Sexual Harassment Training : ELT, Inc. : AB 1825, Employment Law, Online Harassment, Compliance, and Harassment Training

Based on a recent Gallop Poll, nearly 87-90% of Americans believe that gays and lesbians should have equal rights in terms of job opportunities. While states continue to expand employment law protections (see NGAL Task Force State Map of Non-Discrimination Laws) federal laws still do not expressly prohibit employment discrimination on the basis of sexual orientation.  There’s also no federal coverage for gender identity, which relates to an employee’s beliefs about whether s/he is male or female.  It’s an astonishing gap that puts the U.S. behind the curve on the world stage when it comes to civil rights protections.

But one legislative initiative is putting these issues front and center on the national agenda. It’s called the Employment Non-Discrimination Act. The EDNA is not a new initiative. It’s actually bounced around Congress in one form or another since 1974.  And it’s been languishing for nearly a decade.

Well – the EDNA is back. And it’s making some real progress. Democrats in the House have made some compromises (and created some rifts in the bill’s supporters, as well as the gay and lesbian community) hoping to get some form of legislation passed. The revised bill, H.R. 3685, was passed by the Education and Labor Committee on October 18, 2007. The big change?  The bill no longer includes gender identity. It only prohibits discrimination on the basis of sexual orientation.  Some in the house believe it’s the only way to get the ENDA passed.  Sure enough, on November 7, 2007, H.R. 3685 was passed by the House of Representatives by a vote of 235 to 184 (14 members did not vote).

Even though the Senate doesn’t have a companion bill, the ENDA isn’t likely to make its way through the Senate this year.  Even if it did, a Presidential veto is almost a certainty, but I wouldn’t write this legislation off so quickly.

There is overwhelming public support for equal rights for gays and lesbians. I expect that this issue will stick around well into 2009. If we see a further shift of power in the next election, I predict that our federal employment laws will get a modern face lift – and we’ll catch up with the rest of the world.

In the meantime, closely scrutinize your harassment training programs, and include coverage of sexual orientation and gender identity.  You may already operate in locations with existing state law protections, and your internal policies likely cover these categories, regardless of formal legal protections.  And at the end of the day, you need to recognize and manage the realities of your diverse workforce.  Aside from legal compliance, prohibiting discrimination on the basis of sexual orientation and gender identity is the right thing to do.

So who’s the latest executive to get caught with his pants down?  Mark Everson of the American Red Cross.  After learning that he was romantically involved with a subordinate employee, the Board sought his resignation this week – and it was effective immediately.  The official reason?  According to the Red Cross’ press release, Everson exercised "poor judgment" that "diminished his ability to lead the organization in the future."  Ouch.

Exec level terminations like this typically involve very serious misconduct – fraud, theft, misappropriation.  But in this new climate of intense ethical scrutiny, office romances now fall into mix of unforgiveable transgressions.  By loosing his job to his libido, Everson now joins the prestigious ranks of Paul Wolfowitz of the World Bank, and Harry Stonecipher of Boeing.  The Red Cross took a hard line with Everson, and now begins the process of managing the fallout.What a tremendous blow to an organization that’s already had its fill of challenges. Everson was the 5th CEO in 5 years, and had only been in office for 6 short months, brought on board chiefly to clean up the Katrina mismanagement mess. (Washington Post: President of Red Cross Forced to Resign; CBS News.com: Red Cross President Ousted Over Affair). With his departure, the organization will now be on its 6th leader. And the Red Cross is still tackling its mission critical challenges – like getting itself back on course with preparing for and responding to emergencies. 

The damage from this kind of scandal doesn’t just stop at the risk of litigation.  (Remember that “sexual favoritism” is a growing claim – meaning that coworkers who witness a consensual relationship between a supervisor and subordinate can make a case.)  The harm goes much deeper. 

Start with the hard costs of just replacing Everson – it’s not cheap to find a suitable executive to lead a high profile organization that’s under constant scrutiny.  Managing an exec level search twice in one year is a lot of money down the drain.  Then there’s the inevitable loss of employee confidence and productivity that follows this kind of an announcement – not to mention the potential for increased turnover. Employees start to jump ship when they think it might be sinking, and when they associate their employer with corruption and embarrassment. And we can’t forget the bad PR and loss of confidence by the community.  Just think of all the corporate sponsors and individual donations that have been compromised by a little consensual sex in the workplace.

What happened at the Red Cross can happen in any organization. No one is immune. It’s why compliance and prevention efforts around workplace harassment are so pervasive and top of mind for employers.  Organizations know they can’t just stand by, awaiting their turn on the front page of the newspaper.  Incidents like these are inevitable. 

This is where sexual harassment training comes in.  While romancing a subordinate may seem like an obvious no-no, educating employees about workplace harassment (particularly fraternization policies) is still desperately needed.  This is especially true for senior execs.  The landscape has shifted in recent years. Conduct that was once “acceptable” or at least ignored at the Board level, is no longer okay – and is ripe fodder for the media.  When the rules shift, it’s up to the organization to make sure that everyone gets the message loud and clear, especially the top brass.  Executives may think they don’t need to be part of sexual harassment training efforts, but cases like Everson’s make it clear they do. (ELT Blog: Don’t Forget Your Senior Execs—They Need Compliance Training Too).

And remember that harassment training is not a one time event.  Laws change and issues evolve.  People come and go.  And when it comes to curbing bad behavior – especially the kind that comes from a heady mix of sex and power – folks need their memories jogged from time to time.  Guess that’s why the US Supreme Court, the EEOC and many state laws call for “periodic” sexual harassment training.  It’s legal speak for “keep reminding them.”