Florida Employers: What if There's a Bill O'Reilly in Your Workplace?
04.24.17Just as some business and organization leaders thought that the culture of a diverse workplace thriving on respect and dignity was deeply entrenched, along comes allegations against a well-known name like Bill O’Reilly following allegations against top dog Roger Ailes. While the first response that may come to mind is “Really?” One could assume that no one in this day and age would think that verbal abuse, unwanted advances, or lewd comments are acceptable. A second thought ought to be—“What if I have someone like that in my organization?” So what do you do if you discover that you have such a person in your workplace? Do not bury your head in the sand and think that all is well. Importantly, do not normalize the behavior and accuse others of being overly sensitive.
The 1991 amendments to Title VII of the Civil Rights Act of 1964 that allowed compensatory damages, coupled with the statements made during the Clarence Thomas Supreme Court confirmation hearings, ushered in a heaping helping of sexual harassment lawsuits and settlements. Are we on that precipice again? Let’s hope not! The 1998 Supreme Court decision in Faragher v. City of Boca Raton1 gave employers a road map for avoiding liability in sexual harassment cases. When employers follow the map, unsavory characters are hopefully weeded out and the employer is able to continue building a culture of respect and dignity.
Senior management should be asking--What is the message we are sending? Are we on the same page? When were we last trained and have our policy and expectations been recently reiterated to all employees and managers? Senior management should be clear about the intended culture and should not be afraid to challenge, self-police, and cast off a culture-breaker. So, here’s the pattern and prescription to deal with culture-breakers:
- Have a meaningful and enforceable policy. If the policy has not been reviewed in the last five years, perhaps it is time to test effectiveness. More importantly, in connection with your review of the policy, you need to carefully and objectively review your organization. Walk around the workplace, what do you hear or see?
- Train employees about what the policy means and how the organization will enforce the policy. The trainer should be knowledgeable not just about the law, but also about the organization’s culture. If employees have complained about a co-worker—listen! Supervisors and managers should be on one accord about what is acceptable behavior. If the alleged harasser is the star producer, measure the costs of retaining that employee and the effect on other employees. Investigate what is going on when there is a complaint. When the alleged harasser is a high profile person, consider going outside of the organization for an investigator. It may be very helpful to engage someone who has no skin in the game if harassment truly does exist.
- Enforce the policy. As soon as an exception is made for the “favorite,” you can forget about enforcing it against anyone else, as you will have established a new standard of performance.
- Take prompt remedial action when there is a complaint. Should every harasser be terminated? That will depend on your policies and practices, but recognize that retaining the person may cost in the future. Do not forget about company reputation. Is the “star” really worth it? This is not a time for the human resources professional and general counsel to be job scared.
- Finally, DO NOT RETALIATE. Create a culture of non-retaliation.
The time to act is now. Root out the Bad Boys or Girls! Re-establish the respectful culture. While lawsuits may come, following these steps will allow you and your organization to have confidence that you are doing the right thing.