We Need to Talk About Gray Areas When Addressing Sexual Harassment #YCDEthics

This blog is part of the You Can't Delegate Ethics campaign. The campaign posits that systemic change on the issue of sexual harassment will occur only when good people in power take responsibility for the issue and create workplaces that do not tolerate it.

In the “You Can’t Delegate Ethics” discussion, we need to start illuminating the gray areas on sexual harassment if we ever hope to drive meaningful change during the times when the issue is black and white. We need to set clear boundaries when possible, and embed guiding core values everywhere else.

even though these gray areas may not in fact be illegal, they can lead to uncomfortable if not toxic working dynamics

Although most people can agree on what clearly violates the law or company policy, reasonable people can disagree on the gray areas. This general notion has shown up most recently in the debate surrounding an allegation against actor Aziz Ansari. Similarly, actress Catherine Deneuve and more than 100 French women stirred controversy with a letter arguing that the current climate punishes men for nothing more than “touching a knee.” Deneuve later apologized.

Almost by definition, gray areas lead to confusion. But when it comes to sexual harassment in the workplace, even though these gray areas may not in fact be illegal, they can lead to uncomfortable if not toxic working dynamics. Gray areas embolden permissive cultures that can allow bad behavior to fester long enough to lower morale, lead to employee attrition, and eventually warrant legal action.

Frequency & Severity Add Color to Gray Areas

Actions viewed as isolated incidents can turn into “he said, she said.” That’s not to say one-off cases of sexual harassment do not occur, but systemic change is best aimed at the rule rather than the exception. To do this, we need to add color to gray areas by assessing frequency and severity. The EEOC provides the federal definition of sexual harassment, which states harassment has to be “so frequent or severe that it creates a hostile or offensive work environment or when results in an adverse employment decision (such as the victim being fired or demoted).”

severity alone is hard to gauge for something that could be seen as both legal and subjective. Frequency, though, changes things

Even if the conduct offends the recipient, the standard is based on what a reasonable person would think. So how do we determine what a “reasonable person” would find offensive? For instance, say one employee tells another, “You look really nice today.” All things equal, this will most likely be interpreted as a common pleasantry. Now, if the employee says, “You look realllllly nice today,” and accompanies the comment with some leering, we’re still not necessarily in the arena of unlawful harassment, even though the recipient of the “compliment” may feel uncomfortable. This conduct could, however, violate company policy. One inappropriate comment would not likely amount to legal trouble for an organization or an employee. Even the second example is somewhat subjective. In other words, severity alone is hard to gauge for something that could be seen as both legal and subjective.

Frequency, though, changes things. A series of incidents from either category above might more easily be viewed as possibly meeting the criteria that a reasonable person would find unworkable. And that can open up organizations to legal problems, and especially permissive culture problems.

These matters are further complicated by some societal and workplace trends. We currently have members of five generations in the workforce, and a Millennial’s perspective on what’s appropriate might be wildly different than a Baby Boomer’s. Social media and personal device proliferation have also changed attitudes when it comes to what’s appropriate to talk about. And even the popularity of open-office plans can make inappropriate comments echo beyond office doors. This means that two people having a conversation may offend a third person, who is not part of the discussion, but who nonetheless objects to its content.

It May Be Gray, but It Can’t Be Delegated

C-suites and members of boards need to be highly involved in addressing sexual harassment and eliminating the toxicity of its gray areas. Both groups need the same level of training, if not more, than expected from their employees. They also need heightened exposure to organizational policies and procedures on the issue.

Specifically, C-suite members need training on exactly what employees will encounter with co-workers, clients or customers (e.g., what can happen on business trips, office parties or other events where employees may be more social or alcohol may be served). Zero-tolerance policies and practices need to ensure zero-tolerance for retaliation as well. Board members need to understand how and when to ask the right questions, and compliance representatives should regularly update the board on action items to address corporate culture, and specifically sexual harassment. In addition, HR executives should examine compensation, retention and promotion practices to ensure that they reward the right behavior and do not inadvertently incentivize or ignore the wrong behavior. For example, promoting the serial harasser while demoting or moving the complainant sends the message that the company does not take corroborated allegations seriously.

Address Your Workplace & Your Employees

Leadership needs to be fully part of the solution by taking the sexual harassment trainings, reading the policies and understanding the full scope of the issue at their workplace. This is how the importance of those activities will make its way through the rest of the organization. It will also give leaders the insights needed to tackle gray areas with two key tools: compliance training and the organization’s code of conduct.

In both arenas, leadership needs to make sure they take their own unique corporate cultures into consideration. Too often, organizations simply copy and paste their codes without regard to industry, demographics of the employee base, core values, or mission statement. Failing to tailor the code to the company’s specific needs tells employees they can copy and paste their behaviors – “I act like this outside of work, so I’ll act the same way at work.” Employees may believe that the company is simply checking the box by posting a mandatory policy.

Companies also need to conduct highly case-sensitive training that account for which concepts are presented, how they are presented, and to whom they are presented. 

Companies also need to conduct highly case-sensitive training that account for which concepts are presented, how they are presented, and to whom they are presented. A small technology company staffed by a group of computer programmers in their 20s might roll their eyes at content designed for an organization of accountants in their 50s. Similarly, a company staffed primarily by truck drivers may not get much value by watching training videos clearly created with an office environment in mind. Video training can work if it’s relevant and relatable to the trainees’ lives and work experiences, but interactive training that involves tactics like role-playing increases effectiveness because employees can ask questions and learn to model appropriate behavior.

As such, leaders in the workplace need to make sure they’re asking enough hard questions of their own organizations, and that includes everything from the clearly illegal to the gray areas that can lead to problems later.

Chat with a solutions expert to learn how you can take your compliance program to the next level of maturity.

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