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Sexual harassment: are you protected?

IT'S CHRISTMAS AGAIN. THE FIRM'S Christmas party is always well attended, and this year is no exception. It's always rewarding to see how man s uses attend. And of course, the executive staff is making its customary appearance.

You are standing by the punch bowl, toying with one of those crackers with little squiggly things on top. The party has been going for almost three hours without incident. Even the annual speeches were brief.

While many of the attendees have started departing the hotel ballroom, the core party group is clustered near the bandstand. Some people are sloshed. Others are perhaps more affected by the mood and revelry. The rhythm of the music has slowed to the strains of a 1960s love song.

About two dozen couples are on the floor. Near the flocked Christmas tree with its little twinkling lights, you spot Ramon dancing with Lucinda. Ramon works in the warehouse. Lucinda works in accounting.

Their slow dance looks a little stiff. As you watch diem, Ramon's hand slides down from Lucinda's waist to her buttocks. She snatches his hand back to her waist, giving him a harsh look and saying something to him.

Everyone knows Ramon is a drinker, and with just a little bit of hooch he gets wild and crazy. Tonight he is daring. Ramon dances every dance. He asks every female, dancing with anyone who will. Ramon's behavior is more aggressive and more obnoxious than earlier in the evening. You've noticed him becoming bolder and more profane. In your opinion, Ramon is clearly under the influence.

As you observe the scene, Ramon approaches Lucinda again-she refuses. "What's the mattah," he slurs. "You too good to dance with me? I'll teach you." Ramon grabs her wrists, pulling her to the dance floor where he holds her tightly and attempts to kiss her on the face and neck. She squirms and tries to fight him, but she is embarrassed and aware that all the others are watching them.

Sexual harassment has been described as costly flirtation or the natural tension between Adam and Eve. Someone has described it as the fun and games of the workplace. But it is not funny when your company has to respond in court to a sexual harassment complaint. And it is not a game when everyone loses in trying to get it resolved.

Sexual harassment is a form of gender discrimination and is illegal in the workplace. During the holidays, every security professional must examine the sexual harassment definition and appropriate workplace behavior standards in terms of corporate liability.

This process requires careful scrutiny of dress codes, work site rules on social conduct, and gift-giving as well as other rites and rituals associated with the holiday season.

The scene above is an extract from an actual case. There are Ramons and Lucindas in every office, plant, and distribution center. Frequently, the Ramons with drinking problems, Harrys with hands problems, Toms with trashy mouths, and dirty joker Jerrys are already well-known to the work force. They are not identified in the orientation manual but are cited in the informal orientation, for example, "Don't get caught alone with Harry in the elevator-he has Roman hands and Russian fingers. "

Admittedly, the stereotypes above are sexist in that they are identified with male names. Be aware that these characters come in female versions as well and can be just as dangerous to the firm's civil rights liability. Not only have some women "come a long way, baby, " but some have gone too darned far.

The employer's contract with each employee ensures each worker access to the rights, benefits, and privileges of employment there. Moreover, the employment contract extends to each employee the right to work in a safe, productive, supervised, discrimination-free, and equitable environment.

While people frequently use the word fair to describe the workplace, it is somewhat of a misnomer and confuses the role and responsibility of leadership in dealing with employees.

For instance, the firm's commitment to equal employment opportunity (EEO) provides the right for everyone to be recruited, hired, and advanced based on three criteria: merit, ability, and potential. Obviously, we don't all have the same merit, ability, or potential.

Under the equity provisions, employers must identify bona fide, job-related selection criteria to prevent capricious selection of females for clerical positions or males for warehousing positions. Such gender bias is illegal.

Affirmative action principles are undergoing revisions in the courts. Generally, the employer must make a special effort to provide EEO for females, ethnic minorities, and the disabled to establish parity between the corporate work force and the available labor force. This is a strategic effort to eliminate the consequences of systemic and systematic forms of discriminatory practices.

Sexual harassment is always a form of gender discrimination. It is unwanted and unreciprocal sexual behavior directed toward someone who is not in the position of accepting, rejecting, or correcting the behavior without paying some consequence.

For instance, if Lucinda had responded to Ramon as if she had been molested on the street, her fellow peers may have taken her side or they may have subjected her to jeers and ridicule. Her correction was lost on Ramon, who was too tipsy to understand the nonverbal messages. And although you noted her saying something to him, it unclear what the message was. But you are certain Ramon's behavior was unwelcome based on her nonverbal language.

In most states, the unwarranted and unprovoked act of touching another's anatomy is probably defined as assault and battery. In the workplace, what standards do employers have to restrict such unwarranted or unprovoked intimate touching?

Frequently, in sexual harassment complaints filed with the employer, additional complications of age and race discrimination exist. Research studies have found that women are twice as likely as men to experience sexual harassment. When they identify the behavior, it is frequently from older males, males in the same racial or ethnic group, and from males in positions of authority over them.

From these studies, sexual harassment has been identified as a power behavior expressed sexually. Whether originating with a supervisor or from a peer (such as Ramon), the individual exhibiting the offensive behavior has the ability to either elevate or subjugate the victim, depending on the response.

Additional research concludes that more than 60 percent of the complaints are based on comments, jokes, or innuendos of a sexual nature. Organizational science recognizes sense of humor as being essential to an individual's survival and growth in a working group. Recent research from Bowling Green State University in Bowling Green, OH, has found that workplace humor has become more sexist (and sexy), more racist, and more aggressive than ever before in our culture.

Workplace behavioral models are shifting. Behavior that once was totally unacceptable became tolerated during the 60s and 70s. Through the 80s those tolerated behaviors established new community norms and in some work groups are now most acceptable. Vulgarity, dress, social encounters, office decor, and exercise of authority are just a few realms in which norms have changed.

The motto of a company may well be " You gotta go along to get along. " Previously, work taboos restricted some behaviors informally although there was little or no written policy to reinforce them. "Don't mix business with pleasure" or "Don't get your tail where you get your mail" and other sayings more graphic placed a limit on misconduct.

More recently, employers have relied on bitter experience and court rulings to reestablish a code of conduct that provides personal freedoms for the employee without abdicating or compounding the liability of the employer.

A Department of Defense contractor had a painful lesson when a terminated employee returned in a "fatal attraction" episode. The gunman killed seven employees, wounded 29 others, and destroyed the second floor of corporate headquarters. The contractor had acted properly and yet still paid a price when an obsessive, deviant individual entered the facility in pursuit of a female victim.

Chase Manhattan Bank was faced with the fallout when two of its managers broke up after having an affair. When the affair was over, the female identified the other partner's behavior as retaliatory and discriminatory.

Should employers forbid employees to date and fall in love? Of course not, but when the behavior affects the workplace, it jeopardizes the safety and well-being of others and damages the employment contract of equity.

As the holiday season nears, you as a security manager should review the company's history of holiday behavior to date. Do the rules slip a bit? Is alcohol brought onto the premises? Are the parties and celebrations compromsing the integrity of the security plan? Are supervisors adjusting their leadership style to allow employees to do their own thing? Are the vacations of executives and managers allowing some mice to play while the cat's away? Are standards for attendance, tardiness, production quality, and workplace safety being compromised during the holidays?

It is time to gather your security team together, including the personnel director, to evaluate the possibility of sexual harassment and other compromising events that may spoil your holiday spirit. It may be time for managers to have a training update to distinguish civil rights violations from bad business behavior and prohibited personnel practices (inappropriate conduct but not necessarily discriminatory under Title VII provisions).

The legal framework directs the employer on how to handle complaints and investigations. According to citations extracted from the federal guidelines, Section 703 of the Civil Rights Act of 1964 as amended, employers are to examine "the record as a whole and the totality of the circumstances such as the nature of the sexual advances and the context in which the alleged incidents occurred. Determination of the legality is always made on the facts, on a case by case basis.

The employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct unless it can show that it took immediate and appropriate collective action. "

Employers are directed to emphasize prevention as a strategy for eliminating sexual harassment. The federal guidelines offer the following five strategies:

n Raise the subject affirmatively.

n Express strong disapproval.

n Develop appropriate sanctions. * Inform employees of their right to raise and how to raise the issue of sexual harassment. * Develop methods to sensitize all concerned.

This is not a one-time or sometimes strategy. The guidelines hold the employer responsible for the acts of supervisors, coworkers, and even nonemployees where the employer can exert some control over the encounters.

As you begin your protection strategy and enlist team members to support the strategy, you will face predictable opposition. These levels of opposition are consistent with all the other rulemaking and policy pronouncements. You will find employees who immediately understand and adapt their behavior; others who grumble and moan for a time and then adapt; and still others who drag their feet, complain, and test you until hell freezes over.

MANY YEARS AGO ELISABETH Kubler-Ross, author of On Death and Dying, identified five stages of adapting to the loss of a loved one. Today, these are widely accepted in the management community as consistent with any change. While severity and visibility may vary depending on the type of change involved, the process of grieving for the old and being reluctant to accept the new is consistent. The first stage is denial: "I can't believe they are trying to tell us what to do in our personal lives. I will date whom I want-it's none of their business. " And that is true until the dating/ mating behaviors affect the workplace. The second stage is anger. This stage is typically accompanied by rebellious and disobedient behavior. The employee tests the system and your ability to enforce the rules. When inconsistent enforcement occurs, the employee is convinced that the rule is silly. Measures must be taken to stop defiance of authority.

The third stage is bargaining or negotiating. This is probably just a whisker behind the anger stage because of the testing behaviors. Stories (the majority is gossip) will undermine your sincerity unless all managers make it clear that the rules of conduct will be enforced.

The fourth stage is depression, which is signaled by a quiet and lethargic period. This stage allows people to adjust their conduct and their workplace (take down posters of scantily clad individuals) and find new ways to interact with coworkers and decorate work spaces. This isn't as hard as it seems, but many employees will feel it is grossly unfair.

The fifth stage is compliance or acceptance. And this is the goal-voluntary compliance with the terms and conditions of employment, which includes following the rules for safety and security of the work force and workplace. if individual employees find they cannot comply, they are free to resign or accept the disciplinary consequences of noncompliance.

One manager approached me at the conclusion of a workshop and said, "This isn't so hard, is it? It just seems like common sense. " In some respects I would agree wholeheartedly. Unfortunately, some employees are not gifted with common sense, and some managers get easily buffaloed by them.

Remember Ramon and Lucinda? What was the problem? Could it have been predicted and prevented? Does it meet the legal definition of sexual harassment? What should you do? When should you do it? When should you involve Ramon's supervisor? Are your company's supervisors aware of what you expect of them concerning this topic? When should you talk with Lucinda? How and when should you speak with the observers of this aggressive display? Does your corPOrate policy give you adequate instruction on and authority about what to do? Who else needs to be involved from your security team? Are they trained to do a proper investigation? Can you win in court if it goes that far? Can you prove you acted in a responsible manner to serve and protect the rights of the victim and the alleged harasser? The answers to these questions are at the core Of your risk management program.

As you prepare for all the gifts, memories, joy and fellowship that the holiday season provides, be secure in knowing that the Ramons of your organization won't be giving you the gift of a lawsuit at your Christmas party. It is one memory that will last a lifetime-and decorate your career and reputation. About the Author . . . Iris McQueen is a management consultant, speaker, and author in Citrus Heights, CA. She has written three books on sexual harassment, including a comprehensive investigator's guide. For more information, write to her at PO Box 1003, Citrus Heights, CA 95611-1003.
COPYRIGHT 1990 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1990 Gale, Cengage Learning. All rights reserved.

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Author:McQueen, Iris
Publication:Security Management
Date:Dec 1, 1990
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