#WorkTrends Recap: How Leaders Can Create an Open Dialogue About Sexual Harassment

Has the mood in your office changed since October 5, 2017?

You probably don’t remember the exact date like Jonathan Segal does, but I’m willing to bet your world has changed a little since the Harvey Weinstein sexual harassment story broke.

That day “blew the top off any denial that harassment was a serious problem. We all know it’s a serious problem. Now there is no excuse for any organization to ignore it,” says Segal, my longtime friend, a prominent HR attorney and a member of the EEOC Select Task Force on the Study of Sexual Harassment in the Workplace.

Talking about harassment is hard enough among friends, but in the workplace, it’s even more loaded. There are a lot of complicated dynamics to explore. I asked Segal for his take on how leaders can facilitate these tough conversations.

Rethink Training on Sexual Harassment

There’s been a lot of talk about whether training about sexual harassment is effective. Segal says that harassment training is just like anything else: quality matters. He shared his tips for building a truly effective training program:

  • Focus on the human element, not just legal compliance. “If you focus on, ‘This is what we need to do to stay out of court,’ then you devalue the human element,” he says. “This is about preventing harm.”
  • Train managers to be proactive. Managers should be on the lookout for any behavior potentially on the continuum of harassment, and respond proactively by reporting everything to HR.
  • Use clear language and practical examples. Training language can’t be canned legalese, he says. Don’t get lost in legal labels. “Sometimes, I see training and I don’t even know what it means — and I’m a lawyer. You have to be specific. A policy and training should make clear what behaviors are unacceptable, even if they’re not unlawful.” For example, using a sexist quote in the workplace probably isn’t unlawful, but it still warrants a response.
  • Customize the training based on your people’s needs and risks. Segal says that one of the key elements of an effective training is customization. “If it’s off the shelf, usually it’s going to be of minimal value.” He recommends pinpointing the unique risk factors in your organization: Do you have a younger workforce? Are individuals reliant on tips? Are people working at decentralized locations?

Not Sure What’s OK? Consider These 3 Factors

The whirlwind of allegations, legal cases and conversations about sexual harassment might make some people second-guess their previous behaviors. For example, is it okay to give a coworker a hug? Segal says you should consider three factors when you’re navigating an unclear situation:

  • Relationship
  • Context
  • Power

“If someone at a holiday party gives someone a hug and says, ‘Merry Christmas, Happy New Year,’ and it’s in front of other people, I think that’s socially acceptable. I wouldn’t say you can’t do that.” But, he says, walking into someone’s office and saying, “Hey, it’s time for your Friday hug” is different.

Another example: “If I were in a business meeting with five people and there were four men and you, even though we’re friends, I might think in that setting, ‘You know what? I’m gonna shake your hand,’” he says. “Then, afterwards I could say, ‘Now, as a friend, I’m going to give you a hug.’” But I might be thoughtful about the context.”

If you’re a hugger (like I am!), it might be time to rethink who you hug and when. Segal says it’s all about self-awareness. “Try to be thoughtful about the when, the where, the who — all those factors — because other people have different perspectives on it.”

Get Serious About Your Non-Retaliation Policy

Segal says that many employees who experience sexual harassment don’t ever speak up because they fear retaliation. He says we’ll never get to a point where people feel more comfortable coming forward unless there’s a non-retaliation policy that’s actually reflected in the culture. That means that people who stand up won’t face consequences in terms of assignments, promotions and even whether people will speak to them at work. “A critical part of getting people comfortable speaking up is making sure there’s no retaliation if they do,” he says.

Speak Up and Stand Up

“If you’re in leadership, there’s no such thing as being a passive bystander,” he says. “If you see or hear unacceptable conduct, and you’re a leader, and you ignore it, you are condoning it by your silence and you’re sending a powerful message. If we see it or hear it, even if a complaint isn’t made, we need to stand up.” Sometimes, that may mean standing up to people senior to you.

Don’t Completely Recede

Segal says he’s worried that men will completely back away from interacting with women professionally because they don’t want to accidentally offend anyone. But that approach can have unwanted, gendered consequences, as well. “If men withdraw from women, then they’d be giving men advantages through social interactions that women aren’t having. More social inclusion, the business trips, the mentoring. The strategy for avoiding harassment can’t be to avoid people of the opposite or same sex. It has to be avoiding the behaviors and being thoughtful about what you’re doing with people.”

Segal says he’s encouraged about the post-October 5 world we’re living in now. “I think we now know that what people may have accepted before, they won’t now. I think that’s a really good thing. When you think about harassing behavior along the continuum, it’s abusive. Abuse is often kept quiet, and it’s a secret. That’s part of why it continues.” So bringing these issues out into the open is good for everyone, he says.

“I was in line for coffee and I heard two people actually having a conversation: ‘You think it was okay that I said this?’ ‘Well, I’m not sure that I would have said that.’ I don’t know what the answer was, but I think it was great that they were having the conversation.”

Stay tuned for more inspiration on the #WorkTrends podcast, every Wednesday:

10 Challenging Issues Employers Will Face in 2016

In the past year, there have been tremendous workplace changes as court cases, legislation and regulatory actions have called into question the very nature of employee rights and employer obligations. Based on these developments, an employer may need to revisit its workforce policies and practices to minimize employer liability and protect legitimate business interests. Here are the 10 most challenging  employment issues facing employers in 2016 and suggestions on how to prepare:

Same-Sex Marriage

Based on the Supreme Court’s decision in Obergefell v. Hodges in 2015, same-sex couples have a constitutional right to marry and are entitled to the same rights and benefits as opposite-sex married couples nationwide. This is a major shift for employers, eliminating differing state laws. An employer should revisit its policies and practices regarding EEO and discrimination, employee benefits, leave, marital status and tax information to lawfully implement this ruling.

LGBT Rights

LGBT rights in the workplace are rapidly expanding as new laws on the state and local level prohibit discrimination, harassment and retaliation based on sexual orientation and gender identity and require employers to provide reasonable accommodations. It is critical for an employer to incorporate LGBT rights into its policies and employee handbooks.

Reasonable Accommodations  

As workplaces become more inclusive and diverse, employers must comply with federal, state and local laws providing workers with reasonable accommodations based on pregnancy, religion, disability and sexual orientation, if doing so would not create an undue hardship. As a result, an employer should implement and enforce reasonable accommodation policies and train supervisors and managers to make a good faith effort to provide such accommodations.

Paid Sick Leave

The trend toward providing paid sick leave and permitting workers time off to care for themselves and their families has grown immensely. Paid sick leave is required for federal contractors and an increased number of states and cities passed paid sick leave legislation. Affected employers should comply.

National Labor Relations Act Compliance 

The National Labor Relations Board continues to vigorously pursue employers maintaining rules prohibiting employees from engaging in protected concerted activities or collective action to improve wages, hours and working conditions under Section 7 of the National Labor Relations Act. An employer should be particularly cautious and ensure that workplace policies on social media, confidentiality, investigations and communications, among other things, are narrowly tailored and do not infringe upon employee rights.

Workplace Wearables

Rapid advancements in technology have led to new uses for wearable devices at work such as improving communications and increasing safety, employee health and wellness. An employer should implement wearable technology policies and outline proper workplace use to minimize employer risks.

Overtime Changes

The Department of Labor’s (DOLs) proposed regulations, likely to be finalized in 2016, would greatly increase the number of employees eligible for overtime by raising the salary for exemption to $50,440. Accordingly, an employer should reassess its workforce and determine if changes are needed such as increasing the salary of currently exempt employees, reclassifying employees or reviewing job descriptions.

Independent Contractors 

Recent federal and state worker misclassification cases as well as DOL guidance suggest most independent contractors are actually employees when viewing the economic realities and evaluating all factors.  A prudent employer should assess all independent contractor relationships and presume most independent contractors are actually employees.

Joint Employers

Both the NLRB in Browning-Ferris Industries of California and the DOL have substantially expanded the joint employment standard and recognized that two entities may be joint employers if they possess, exercise or simply retain the right, directly or indirectly, to control the same worker’s terms and conditions of employment even if control is not actually exercised.  As a result, an employer should closely evaluate its business relationships and contracts to assess whether it has the right to control (directly or indirectly) the terms and conditions of a contracted employee, or another company’s employee, and be careful about amount of control exerted. 


Telecommuting is on the rise as approximately 30-45 percent of the US workforce now telecommutes or engages in some other form of flexible work arrangements. If an employer allows employees to telecommute, it should maintain a firm policy setting forth criteria for selection of employees who may telecommute, expectations and methods for monitoring productivity.

Photo Credit: Jori Samonen via Compfight cc

The Hot Potatoes Of Social Screening

“The vacant laugh
Of true insanity
Dressed up in the mask of tragedy
Programmed for the guts and glands
Of idle minds and idle hands…”

—Neil Peart (musician and writer)

That’s when I saw the photo — a full view of a man’s naked back severely cut open from multiple slashes of some kind of large knife. Before even knowing the context (and not really caring at first), I cringed and rolled my eyes. I’ve seen a lot of inappropriate images online since I’ve been playing and working in online networks, usually the more social of the bunch like Facebook, Google Plus, Twitter, even Instagram (of course, since that’s where you share photos, and my appropriate share is plentiful).

This one, though, was really offensive, although I didn’t point that out to my friend who shared it, nor did I comment on it at all. I had just been scanning my news feed like I usually do and – smack – there be the gore. The context, which I did take 30 seconds to digest, was a story about a police officer that had been cut up by an assailant (not sure if it was true or not and didn’t take the time to fact check). The slant of the piece was why officers should be allowed to make a split-second decision to shoot an assailant if it’s a life-and-death situation.

My father was an officer and police detective for over 30 years, and he always told me that he’d rather face a “bad guy or gal” holding a gun than wielding a knife, because at least with the gun you knew where it was pointing. One night when I was in high school, my father and mother were leaving one of my football games when he confronted a “high” kid threatening a school official with a knife. My father was off duty and carrying his gun (like he always did), but chose instead to hit the knife-wielder with his camera bag over and over again once the kid attacked. My father was stabbed multiple times and the kid was arrested. Years later the kid-now-adult died in prison from multiple stab wounds.

But that’s not the point of my story.

No, where I’m going with all this is the offensive photo I found in my news feed. And, because of the industry I’m in and the perspective I usually take, I imagined if I were an employer looking at public candidate profiles across social and professional networks as part of my pre-employment screening process, finding these horrible hot potatoes along the way.

The reality is that I don’t have to imagine, since I have sourced, screened and hired multiple positions and team members over the years in my various incarnations, and that includes going online to see what I can find. I mean, where’s usually the first place most sourcers, recruiters, HR folks and hiring managers go today when screening a candidate? We Google them and more, right? And we search for them via social media to see what’s up in the virtual world — even if we don’t admit it (or admit they based hiring decisions on what they find).

The fact is, we can easily find professional or personal information on a job candidate with just a few clicks, and something we talked about in depth on the TalentCulture #TChat Show. However, alongside the ease come real and rising legal risks that employers must be aware of when researching candidates on a social network or through a search engine.

There are certainly both the risks and rewards of screening job candidates online, but understanding the legal considerations facing companies that turn to the Internet to check out job candidates due to privacy, discrimination and accuracy is critical. According to my friends from EmployeeScreenIQ and their The Unvarnished Truth: 2014 Top Trends in Employment Background Checks report (surveyed over 600 individuals representing a wide range of companies):

A substantial portion of respondents (38 percent) search online media for information about their candidates as part of the hiring process. It’s not an insignificant portion, but the vast majority of employers forego this activity. Eighty percent of those who check online sites turn to LinkedIn for information.

Plus, whether or not employers consider Google and other online social and professional network searches “background checks,” the FTC has ruled that some social media data aggregators are, in fact, subject to the same laws as traditional background checks.

Heck, if my friend was a prospective candidate of mine, I would’ve dropped him/her like a hot potato, without question or context. Of course I wouldn’t have documented that decision, since I’m not going to go on the record that I made a potential hiring decision based on what I found online, but nearly 50 percent of those above who said they screen socially drop because of inappropriate photos, and nearly 50 percent are screening via Facebook.

That all said, whether becoming or handling social hot potatoes:

  1. Employees should be much more self-aware of what they share online and why. They should always be vigilant, since they’re always perpetual candidates regardless of role or classification, and no matter how happily employed. Human beings are horrible decision-makers on the average, so making bad judgments of posting graphic photos online because you’re trying to make a point when a future or current employer (maybe one of the nearly 40 percent that won’t like it), or even potential investors if you’re launching your own business, doesn’t matter when they care about or for your point, then you’re forgotten as fast as you posted your point. No longer in consideration. Good luck to you.
  2. Employers should be much more self-aware of their screening processes and who’s screening whom, what, when and where. They should also always be vigilant, since they’re perpetual suitors regardless of the roles or classifications they’re “hiring” for. People are their greatest asset, and their greatest liability. Transparency I believe in, but there’s a reason for privacy and discrimination laws. There are just too many hot potatoes of social screening, so do yourself a favor and underscore your screening process with legitimate pre-employment screening practices that are EEOC, OFCCP and FCRA compliant.

Those acronym hot potatoes will get your company burned otherwise, most likely audited and fined. Then neither of us is in consideration any longer (employee or employer).

Good luck to you. Maybe start using an oven mitt.

About the Author: Kevin W. Grossman co-founded and co-hosts the highly popular weekly TalentCulture #TChat Show with Meghan M. Biro. He’s also currently the Product Marketing Director for Total Talent Acquisition products at PeopleFluent.

photo credit: pirate johnny via photopin cc