird. Sally’s next call is to the General Counsel of the corporate headquarters. Jason is put on administrative leave because the law dictates the separation of parties involved.

So long story, somewhat short. Mediation failed and its off to court.

Taken from the EEOC guide to  Sexual Harassment.

Sexual Harassment

It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Back to Jason and Allison. As you can see from 4th paragraph “the law doesn’t prohibit offhand remarks” but Sally's case was that Allison was a minor and the continued hugging (switched to touching by Sally) .

So the question was asked to a very confused Jerry “ Why did you say, I like the way you lick Ice Cream ?” Jason stated that he never said licked, he said eat and the reason was because she would bite off the bottom of the sugar cone then eat the top. The reason he said something to her was to get her to open up. She was snobbish and didn’t really show personality on a job that required being personable. He thought she may just be shy or intimidated since it was her first job. A large group of current and past workers testified that Jason was a good guy. They never saw or were victim to any inappropriate behavior. Current employees made comments that Allison acted like she was better than them and offended by everything. One witness stated that the reason Jason stared at Allison is because the flap on the front of the uniform had to be buttoned up. Allison found it restrictive and Jason would always tell her to button her top. Now enter Sally “What gives you the right to consistently invade these young people’s private space and touch them (hug)? Do you enjoy looking at young underage girl’s chest and then tell them to button up? It went on that line of questioning. I won’t tell you the outcome (you can email me for that) but it wasn’t good. Jason was removed from the workplace and given another assignment. His wife divorced him shortly after and he was told he could no longer play Santa. Two years later that happy smiling man I knew committed suicide. True story.Names and place were changed.

I have spent my life in HR . My degrees are in Human Resources. I taught SPHR and CSP certification for SHRM at Duke University. Over twenty years I have done literally hundreds of harassment investigations. Step 1 separate the parties involved. 2 tell them not to talk about it with each other or other employees, vendors and so on.  3 Do a quick and through investigation.4 document and have witness SIGN their statements 5. Make a decision on further steps and get back to the parties involved..I shorten it, but that is the basic .

There are basically three types of harassment:

1)     It really happened

2)     It never happened

3)     No one saw it happen

You hear the term “He said, she said” a lot in an investigation.

Protecting yourself

If you don’t glean anything from this article but one thing, let it be this................

We now live in a world where people are offended by anything and everything!

Examine what you say before you say it. Be very careful with jokes.

My Tips:

1)    NEVER DATE OR HAVE A RELATIONSHIP WITH ANOTHER EMPLOYEE

2)    TRY TO AVOID GOING TO LUNCH WITH JUST ONE PERSON AND IF YOU DO TAKE SEPARATE CARS

3)    KEEP A LOG. TIMES YOU DID THINGS. WHERE YOU WERE

4)    BE AWARE OF WHAT YOU ARE LOOKING AT OR PRECEIVED TO BE LOOKING AT (ELEVATOR EYES)

5)    SHAKE HANDS,DON’T HUG

6)    AVOID GOSSIP

7)    BE COGNIZANT OF PEOPLES PERSONAL SPACE

8)    TEMPER THE JOKES

9)    USE COMMON SENSE

Of the hundreds of harassment investigations I have done a good majority can be summed up this way in a, See Dick Run kids book fashion.

• ·       See Kelly and Don meet at work
• ·       See Kelly and Don date
• ·       See Kelly and Don now have interment relationship
• ·       See Kelly find Don’s emails to Tiffany in Accounting
• ·       See Kelly confront Tiffany in Accounting
• ·       See Kelly and Don have a very messy breakup
• ·       See Don date Tiffany
• ·       See Kelly go to HR and file harassment complaint against Don
• ·       See Don have to go over his relationship in excruciating details to a mediator, lawyer or Judge

Today’s best friend and confidant can be tomorrow’s worst enemy and repeater of confidential knowledge.

I am not saying true harassment cannot happen between former friends . The odds are strongly against you. It is not a wise move. Go on Match.com or Fish in the Sea to find dates. Office romances are toxic.

I had a young Nurse come to my HR Friend Ted once and say she thought one of the Medical Assistants was having an affair with a married Doctor. Ted met with the Doctor and he fessed up. He was seeing the Nurse but broke it off. Ted asked have you been taking the MA to lunch, just the two of you? He said yes ,but they met the rest of the staff at Chili’s Restaurant. Ted strongly suggested that he stop that practice. So of course he didn’t listen. His wife found something in the car very incriminating and came in the office to very loudly confront him in front of patients and staff. Doctor breaks it off with MA. Both MA and Nurse collaborate to file harassment charges. Complication arises after MA is terminated for poor performance based on Doctors feedback. At Mediation the MA goes into detail. Times, dates ,emails, texts and pictures proving her claim. The married Doctor tries to tell the mediator it was consensual. Mediator doesn’t buy it. Winner: Nurse and MA.

I have given numerous seminars on harassment and I am still amazed at how common sense flys out the window.

The story of the enthusiastic Marketing VP

A very handsome Marketing VP (Chris) of a cutting edge company had a staff of 7 people. 5 men and 2 women. He was loud, obnoxious by any standard and said some things off the cuff that would make a sailor blush.

One day Chris came out of his office yelling at the top of his lungs “We are going to rock out with our Co*# out !

Natalie called Ted in HR. Her statement was that this kind of stuff (witnessed by most of the office) was common place. She contended that marketing meetings were like frat parties. Beer , talking in constant sexual innuendo. When Chris was interviewed he demanded to see Natalie. Screaming “this is the problem with bitches working in a creative environment” he was not helping his case. Ted asked the staff if Natalie ever complained in the meetings. The staff comments were she would blush a lot and say “Okay Chris,lets move on”. Natalies husband came in saying that she had to see a counselor because she was so scared of losing her job if she spoke out, that it had given her shingles and other stress side effects. Chris was sent to sensitivity training and eventually was terminated Natalie resigned.

My story

My wife had just had our son.

I had a large HR staff spread out across the country. Generalists, Trainers, Benefit Admins, Recruiters and so on.

I had the Manager of a local Temp company beg me for a job in my HR group. When I ran into (let’s call her Michelle ) Michelle at Job Fairs, Community events and SHRM meetings she always had a copy of her resume to give me. Michele was very striking looking in fact she looked like my wife’s twin. She had a degree in HR but her only experience was at a temp agency. I had an opening at one of the plants for a HR Assistant. That plant had a HR Manager, two HR Assistants, Trainer  and a Payroll/Benefits clerk (Nancy 28 years with the company). It was explained to Michelle (in writing) that this was a 24/7 365 day a year 3 shift operation. HR was required to rotate on all three shifts. At least one HR rep on each shift. To be truthful most of the, lets call it weird stuff, happened on 3d shift. Also explained (in Writing) that HR had a presence on each shift and that Holidays were done by Seniority. Meaning, if she took Thanksgiving off she would probably need to be at the plant on Christmas. Michelle agreed in writing. The HR Manager communicated that she was doing very well but that Michelle was complaining so many of the men at the facility were asking her out.

Skip forward a month and we are at our National Conference in Richmond, Virginia. The HR group had flown in the night before, as we had a big part in the meeting. We met that night at the hotel we were all staying at in the Hotel Restaurant/Sports Bar. The team had not met Michele yet (we had low turn,so it was a big deal when we got a new team member) So I asked the clerk (who I swear looked just like Pee Wee Herman, bow tie and everything) if Michelle had checked in yet? He said yes, hours ago, I will ring her room. So I tell her “Hey Michelle , the HR group is meeting down here, did you get the memo?” She says I will be right down and never shows up. At our meeting Michelle’s HR Manager announces her husband has been stationed in Germany. So the group sheds tears that she is leaving and begin to congratulate Michelles counterpart Bill who has been at the plant 6 years and is assumed to have the inside track because employees need to be with the company for one year before you can apply for Internal Job Opportunities. A few days later Michelle wants to meet. She is upset that Nancy (Payroll/Benefits) wants Christmas off and Bill has already worked Thanksgiving so it is her turn to do 1st shift on Christmas Day. The policy (she signed) is explained to her. Then she becomes upset that she cannot apply for the Managers job. The policy (she signed) is explained to her. Christmas day comes and I get a call that Michelle came in for less than thirty minutes and left sick. So I had to cover the shift. As the next week progressed the HR Manager said she had put Michelle on final warning for not helping with Bills transition.

Here it comes.

The Chairman of the Board comes to me and says Michelle has accused me of harassment.

The claim was I called her to come downstairs in the Hotel and join me for drinks in Richmond. That I had made her uncomfortable in a meeting on November 3d by touching her leg during a video being shown on Franklin Planners. That I had told her she could get a promotion to HR Manager on November 15 at between 10am and 12pm if she did certain things for me. That during her review I made inappropriate remarks behind closed doors.

“And the truth shall set you free”:

Lie one: In a statement the Clerk (Pee Wee Herman) stated he stood by me during the duration of the call because he needed the house phone back and that I asked Michelle to join the group (made up of mostly women and two men) the rest of the HR department also issues statements that she missed the meeting and that two of the women in HR also called her room to ask when she was coming down because they were doing a presentation together.

Lie two: November 3. The Film taken from the training room cameras showed that I was standing up the whole time holding the remote to the television at the left front of the room as Michelle was in the very back of the right of the room with Nancy on her left and the wall to her right. At no time do I move to the back or her to the front.

Lie Three: Quid Pro Quo on November 15. She was in The Baltimore Plant that day. Records (Hotel receipts, flight info check in sheet at plant) shows I was at the Lancaster, California plant that day. Also we could not have discussed a promotion on the 15th since the HR Manager did not tell us of her impending exit till the 20th.

Lie Four: The Review was done by the HR Manager. If I do a formal counseling or termination I always have a witness. Her review was poor, so counseling was issued at the time.

The other shoe drops

The Ombudsman had Michelle’s computer pulled. In the computers trash not emptied were emails back in forth from the new Manager of the Temp company Michelle had left . The emails by Michelle were complaining she hated the smell of the plant, the people were gross, hated the hours and it wasn’t  an easy job in fact it was very demanding. Her replacement then sent a number of emails about using harassment claims to get her way. Her Assistant stated “ I did this at XYZ , Sexual harassment claims always scare the devil out of companies. They always assume the person accused did it, they get mad that they have to spend time and money on it, it kills morale at the plant so they just want it to go away …fast !!! Also they will probably fire him and you will be untouchable, that’s what he gets for making you work the holidays!!"

When the Ombudsman met with the board ,Michelle and myself ( A big no no, meet individually) and presented all these finding to her she broke down crying. “I just wanted the damn day off” she cried “Its not fair” . She quit on the spot . The Board apologized to me for the inconvenience.

Its people like Michelle that make it very hard for those who are truly harassed.

Don’t ever think, well I will never be accused of harassment.

It will make you upset, it takes away your focus, it is a terrible thing to be wrongly accused.

Again follow these simple guidelines

1)    NEVER DATE OR HAVE A RELATIONSHIP WITH ANOTHER EMPLOYEE  

It NEVER leads to anything positive

2)    TRY TO AVOID GOING TO LUNCH WITH JUST ONE PERSON AND IF YOU DO TAKE SEPARATE CARS

You may say that is impossible in my line of work. Meet the person at the restaurant

3) KEEP A LOG. TIMES YOU DID THINGS. WHERE YOU WERE

Just write down in your daily planner

4)    BE AWARE OF WHAT YOU ARE LOOKING AT OR PRECEIVED TO BE LOOKING AT (ELEVATOR EYES)

It makes people extremely uncomfortable and the number one thing with a bullet I get told by the accuser during the investigation

5)    SHAKE HANDS,DON’T HUG

Let them hug you if they must, but get in the habit of just shaking hands

6)    AVOID GOSSIP

It will get spun. Just stay away from it. You don’t want to hear someone say “Well I hear (insert your name) say..blah,blah,blah….

7)    BE COGNIZANT OF PEOPLES PERSONAL SPACE

Some people like to do this as a form of intimidation or you may just have a thing about getting close to the person you are talking to. Give people space.

8)    TEMPER THE JOKES

As I stated we live in a world where everyone is super sensitive and offended by everything.

9)    USE COMMON SENSE