Many things in life are hard to interpret. The ending of the series “Lost,” the 15-page iPhone terms and conditions I “agree” to, and what constitutes a foul in basketball all leave me scratching my head.
On a more serious note, workplace sexual harassment laws are also difficult to interpret. Even if your harassment policies are intuitive, airtight, and easily understood, interpreting harassment laws associated with those policies can be confusing. In attorney Jessica Childress’ Workhuman Live session, “HR’s Role in Responding To #MeToo,” she explained why this is the case and how HR should respond to ensure the safety of employees and the health of the organization.
As Jessica explained, for actions to be considered harassment under the law, they have to be “so objectively offensive” as to “alter that employee’s work conditions.” What exactly is “objectively offensive”? Also, how can someone interpret whether another person’s work conditions have been sufficiently “altered”?
Well, you really can’t.
Some savvy HR pros or employment attorneys reading this are breathing a sigh of relief. Since many employee claims of harassment, no matter how inappropriate or disgusting, aren’t valid under the terms of the law, what is there to worry about? To that I say, you might want to hold your breath a little bit longer.
Frankly, there is a more significant “HR cause” at play in this scenario than protecting the company against lawsuits. Even if an employee’s actions don’t meet the legal standard of harassment, accepting offensive behavior at any level creates a culture that isn’t healthy or productive. In truth, the highest value any HR team provides is to do precisely that – to develop and protect a healthy, productive work environment.
HR advocates focus on practices over policies
According to Jessica, the best way to create a healthy, productive work environment is to become an HR advocate – focusing attention on daily practices more than handbook policies. These practices should include creating an environment of transparency, creating safe spaces for feedback, and ensuring employees who don’t treat others respectfully are held accountable.
When HR is not an advocate, many employees suffer in silence, unsure where to take their information. Jessica shared that 71% of women don’t report sexual assault and the top reasons victims don’t speak up are distressing:
- Fear of retaliation
- Navigating a “masculine” culture
- Feelings of helplessness, shame, or denial
If you don’t create an environment where employees feel OK to speak up, the company doesn’t have a chance to correct inappropriate behavior quickly. “Even if you win a lawsuit, you will never really win,” said Jessica.
The good news is that there are things HR practitioners can start doing immediately to create a healthy and productive culture. For example:
- Tell interviewees during the recruiting process that your organization supports a culture of respect and inclusion and explain what that means.
- Be transparent internally and externally regarding your organization’s anti-harassment practices and what makes your organization inclusive, fair, and safe.
- Internally, define harassment. Is it actions that are “severe and pervasive” or something much less?
Of course, having solid anti-harassment policies are important and recommended. However, focusing attention on your company’s daily practices, including fostering cultures of transparency, feedback, and respect, creates a healthy environment for all. It is also a much better bet at staving off lawsuits, rather than brushing off your policy book after an event has taken place.
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