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Federal Sexual Harassment Training Archives
No, Gina’s not a person – it’s a new law that every HR, legal and ethics professional should know about. GINA stands for the Genetic Information Nondiscrimination Act, and was just passed into law by Congress on May 21, 2008. Sponsors of the bill called it “groundbreaking” and lauded it as a critical civil rights bill.
GINA is designed to balance the benefits of obtaining and using genetic information for things like research and managing personal health and wellness, with the harm that results when employers and health insurance companies misuse the sensitive data.
What Does GINA Do?
GINA is intended to protect us – or our genetic information – from employers and insurers who want to make unfair decisions based on genetic information. The law is actually broken down into three parts. Some impact health insurers and others impact employers, labor unions and the usual cast of characters under federal antidiscrimination statutes.
When it comes to employers, Title II is most important. In simple terms, the law prohibits employers from discriminating on the basis of genetic information. You should of course check out the new law for yourself, but the most significant provisions include: - A ban against discrimination in hiring, firing, compensation and in the terms, conditions, and privileges of employment based on genetic information.
- A ban against segregating employees based on genetic information that would deprive them of employment opportunities or their status.
- A ban on requesting, requiring or purchasing employees’ genetic information except under specific circumstances.
- Strict confidentiality protections for genetic information, which can be revealed only when permitted by statute (and there are a lot of restrictions here.)
But I Don’t Have Access to that Kind of Information … or Do I?
Not sure if the law applies to you or not? Do you really have access to this kind of sensitive information? Don’t dismiss GINA so fast – it’s still worth a good review of your HR and employment law practices: - A study by the American Management Association revealed that 2/3 of major U.S. employers requires medical examinations for some new hires. And with recent advances in medical technology, it’s possible that genetic information may be revealed as part of that process.
- Genetic information may be revealed during the FMLA process, fitness for duty examinations, or any other process where you obtain medical information from a current employee.
- Managers may have access to genetic information, but get it in a more casual way – like when an employee reveals that she has a family history of breast cancer or has the gene that makes it more likely that she will develop breast cancer.
What Should I be Doing Now?
To start with, the law doesn’t take effect for another 17 months or so. That means you have time to get your ducks in a row and make sure that you’re in compliance. You also need to make sure that your managers are educated about the basics of GINA.
In short, employers should consider doing at least two things.
First, review your current policies and practices. Hopefully, you’ve already taken extensive measures to limit access to medical information (and even genetic information) which may be disclosed during the recruitment and employment process. Many laws, such as the Americans with Disabilities Act and similar state laws, already obligate employers to take great care protecting this type of information. But now is a good time to audit your practices and get your house in order. Also be sure to update your discrimination policy – it should now expressly prohibit genetic discrimination.
Second, train your managers about genetic discrimination. My guess is that most of your managers are not well informed about this topic. They may not think twice about taking action based on genetic information. Maybe they’re afraid of skyrocketing health insurance costs if they hire some with a predisposition to a serious illness. Or maybe they just don’t want to take a risk on someone who may need a lot of leave down the road.
It’s your job to make sure that managers are trained on GINA and understand the basic rules. But this doesn’t have to be a daunting production. You don’t need extensive training that’s dedicated to the topic of genetic discrimination. We’re really just talking about awareness and “issue-spotting” here. Roll this training in with other training on harassment and discrimination prevention, which should be covering a variety of topics in any event (not just sex and race).
Sounds simple…and it is…so make it happen.
No two people are alike – and that holds true for our prejudices. But there are some interesting trends that have found certain prejudices expressed more clearly among defined gender and ethnic groups. Several studies have found that men are more tolerant of discrimination than women, but a study released this month goes one step further to find that both genders tend to more readily accept prejudice against some immigrants and Arab-Americans. The study also found that: - Men and women differed the least in regard to discriminating against Arab-American airplane passengers, and most in regard to African-American motorists.
- The highest percentage of respondents accepted discrimination against "poorly educated immigrants," followed second by acceptance of discrimination against Arab-Americans.
- Respondents were least likely to accept discrimination against the genetically disadvantaged, or people who are genetically at high risk for diseases that require expensive medical care.
- Men were 19.6 percent more likely than women to tolerate discrimination against obese people and 17.4 percent more likely to accept racial profiling.
The results, just released this month, come from surveys of more than 3,300 people conducted in 2002 by University of Southern California researchers. It appears as though implicit bias (often subconscious) is driving the bulk of the problem. Edward J. McCaffery, a USC law professor, who co-authored the study, concludes that an individual who sees nothing wrong with certain kinds of biases will often find others objectionable. "Many political struggles of our time, in the United States as elsewhere, amount to clashes over the appropriate boundary between permissible and impermissible forms of discrimination," McCaffery said. "As a matter of practice, people morally opposed to discriminatory policies based on reviled forms of prejudice do not insist on equal treatment for everyone, in every context." So if you’re an employer trying to create a safe and welcoming workplace for all your employees (or at a minimum trying to avoid crippling discrimination lawsuits), what can you do to address this inevitable (and ugly) aspect of human behavior? Education is the heart of the solution. Discrimination and harassment prevention training, including sexual harassment training, is an absolute must for all of your employees. How will they know what you expect of them, and what behavior is inappropriate, if you don’t tell them – especially if they don’t even realize they hold certain biases? And while the most deeply held prejudices won’t be changed by even the best training programs, you can at least send a clear message that certain behaviors and opinions will not be tolerated in the workplace, and that there will be serious consequences for violating the anti-discrimination policy. As importantly, several laws and regulatory requirements require you to provide discrimination and harassment training. So beyond doing the right thing, and creating a culture of inclusion, basic compliance standards require you to take action. Finally, make sure education happens at all levels of the organization, including senior executives. Don’t forget your senior execs – they need compliance training too. Just because someone holds a high-level position in an organization doesn’t mean that s/he doesn’t have prejudices and won’t engage in discriminatory behavior. Many of the most notorious and costly lawsuits are the result of senior execs misbehaving. Implicit bias is both fascinating and insidious. We all have biases, whether we choose to admit it or not. Some of the most ground breaking work in this area has been done by “Project Implicit” – a collaborative effort among researchers at Harvard University, the University of Virginia and the University of Washington. Studies conducted by Project Implicit examine thoughts and feelings that exist either outside of conscious awareness or outside of conscious control. The primary goals of Project Implicit are to provide a safe, secure, and well-designed virtual environment to investigate psychological issues and, at the same time, provide visitors and participants with an experience that is both educational and engaging. Interested in seeing what your own implicit biases may be? Check out the virtual tests for an eye-opening experience.
It’s that time of year again – when we vow to make a difference and start the New Year off on the right foot. When it comes to personal resolutions, some of us have decided not to make them. I know some of my “good ideas” at the start of the year quickly turn into “what was I thinking? …” Like the year I tried to go cold turkey on not purchasing new (non-essential) consumer goods for a couple months – a challenge that proved extremely difficult and virtually impossible. When it comes to the workplace though, making a couple of solid resolutions is a very good idea. The process of selecting your top initiatives and then working out a plan to achieve them can help you focus your time and attention on what really matters. So … for those of us in the compliance training world, and those of us who manage employment law risks, what should be on the list? At ELT, we’ve boiled it down to 5 simple items: - Resolve to Avoid Crippling Fines and PR Nightmares: If we’ve learned anything from 2007, it’s that mandatory ethics and compliance training is a must for all employers. Training not only gets the right message out to your employees, but it can also help protect your organization from huge fines and criminal sanctions, not to mention a lot of bad publicity. Unfortunately, some employers learn this lesson the hard way. The most recent victim – the Tribune. They got caught inflating circulation numbers, lying to advertisers, and overcharging for ad placement. The Tribune just settled a criminal case with the feds to the tune of $15 Million. They now require ethics training for all their employees. If only they’d made a commitment to train employees sooner… they may have avoided this mess entirely.
- Resolve to Send a Consistent Message to All Employees: When it comes to harassment training, one consistent, nationwide message is best for all employees. This includes everyone from entry level workers to your senior leaders (let’s not forget the recent Red Cross romance debacle). And don’t think that just because your state doesn’t mandate harassment training that it isn’t essential. If your organization is sued under federal law (and most claims today include both federal and state actions) sexual harassment training can mean the difference between winning and losing the case.
- Resolve to Tackle New Ground with Wage and Hour Education: In the last few years, wage and hour litigation has slapped US employers squarely across the face. Employers of all sizes are reeling from costly and time-consuming litigation that’s resulting in staggering damage awards and settlements. Did you know that wage hour class actions now outnumber all discrimination class action cases, combined? 2008 is the year to do something about it, and to change your organization’s risk profile. Start (or enhance) your wage and hour compliance program with effective and carefully designed wage and hour training for all of your employees. Training needs to address both supervisory and nonsupervisory employees, and accommodate state law issues. Wage and hour education can actually help your organization establish critical good faith defenses to federal and state wage and hour claims. And another side benefit, your employees will know how to do things right from the start. Most violations in this area result from a basic misunderstanding of the laws and your policies.
- Resolve to Go Beyond Harassment: Harassment training alone may not be enough to protect your organization in the event of a discrimination lawsuit. For example, if you get sued for national origin disparate impact discrimination, trotting out your sexual harassment training program won’t get you very far, especially if punitive damages are on the table. Discrimination training for supervisors across all of the protected categories is a critical part of establishing the Kolstad defense. Remember, harassment is just one form of discrimination. Your managers need to be trained on discrimination basics across the employment lifecycle (hiring, performance management, terminations), in addition to harassment.
- Resolve to Train More Efficiently & Effectively: Nothing is more frustrating than purchasing an entire library of compliance courses only to discover that you have way more content than you need or could possibly consume. When it comes to compliance training, the best approach is to stay focused. Most employers do not need a massive course library – they need 4 cornerstone courses (ethics and code of conduct, harassment, discrimination, and wage and hour). A narrow focus will help ensure that your annual training initiatives are a big success rather than a massive flop – and that they carry true ROI in terms of reduced claims, and assertable defenses.
Adopting these simple but effective compliance training resolutions will help your New Year get off on the right foot, and finish strong. From all of us at ELT, all the best for 2008!
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.”
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.
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. It’s back. And it’s making some progress. Democrats in the House are making compromises (and creating 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. If you have some time, tune into the October 3 KQED stream on the Employment Non-Discrimination Act. You’ll gain insight into the politics behind the bill, and how it’s likely to progress. 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.
We’d like to think that childish, boorish and demeaning antics only happen at “those other” companies; the ones with different values, cultures, and an unchecked workforce. But the reality is that every organization has the potential not just for isolated instances of egregious misconduct, but also for more widespread, systemic conduct – the kind of misconduct that creates significant legal risk and can destroy the culture and reputation you’ve worked so hard to build. Case in point: EMC. Today’s Wall Street Journal piece on the data storage giant is a doozy: A Data-Storage Titan Confronts Bias Claims. Seventeen former saleswomen filed suit against EMC back in 2004 and they’re now seeking class action status. The plaintiffs are claiming discrimination and harassment – and the allegations are pretty old school, not to mention, a PR disaster – locker room antics, company paid visits to strip clubs, demeaning sexual remarks, and retaliation against women who complained about the hostile atmosphere. EMC denies the allegations and is fighting the class certification, as well as the lawsuit.
Why Compliance Professionals Should Take Note
Whether or not these claims turn out to be valid doesn’t really matter. A full-length, feature story in a national newspaper connecting this type of behavior to EMC’s corporate culture is a stinging blow. More importantly, this situation sends a wake-up call to organizations across the country. Harassment training, including sexual harassment training, remains an absolute must for today’s workers. Men and women still view and perceive sexual harassment differently. (Men and Women View Sexual Harassment Differently: The Power Divide). And trust me, if you don’t tell employees what you expect of them, you can be certain that “issues” like the ones faced by EMC will continue to surface. And don’t make the mistake of leaving senior leaders off the training list. Education needs to happen at all levels of the organization. (Don’t Forget Your Senior Execs – They Need Compliance Training Too). And senior execs need to do more than talk-the-talk, they need to live the values. Organizational change needs to happen quickly when it comes to harassment. At EMC, it seems as though denying expenses for strip clubs and a slap on the hand really wasn’t enough to change the tide. And finally, organizations have to start thinking strategically and proactively about managing class action risks. Plaintiff attorneys are looking for bigger cases and bigger dollar returns. EMC is battling a high profile potential discrimination class action, but a more daunting risk facing today’s employers is wage and hour class actions. Wage and hour claims have been increasing at an astonishing rate (up 86% between 2004 and 2006). And wage and hour class actions now outnumber all other federal discrimination class actions combined. Not surprisingly, wage and hour education is the next tidal wave of mandatory employee training. Not only does training prevent wage and hour violations from occurring by educating employees and mangers about the basic rules of the road, but employers can also establish a valuable affirmative defense to crippling damage awards by conducting effective and periodic wage and hour training.
Nothing is “Obvious”
I’ve been in this industry for more than a decade now. People often ask my opinion about whether compliance training will reach a saturation point where employees have learned all that they need to know. A compliance nirvana of sorts. (I mean isn’t this stuff “obvious” after all?) While organizations are embracing more robust and effective compliance programs, we’ve clearly not reached the promised land. With laws continuing to change and evolve, and the workforce continuing to diversify and turn over, compliance training is here to stay. It’s not just a good idea from an educational perspective – courts and regulators expect to see it. (Click here for a snapshot of the key legal drivers behind mandatory compliance training.) Even EMC claims to have had robust preventative training programs. Will be interesting to see how those play into this lawsuit. Stay tuned …
The workplace is a whole lot different than it was just a few decades ago. There are more double income families – not necessarily by choice, but often for survival. More Americans are taking on elder care responsibilities. More men are taking time off to care for children, and using employer policies once “reserved” for females. And without a doubt there are more women (and mothers) in the workforce today. Along with these shifts, we’ve seen the expression of some powerful negative stereotypes and old-school cultural norms, which tend to butt heads with the needs and realities of the contemporary American workforce. Not surprisingly, a new employment law trend has emerged – Family Responsibility Discrimination. FRD has found its way into mainstream discrimination discussions, and is an important new topic to cover in discrimination and harassment training. Most significantly, the EEOC issued guidance on FRD in late May of 2007. (See EEOC Guidance on FRD). The EEOC didn’t create a new cause of action or expand existing statues – but its guidance has brought attention and legitimacy to this issue.
What Is FRD?
FRD is basically discrimination against employees because of their caregiving responsibilities at home. The term is broad enough to include people who care for children, and those who care for parents. It includes both men and women, and employees of all ages, education levels, and protected categories. Family responsibility discrimination cases are brought under a variety of different statutes such as Title VII, the Family & Medical Leave Act (FMLA), and the Pregnancy Discrimination Act. And claims arise under a wide variety of circumstances, but generally involve an employment decision based on an employee’s real or perceived family responsibilities, or stereotypes about motherhood or masculinity. Claims are typically classified as sex or gender discrimination claims. FRD claims also arise when an employee is discriminated or retaliated against for taking family leave under FMLA or similar state statutes. (Check out the EEOC Guidance on FRD for specific examples).
Employers Should Take Note. FRD Cases Are On The Rise.
The number of FRD cases is on the rise. The Hasting College of Law Worklife Center has been tracking FRD cases for decades and reports that claims have risen from 97 cases in 1996 to 481 in 2005. During a period when discrimination claims overall have been dropping, FRD cases have increased at an astonishing rate of 400%. (See HRhero.com article Family Responsibility Discrimination). And plaintiffs win these cases 50% of the time – a much higher rate than for other forms of employment discrimination litigation. The issues tend to resonate well with jurors. And the verdicts are big. For a summary of some of the larger and more notable recent cases check out this recent National Law Journal article at Law.com on FRD.
Training is Key
Conduct giving rise to FRD claims is often based on attitudes and personal beliefs. Your employees often don’t understand that it’s not okay to express negative feelings about motherhood and family care responsibilities. Off-hand statements and snap judgments based on stereotypes are the bread and butter of these claims. The most critical first step for employers is to raise awareness in their workplace about conduct that can result in FRD claims. Your training need not deal exclusively with FRD issues, but EEO and harassment training should teach managers: - About the impact of stereotypes in the workplace, and inappropriate comments relating to family responsibilities.
- How to interpret and apply policies in a fair and consistent manner, without regard to gender or family responsibilities.
- To base employment decisions on objective performance and job criteria, not stereotypes and assumptions.
- How to spot and respond effectively to FRD claims. Managers in particular need to avoid discounting a claim, or making offensive statements while speaking with an employee about an FRD issue.
FRD is an emerging trend that all organizations should watch. In today’s marketplace, being a truly family-friendly workplace often makes the difference for prospective candidates, and it has a major impact on employee retention. Having “family friendly” policies is not enough. You need to establish a culture that supports and embraces the values behind the policies.
Sex and work just don’t mix well – and when office romances turn sour, careers and reputations have a tendency to unravel.
There’s been a lot to blog about lately on this topic – San Francisco Mayor Gavin Newsome (The Mayor Newsome Affair – Legal and Sexual Harassment Training Implications) and of course soon-to-be former President of the World Bank, Paul Wolfowitz (Men and Women View Sexual Harassment Differently: The Power Divide).
Newsome headed off to rehab and has stayed mostly under the radar. Wolfowitz held out a long time there, but finally caved and resigned. Awarding his girlfriend a hefty pay increase was just too much to overcome, and like many other sex-in-the-workplace scandals, his transgression was couched as a violation of the Code of Conduct. (See NYTimes.com: Wolfowitz Resigns, Ending Long Fight At World Bank).
These high profile office romances are no longer just about the sexual harassment policy (or any accompanying sexual harassment training programs.) They’re about ethics.
Case In Point: David Colby, Former WellPoint CFO
Ethics and traditional sexual harassment have collided head-on – and David Colby, former CFO of WellPoint, served up a shining example this week. I mean this one is just packed to the rafters with dirt.
On one side there are movie deals, elaborate cover-up stories, and lovers strewn about the country. On the other side is a well-respected company dealing with investor scrutiny and questions about integrity and ethics. And in the middle of it all is one man, who appears to have some serious issues.
The Wall Street Journal describes Colby as having a “complicated personal life.” Boy – that’s an understatement. He appears to have been leading a double life, with “secret” families in at least two different locations, accessorizing the arrangement with plenty of other girlfriends stationed around the country. And it’s reported that one of Colby’s romances involved a WellPoint employee.
Colby’s Personal Life Catches Up With Him
Until recently, Colby’s coworkers didn’t question his complicated personal life – that is, until it started to impact WellPoint’s reputation. Colby was asked to resign on May 30, despite years of extremely strong performance. I’m not sure what got the ball rolling – but it may have been a lawsuit filed against Colby by a scorned lover, and the subpoena she served on WellPoint for records. (See Bloomberg.com article).
While WellPoint has been tight lipped about the actual reason they let Colby go, the company did say that an investigation revealed a violation of WellPoint’s Code of Conduct. (See CNNmoney.com article). WellPoint's employment agreement with Colby also provides that his employment can be terminated if he engages in "conduct which tends to bring us into substantial public disgrace or disrepute."
Polygamy, shameless office romance, and all around deception? Yup – I’d say that qualifies.
Sexual Harassment and Misconduct Viewed As An Ethical Lapse and Code Violation
More and more employers are treating sexual misconduct and sexual harassment as a violation of their Code of Conduct, and not just as a violation of their harassment policy. Employers have connected the dots – sexual harassment is a more than just an HR issue. High-level resignations involving sexual misconduct are frequently couched in terms of Code violations, loss of confidence in leadership ability, and demonstrated poor judgment. Stellar performers can’t just hide behind their qualifications to save their jobs.
Ethics & Sexual Harassment Training Are No Longer Luxuries – They’re Musts
Employers today are expected to periodically train all employees on ethics and legal compliance. (For the legal basics, check out: Legal Drivers for Mandatory Harassment, Discrimination, and Ethics Training). And most Codes now include a prohibited harassment policy. As a result, harassment training has become a standard component of ethics and code of conduct and training.
And while it’s vital to address harassment issues as part of ethics and code training, sexual harassment training should be taken a step further.
Why? Well first, it’s about probability. Just peruse the federal and state statistics on discrimination claims. Harassment is so pervasive, it’s likely to be the most common form of Code violation that your employees engage in. Second, harassment is a complex topic with a lot of gray areas. Men and women tend to view harassment differently, and your employees are human – attraction and desire can lead to some very inappropriate workplace conduct. You need some robust, interactive education on the topic.
If you want to protect your organization, insist on dual coverage for this critical topic. Your code training should address harassment and discrimination, but you shouldn’t stop there. Harassment training should also be offered to all employees as a stand-alone program. This approach isn’t just a good idea – it’s actually required in multiple states. (See ELT’s 50-state sexual harassment training survey.)
Oh – and don’t forget to train your execs, and the Board. These guys (and gals) are some of the absolute worst transgressors. Their ethical missteps also tend to land you on the front page of the newspaper.
At some point in your career, you’ve undoubtedly come across someone who thinks that sexual harassment training is a bad idea. Why? They believe that training will actually fuel employees to file lawsuits. Better to keep workers in the dark about the harassment policy and their legal rights. Ignorance, the theory goes, is bliss. Fear of increased litigation is a powerful motivator. But failing to train is actually what creates more (not less) risk for an organization. For those of you who’ve been stymied by this “fear of training” argument, you now have some very powerful ammunition. A recent study (released today by American University’s Kogod School of Business) concludes that sexual harassment training does not invite lawsuits. While not a surprising result for most of us, it’s nice to confirm what gut and experience have taught us. Study Concludes Good Sexual Harassment Training Should Increase Employee Awareness No doubt, harassment training increases employee awareness. In fact, this is one of the key purposes of training. And yes, in some cases, an organization may see an increase in the number of internal employee complaints that are made – but this is a good thing. It means that your employees paid attention to the training and trust you enough to handle issues that are already brewing. (Better to catch them now before they spiral out of control.) What employees really want is to be treated with respect, and for their issues to be taken seriously. They don’t want to sue. If you handle the awareness and response components right, it’s the best way to reduce harassment-related litigation. Harassment Training Is Critical Evidence If You Are Sued If an employee does sue the organization after training, you’ll be in a much better legal position if you’ve actually conducted high quality training. Without it, your organization may have a difficult time mounting even a basic defense to the claim. Harassment and discrimination training has become such an expected business practice, it’s become very difficult for employers to explain why they don’t have it (especially with the lower cost and expansive reach of interactive online training). Training Mandates Are Here To Stay – Case in Point: The Failure of AB 1501 Don’t make the mistake of failing to provide comprehensive harassment education, especially if you have employees in states that actually mandate sexual harassment training like California, Connecticut and Maine. (See ELT’s 50-State Harassment Training Survey) And recognize in particular that California’s AB 1825 mandates are not just here to stay – they’re influencing the rest of the nation. Even though California’s sexual harassment training regulations have been through the ringer a couple times now (yes, it has been painful), the core training standards are finalized, and pending final approval with the Office of Administrative Law. (See AB 1825 Sexual Harassment Training Regs Adopted Without Further Changes). Recent attempts to whittle down the AB 1825 regs (like eliminating the need for employers to ensure that employees spend at least 2 hours in an e-learning program) have failed miserably. (Check out AB 1501 and CA Assembly Labor and Employment Committee bill analysis and defeat). Support for the AB 1825 timing mandates goes all the way to the top in California, with Governor Schwarzenegger firmly supporting a 2-hour requirement. When it comes to sexual harassment training, the California standard is establishing the baseline for all employers. And the California law is designed to make employers do the right thing – to invest in prevention – with the genuine belief that training will actually reduce incidents, and lower litigation costs. Today’s Kogod study just underscores the wisdom of that legislative design.
Gender identity discrimination statutes are on the rise, and employment and HR professionals need to get up to speed on this emerging trend. But first things first. What is “gender identity”? Gender identity is a term that refers to a person’s belief about whether they’re male or female – it’s not related to how someone appears physically. It’s also not about a person’s sexual orientation. Rather, some people do not believe that their real gender identity corresponds to their biological sex – for example, someone may appear to be male, but they believe they’re female. These individuals are commonly referred to as “transsexual.” For those of you in states like California, Minnesota, Rhode Island, and New Mexico, these growing protections for gender identity may seem long overdue. But change takes time and in some cases (and states), it just takes a little longer. Many states already prohibit sexual orientation discrimination. Last count, there were about 20 states and the District of Columbia, and about 100 or so cities/municipalities. But gender identity discrimination is different, and the protections have expanded at a much slower pace. But the tide seems to be shifting. Since Democrats took control of Congress, the ENDA (Employment Nondiscrimination Act) has resurfaced. This federal law would prohibit sexual orientation and gender identity discrimination in employment. We’ll see how much momentum it gains in the next few years … Number of State Statutes Nearly Doubles in Last 6 MonthsMore notable, however, is the number of states that have adopted or amended laws prohibiting gender identity discrimination in employment – and in just the past 6 months. The list below is by no means authoritative. Check with your lawyer to confirm state law – some states have case law or other executive rulings that apply to gender identity discrimination. The most recent state legislative activity includes: - New Jersey (late 2006): passed a law that will be effective June 17, 2007.
- Oregon (April 19, 2007): law expected to be signed by the governor and be effective January 1, 2008.
- Iowa (April 25, 2007): law expected to be signed by the governor and be effective July 1, 2007.
- Vermont (May 3, 2007): law expected to be signed by the governor and be effective July 1, 2007.
- Colorado (May 4, 2007): law expected to be signed by the governor and be effective August 2007.
A handful of other states are considering legislation right now, but have not yet passed laws. These states include: Connecticut, Indiana, Michigan, Massachusetts, Montana, New York, and Pennsylvania. Full-blown statutory protections mean that your employees can sue if they are victims of harassment or discrimination based on gender identity. Even if your state or local city has no law, some courts (even federal courts) allow gender discrimination claims based on failure to conform to gender norms. (For example, a male employee being teased because he is too “effeminate.”) So in some sense, most employers are already touched by this emerging legal trend. Employers Need To Get The Word OutIt is estimated that 2-5% of the population are transgender. By those numbers alone, some of your employees are members of this group. And those employees who are not in the 2-5% group rarely understand the issues and needs of transgender employees – and some can be down right cruel. Don’t underestimate what employees are capable of saying or doing. Just consider the horrible experience that Largo City, Florida Mayor, Steve Stanton had when he announced his desire to have a sex change – he was insulted and FIRED (after 14 years on the job). Without a doubt, this is an area that screams out for employee education. Few people understand gender identity, or how to respectfully integrate transgender employees into the workplace. And my experience is that many employees feel free to speak their minds (regardless of how disrespectful they may be) when it comes to this issue. If your employee’s don’t understand the basic issues, you shouldn’t be surprised when they don’t understand how to act properly at work. So for the sake of your organization, and your employees, tackle this emerging trend head-on. - Update your prohibited harassment policy if it doesn’t already include gender identity discrimination. (check out the organizations that prohibit gender identity discrimination by policy).
- Train your managers and employees. Give them facts and information, and remind them that the organization’s values of respect and inclusion extend to transgender employees.
- Make sure that HR understands how to help integrate transgender employees into the workplace smoothly. Some of their needs and concerns are unique – such as restroom use.
- Hold all employees accountable for disrespectful conduct.
Stay tuned for more news on gender identity protections … This is a trend that is only going to continue to gain momentum.
It’s not illegal to be a jerk. In fact, our workplaces are full of unpleasant and abusive people who don’t discriminate among their victims. These so-called “equal opportunity jerks” are just about everywhere today, and run rampant in our workplaces. Don’t believe it? Consider this. About 45% of American workers have been the target of workplace abuse. Another study by the Workplace Bullying Institute concluded that: Got your attention? With these kind of numbers, it’s not surprising that one of the hottest selling management books right now calls the issue out, in bold and unapologetic fashion. “The No Asshole Rule: Building a Civilized Workplace and Surviving One That Isn’t” by Stanford University Professor, Bob Sutton, is the hip new read. (Pick it up next time you find yourself in Borders, or stuck waiting for a plane. It’s a great book – and as far as I’m concerned, compulsory reading for any lawyer working in a big firm.) Bullying and Workplace HarassmentIt also shouldn’t surprise you that there’s often a connection between abuse of power and sexual harassment. Bullying is just one form of abuse of power. Bullies demoralize employees, make their victims sick, drain productivity and generally make the workplace a crappy place to be. If it were up to most employees, bullies would be kicked off the island in a nano-second, just to make life bearable again. But employers, for some reason, are not always so quick to act and allow bullies to continue with abusive conduct. High performers often get a free pass. Certain industries (law, medicine and banking in particular) seem more tolerant. And in today’s űber efficient and fast paced culture, lack of basic etiquette and common decency seems to have become an acceptable by-product of our maniacal focus on growth and profit. The good news…. some employers aren’t keeping bullies around. In early April 2007, Starwood Hotels & Resorts announced that it’s CEO, Steven Heyer, was out. The Board explained that Heyer was “very difficult to deal with,” basically citing the “extreme jerk” explanation for his departure. And true to the cliché in these sorts of situations involving high powered execs, there were allegations that Heyer had made female employees “uncomfortable,” suggesting that, he’d crossed the line on the harassment front. (The most detailed article was published by WSJ –subscriptions required). Increasing Legal RiskWhen employer action is not quick enough, others tend to step in. A California court recently all but stripped employers of the “equal opportunity jerk” defense in harassment cases (always an embarrassing last resort for a sheepish employer!) if the conduct, although applied equally, impacts one protected class more harshly than another. (This is very common with bullying behavior that is more intimidating to women than it is to men, and can therefore create the foundation for a gender discrimination lawsuit.) In fact, several states have recently or are now considering anti-bullying legislation. Take Control of Your Bullies!Because bullying damages your business and can easily lead to harassment claims, it’s important to address this rampant problem. Some simple things you can do: - Set conduct and behavior expectations. If your culture contributes to bullying behavior, think about making some changes – even small ones can make a big difference. (A bank I used to work with had a hard and fast rule that employees should not be “called out” or disciplined in group meetings.)
- Senior management needs to lead by example. A well known, high-powered bully needs to be addressed head on.
- In my experience, comp and rewards drive 99% of behavior in most workplaces. Don’t reward bullies – in fact, make it cost to be a bully. (Several clients I work with tie a large component of a manager’s annual bonus to employee feedback from 360 reviews.)
Training is KeyIf you really want to get your message out, training is critical. You don’t need to go overboard on this one though – and you certainly don’t need a stand-alone anti-bullying course. What you do need is a harassment course that thoughtfully integrates the broader concepts of workplace respect and dignity. While employees need to understand the basics of unlawful harassment prevention, not all undesirable and costly behavior is illegal. In fact most of that spite and venom falls into the ubiquitous and category of plain “unpleasant.” And we all know why employees sue. It’s not because of their in-depth knowledge of case law, statutes or employment law treatises. Employees sue because they feel wronged and mistreated. Behind every successful plaintiff, there’s invariably a jerk who went unchecked, and untrained.
Power and sex in the workplace are sometimes black and white. That’s especially true when a romantic relationship is directly associated with a termination or pay cut — or on the flip side, with a promotion and pay raise. Take today’s news scandal about World Bank President, Paul Wolfowitz. Wolfowitz is in hot water because of his involvement in a huge pay raise and promotion for his girlfriend, Shaha Riza. The World Bank scandal is just starting to build, and people are calling for Wolfowitz’s resignation. The Bank’s Board is meeting to discuss the matter, which has ignited antagonism over Wolfowitz’s appointment by the U.S. administration, as well as resentment over his role in the U.S. invasion of Iraq while he was deputy defense secretary. But workplace harassment usually involves much more subtle issues — and is almost always about perception. Do men and women really view the world of work and sexual harassment differently? It’s certainly not uncommon to hear an alleged male harasser say something like “The whole situation has been blown way out of proportion” or “I never meant to harass anyone — it was just an innocent comment — she’s just taking it out of context.” The female employee on the other hand often has a different take on the situation. So who’s telling the truth? An article recently published by Science Daily supports the notion that men and women have very different opinions about sexual harassment. For both sexes, power seems to be a critical component, but men and women differ about who has the power to engage in sexual harassment. Granted, Debbie Dougherty (University of Missouri-Columbia) did a very small study about perceptions of workplace harassment, but the results are still interesting. Dougherty never mentioned the word “power” to participants when she asked them to discuss their views on harassment — but both men and women associated sexual harassment directly to power. And they did it in very different ways: - For women, power and sexual harassment are complex and not linked directly to formal authority. Anyone at any level of the organization who is “perceived as having power” can be a harasser.
- Men see sexual harassment more narrowly. Harassers tend to be those with formal authority, such as supervisors and managers. When sexual harassment happens between coworkers it’s more likely to be a “simple misunderstanding.”
- Although no details were released, Dougherty also states that men and women have different views about the types of actions that are considered sexually offensive.
It’s not hard to make the next logical leap (as Dougherty does). If men and women view sexual harassment, as well as those who yield the power to engage in it, in fundamentally different ways, there is bound to be confusion in the workplace. And where there’s confusion, you’ll find ongoing, systemic sexual harassment. Men may be more likely to say something sexually offensive to a female (especially if they don’t have formal authority), and females are more likely to view it as sexual harassment. Not surprisingly, Dougherty says that her data underscores the importance of sexual harassment training. I couldn’t agree with her more on that point — but I would take it one step further. Training ALL employees is a must in today’s business environment. Not only does harassment training help ensure that employees understand the rules, it also ensures that they are informed about the consequences if they cross the line. And if you’re sued, mounting a defense has become very difficult if you’ve not trained your employees. Most employers today have taken note. Training is no longer a luxury that occurs when the budget is flush — it’s a business essential. A recent poll (of 1500 HR Professionals) conducted by ELT revealed that 50% of employers are now providing harassment training to all employees, not just supervisors. If Dougherty’s research holds true, just offering harassment training that is rooted in legal compliance may not be good enough for your employees. Rather, your training message must be one of respect and inclusion, and should help employees bridge the power gap. Make sure that the training sends the message that prohibited harassment, regardless of the form: - Can occur between coworkers;
- Can occur between employees and non-employees;
- Is not dependent upon formal authority structures; and
- Goes way beyond what is considered illegal.
If your training is sophisticated enough, it will help guide your employees through this maze of interpersonal workplace relationships, send a clear message about what constitutes prohibited harassment, and help employees better understand the true impact of their conduct on others. Training should also address sexual favoritism, and the impact that a consensual sexual relationship between and supervisor and subordinate can have on other employees. We’ll have to see how that issue plays out in the Wolfowitz situation, not to mention the ethical implications of his alleged behavior.
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