About this episode:
The last few months of 2017 were characterized by a long list of high-profile sexual harassment claims, and as more victims came forward, even more appeared. While sexual harassment, and harassment in general, seems like a phenomenon in other industries and places, it hits close to home, too, and beyond the potential for litigation, it can make a workplace less productive. Ryan Nelson, Utah president of Employers Council, talks about how to draw a line against harassment, and how to deal with it if it happens in your office.
You can read more about this issue in Utah Business’ December issue, or in the articles, “#METOO: How to Create a Safe, Harassment-Free Workplace” and “Drawing a Line: How to Recognize and Eliminate Sexual Harassment in Your Organization (Yes, Yours Too).”
[The following has been edited for grammar and clarity.]
Lisa Christensen: Hello and welcome to UB Insider. I’m Lisa Christensen, online editor at Utah Business magazine. The news of a seemingly endless string of high-profile sexual harassment allegations has been impossible to miss lately, and as the allegations mount, the topic is proliferated on social media and at water cooler conversations. As more and more people come forward it’s likely employees may be more willing to make complaints about harassment in the workplace after decades of it being a largely taboo subject.
Ryan Nelson, Utah president of Employers Council has more than 15 years of experience in employment law litigation and claim prevention services and is a key insider and expert on numerous employer and employee topics including sexual harassment. Welcome.
Ryan Nelson: Thank you. Thanks for having me.
Lisa Christensen: So when many people think about sexual harassment they think about the creepy coworker making lewd comments or the sleazy boss standing too close to female employees, but it’s much broader than that. What is a more correct definition?
Ryan Nelson: Great question. So when we think about sexual harassment one of the first characteristics that we assume is that it’s male to female. Gender isn’t necessarily required as male to female or female to male to have sexual harassment. What we focus on from a legal perspective with sexual harassment is the content or the behavior itself. Is it sexual in nature?
So the creepy coworker standing over your shoulder and perhaps putting his hand or her hand on the coworker’s shoulder, is that sexual in nature? Now sexual in nature doesn’t mean explicit. It can, but it also doesn’t mean pornographic although it could include that too. The question is, is there sexual context or connotation associated with the language, the gestures, the behavior, the written or verbal statements?
Lisa Christensen: So where does intent fall in that? Is it more dependent on intent of the person or the interpretation of the victim? Or do either of those things even matter?
Ryan Nelson: Intent does not matter. When we look at harassment or sexual harassment the test is effectively the same. First, is there conduct related to a protected status? And in this instance is it sexual in nature? That’s the first part.
Second, is the behavior unwelcome? This is a question of whether the behavior is unwelcome from the perspective of the individual receiving the behavior. It’s a subjective test. It depends on the individual. So that individual’s perceptions, feelings about whatever that behavior is, that determines that second question. And so if I, the individual, say, “Yeah that’s creepy to me,” that’s enough for the second step. If we have that we then move to the third question which is an objective test.
Is the behavior objectively offensive to a reasonable person? It’s not what you or I would think. It’s an objective test based on all of these different factors of what happened: the context, the timing, maybe even the repetition. We’re looking at all of those factors and asking the question – if I dropped an objective person into this situation and that behavior happened to them, would they find it unreasonably offensive? If so, we then move to the last question.
Is the behavior severe, meaning it’s really bad? This could include inappropriate touching or something excessive or extreme like that. Is it pervasive? Pervasive means, it’s not necessarily all that bad, but it becomes bad because of repetition.
Lisa Christensen: And given all of the steps associated with this test, how pervasive is sexual harassment in the workplace?
Ryan Nelson: In my experience, you do have bad actors. There are individuals who again, excluding intent, may not intend to create a harassment situation or to sexually harass a coworker. Maybe they don’t have a standard that they’ve ever kept or it’s just how they act at home when they’re with their friends in the living room. The challenge is raising the level and expectations of behavior for all of the employees in the workplace.
In an office, you have a great variety of individuals who come together. They’re working together, but their backgrounds, their upbringings, what they’re comfortable with, their experiences, all of that is dropped into and made part of the work relationship. So you take intent out. You have all of these different variables.
I genuinely believe that there are very few individuals who are intentionally bad actors. What I often think we have are misunderstandings or misinterpretations of behavior. And we’ll use the example that you started with: the male coworker who stands too close and puts his hand on a female coworker’s shoulder. Now in some instances that might be perfectly acceptable. In others the female coworker may feel uncomfortable with that. And it’s perhaps because the coworker is new. They’ve never met before or barely know each other. So context can matter.
Thinking back to that second step, the recipient of the behavior, how do they feel about that behavior? That’s a significant factor of that outcome. I think that perception often influences this. I perceive that something is happening and therefore it becomes my reality. But from a legal perspective, sometimes it’s not. Does that answer your question?
Lisa Christensen: Yes, it does, I believe so. Why has sexual harassment traditionally been underreported in workplaces?
Ryan Nelson: That’s a great question. You’re an employee. I’m an employee. When we go to work there is a culture and a reporting structure. There’s pressure to progress and succeed. There’s politics that play a part in the work environment. Now you add into that a feeling of being sexually harassed. My boss perhaps, or someone with authority or tenure at the company, is the one I feel has committed that behavior. How can I step forward and, in effect, challenge that individual and say, “What you did was unacceptable or unwelcome to me.” Maybe it was sexual in nature which would, in effect, be considered unreasonable. Maybe it happens all the time or it was a one off instance that was really bad.
I may have a valid complaint, but the pressures of, or even the hierarchy of the workplace can stifle that willingness to make the complaint. And that’s a challenge that employers have to address head on. If I’m subject to sexual harassment, my employer has an obligation to deal with that and to address it. But I have an obligation to make sure that it’s known that it’s happened. So there’s this conflict that’s inherent there.
The workplace could create a disincentive to complain. And I think that’s one of the reasons why we’ve seen such a surge of reports in the media. It’s as if all of a sudden, it’s now okay to report. There’s this tidal wave of pressure supporting individuals who feel that they’ve been exposed to that type of behavior. So it’s all about eliminating that barrier for an employer to allow their employees to make sure that they’re comfortable and can make those complaints. That’s one of the reasons why I don’t think we’ve had the reports happen as often as they should.
Lisa Christensen: But now we’re seeing all of these reports and now other people are feeling like oh, it’s okay for me to say what happened too.
Ryan Nelson: Correct. And so there’s this shift in perception. Suddenly I don’t need to worry so much about the politics or my standing and relationship with my superiors. I can make this claim because look at all of these other individuals who have come forward and made the claim and how it’s been positively received. That’s empowering. That’s encouraging.
For a woman, for example, who has been putting up with something like that for a while, seeing all the positive news reports and people coming out and condemning that behavior is extremely empowering. It gives courage to an individual to report. And I think, in answer to your question, it’s tough to take that step and put yourself out there and say, “this happened to me,” and be subject to some of the scrutiny that might happen as a result.
Lisa Christensen: Well with the tide kind of turning, what effect do you see this scenario of more and more people reporting having on the workplace?
Ryan Nelson: The effect, I think, has a couple of parts. First, I think employers need to prepare for that. As I just described, employees may now feel more emboldened and empowered to make complaints. So an employer needs to be prepared to handle the complaint.
Second, I think the effect that it has is perhaps a significant, if not critical, shift in values and behavior. What is acceptable and not acceptable in the workplace? If it has happened, we need to condemn it and make sure it doesn’t happen again. I think that effect is very positive. But practically speaking, an employer needs to be prepared to address the complaint. They need to understand how to manage it from that point forward. They then must make sure that if it’s something that has been a historical part of the workplace, that it’s eliminated and doesn’t happen again. That’s where liability comes in for an employer.
Lisa Christensen: So we have this changing tide. We have this emerging need to really step up the game. So what does this all mean for employers and for employees?
Ryan Nelson: So for employees, they need to understand that they have the right to complain. If employees feel that they have been subject to sexual harassment or any other kind of harassment, they need to understand that they can say something about that. They have a right to complain. They don’t have to necessarily be correct about the complaint, but they have the right to express what they have perceived to their employer. The employer then needs to understand that once that protected activity has occurred – the right to complain – they have an obligation to take it seriously.
What we advise employers to do is to give the employee the benefit of the doubt, so to speak. You’re not there to pass immediate judgment. You receive the complaint and you do an investigation. An investigation is casting the net out, trying to obtain information to validate, one way or the other, the complaint, to really determine what happened. Sometimes it’s he said, she said. That can be a legitimate outcome. Sometimes there’s not enough objective evidence to support what the complaint says happened. And that can be okay.
An employer needs to recognize that in that investigation process, when they’re talking with witnesses, they must follow a very appropriate and distinct process to come to the conclusion of what happened. If you do conclude that your standards of no harassment, no discrimination have been violated as an employer, you have an obligation to act. How you act, what you do as a consequence will depend on the behavior, of course. It’s not a one size fits all. The punishment fits the crime. That’s the employer’s obligation – to determine what happened and to respond appropriately, and timely.
It’s not something that employers should just put on the back burner and say, we’ll get to it when we get to it. You need to deal with it. It must be a priority. Because if you don’t, and again, as an employer representative, one of the critical questions we’re asking is was the investigation timely? Was it thorough? Are the conclusions that are drawn reasonable? In other words, are they supported by the facts? Those are questions that an employer needs to be prepared to address.
If employers don’t already have these processes, they need to implement them and be ready. Because as you describe, this wave is significant and is moving forward. I think a lot of employers are going to be swept up by it. It’s important to be prepared.
Lisa Christensen: What should employers do if, you know, they have a complaint or two that are kind of he said she said situations? What should they do when there may not be anything necessarily substantiated but there’s still some concern by at least one employee?
Ryan Nelson: What should the employer do? The employer needs to take it seriously and they need to investigate. How broad that investigation is or how deep the investigation goes will vary and depend on the circumstances. It could be that we talk to two people and we hear what they said and there’s enough information there to conclude yay or nay. The behavior occurred or it didn’t or we’re somewhere in between and we can’t tell. But they have to follow those processes. They have to conduct that investigation.
Once they’ve done that investigation they have their arms around the facts and can draw the conclusion. They can implement something. But they need to ensure that that outcome is tied back to the investigation. In other words, in order for the outcome to be reasonable and defensible for an employer, what we’re doing has to be related to or tied back to what we discovered in the investigation. If we’re acting in accordance with that, an employer is generally in a defensible position and they’ve done it properly.
So overall, have an investigation, treat it seriously. If there’s more than one, then you have more than one investigation to deal with. Now what if we do have frequent claims of harassment? I think the employer needs to take a step back and ask some serious questions. How is our culture? How is our environment? Do we indeed have bad actors? And if so, what do we do about it? Knowledge and failure to act generally equals liability for the employer. And that liability can be costly. That means money and payments and administrative agencies getting involved and telling you that you screwed up and that you need to fix it.
Lisa Christensen: And the reputation damages can also be significant, too. Look at some of these companies that have had to really react when serious allegations come forward.
Ryan Nelson: Oh, absolutely. I mean, think about the culture of the state of Utah. On the one hand, there is this wave of condemnation for this type of behavior. Then there is this very conservative nature of the state of Utah. If you put those together then you’re evaluating an employer’s reputation. And if it comes out that you have a history of doing this or you knew about it and you didn’t deal with it, that now plays out in social media. That can be significant, and I’ll add one more thought to that. In today’s tight labor market where employees have lots of options of where to work, your ability to retain and attract a quality employee might now be significantly hampered. That could have long-term ramifications for the viability of your business.
Lisa Christensen: It sounds like when you talk about creating a culture where victims can speak up and say something, it sounds like it also needs to be a culture where other employees can speak up if they are that reasonable person and they are witnessing something that is unreasonable.
Ryan Nelson: It’s a great standard for an employer to have a written statement, what we call an EEO, an Equal Employment Opportunity statement together with a no harassment, no discrimination and no retaliation statement in part of their employee handbook or as a standalone piece of paper. And that document identifies that first off, we don’t tolerate as an employer, harassment, sexual harassment, discrimination and retaliation. That’s prohibited behavior at our workplace. So an employer needs to have that and set that out right at the very beginning, and then they need to be true to that.
Also, as part of that standard there needs to be a complaint mechanism that works. There needs to be a functional, legitimate complaint mechanism so that individuals who feel that they have been subjected to harassment can speak up and say something with an assurance that the company treats it seriously and will respond appropriately. Often we’ll see that policy include others or give others the opportunity to speak up and report things.
You may not be the one who’s on the receiving end of questionable behavior but it’s important to us as an employer, with the culture and environment that we want for our employees, that we want to squash this behavior out. So if you see it, tell us. Let us know. That’s completely appropriate and frankly a great mechanism to enforce and maintain an appropriate level of behavior.
Lisa Christensen: So have a policy, have a mechanism and then back it up.
Ryan Nelson: Correct. But worst case scenario, we have a harassment behavior in the workplace, we have a policy but we haven’t really done anything with it. It’s just a piece of paper. Well when the EEOC, for example, comes in and are investigating the behavior because there was a complaint, they’re going to ask to see the policy. And so then we have this piece of paper that we can produce, but do we do more than that? Do we actually follow it? That will become evident in the investigation. If it’s just a piece of paper, we’ve not done what a reasonable employer should and now we’re negotiating, effectively, from a position of weakness. And often the employer will lose in that instance and that’s unfortunate.
So yes, have the statement, but live it, enforce it, maintain it. I would even go one step further and make sure that supervisors and managers know and understand it because they’re often the ones who will receive the complaint. The employee comes to their supervisor and says, “Hey, I just want to talk to you about something.” And that employee then unloads, “Hey, this coworker is doing or saying something and it makes me uncomfortable.” Let’s just say that it’s sexual in nature. What does the supervisor do there? He or she needs to be prepared to handle that, because it’s a complaint. That is a valid complaint that should trigger the process and enable the employer to investigate. So supervisors and managers need to be fully on board with that and toe the company line in that respect.
Lisa Christensen: Is there anything else that you want to add about this? What employers should know? What employees should know? Kind of what to expect in this, hopefully, permanent new workplace environment?
Ryan Nelson: One thought I guess I would add is, going back to what I said before about the employee has the right to complain, if you will, often there is a difference of perception between the individual who has complained and the person who has been complained about. They perceive the behavior differently. If you feel the behavior has occurred, say something.
I would say to the employer, have a policy. Be prepared to handle that and know that just because the employee says it happened, your investigation is really that critical step where you determine what did happen and what is reasonable to do about it. Don’t pass judgment initially, let the process do its job and then draw whatever the appropriate conclusions are after you’ve followed that process. Give the employee the benefit of the doubt to start. Get them in that process. Let the investigation process run its course, draw your conclusions, document what you’ve done and move on. And if there has been inappropriate behavior, deal with it. Eliminate it from the workplace because that’s not the kind of employer that you want to be.
Lisa Christensen: Okay, well thank you so much.
Ryan Nelson: You’re welcome. Thanks for having me.
Lisa Christensen: You can read more about sexual harassment in the workplace and how to keep it from happening in your office in our December issue or on our website, UtahBusiness.com. Thanks to Mike Sasich for production help. You can drop us a line at email@example.com or reach out to us on social media at @utahbusiness. You can also find UB Insider wherever you find your podcasts. Thanks for listening.