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David G. Gabor, Esq. 

 David Gabor is widely recognized as an expert in the area of employment, human resources and business law. He has been called upon to proactively represent clients in litigation, the negotiation and drafting of contracts, handling compliance issues, the creation of corporate infrastructure, the drafting of policies, training of employees and leading companies towards organizational excellence. 

  

 

 

 

The Wagner Law Group

The Wagner Law Group is a nationally recognized practice in the areas of ERISA and employee benefits, estate planning, employment, labor and human resources and investment management.

 

Established in 1996, The Wagner Law Group is dedicated to the highest standards of integrity, excellence and thought leadership and is considered to be amongst the nation's premier ERISA and employee benefits law firms. The firm has seven offices across the country, providing unparalleled legal advice to its clients, including large, small and nonprofit corporations as well as individuals and government entities worldwide. The Wagner Law Group's 31 attorneys, senior benefits consultant and four paralegals combine many years of experience in their fields of practice with a variety of backgrounds. Seven of the attorneys are AV-rated by Martindale-Hubbell and six are Fellows of the American College of Employee Benefits Counsel, an invitation-only organization of nationally recognized employee benefits lawyers.  Seven of the firm's attorneys have been named to the prestigious Super Lawyers list for 2017, which highlights outstanding lawyers based on a rigorous selection process.

 

 

 

Contact Info

The Wagner Law Group

 

  Integrity | Excellence

  

Boston 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

 

Washington, D.C.

Tel: (202) 969-2800

 

Fax: (202) 969-2568

 800 Connecticut Avenue, N.W.

Suite 810

Washington, D.C. 20006

 

Chicago

Tel: (847) 990-9034

Fax: (847) 557-1312

190 South LaSalle Street

Suite 2100

Chicago, IL 60603

 

  

Palm Beach Gardens 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418

   

Tampa

Tel: (813) 603-2959

Fax: (813) 603-2961

101 East Kennedy Boulevard

Suite 2140
Tampa, FL  33602 

  

San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

300 Montgomery Street

Suite 600

San Francisco, CA 94104

  

St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
25 W. Moody Avenue
St. Louis, MO  63119 

 

 

www.wagnerlawgroup.com

 

 

 

 

 

Sexual Harassment Training: The Importance of Emphasizing Perception and Open Communication

 

 

by David Gabor, Esq. 

 

 

 

The second half of 2017 featured a plethora of allegations that celebrities, entertainment figures, and politicians sexually harassed employees and colleagues. It is extraordinarily troublesome that decades after federal anti-discrimination laws were passed, employees continue to face the unspeakable and horrific challenges posed by sexual harassment. Some of the charges were made years after the harassment took place. So what changed and finally empowered these people to come forward? Why did it take so long for them to find their voices? How should existing policies and training be changed in light of the fact that sexual harassment remains a very real problem in our society?

 

 

Employment is a major part of people's lives. In fact, most people spend more time at work than anywhere else, and many often identify themselves by their jobs. Think about the situation of meeting people at a party. Chances are it does not take long before your career comes up in conversation. It is also important to note jobs provide financial security which few are willing to put at risk. People are scared that if they speak up about sexual harassment, they will either lose their job or the opportunity for advancement. This is true not only for people who experience sexual harassment, but also for those who witness it. Far too many individuals believe that employers and co-workers will not look favorably upon someone who reports an act of sexual harassment.

 

 

Recently, I met with a young woman who was uncomfortable because a co-worker was following her in the workplace and photographing her during company sponsored yoga classes. Unfortunately, management's actions made it clear that they did not view sexual harassment as a significant issue. So, she felt she had two choices: (i) bring her complaint of sexual harassment to management's attention and risk certain retaliation, or (ii) leave the company. Because she was the primary breadwinner for her family, she could not risk retaliation that might leave her unemployed. As a result, she did not file a complaint and left the company after she found a new job. In organizations that seem to tolerate harassment, one often hears comments from management that disparage complainers. For example, I have heard prominent individuals in management dismiss employees complaints saying "if you don't like your job you should leave," or "if women are in the workplace, they need to get used to locker room talk" or "she is just being too sensitive."

 

 

The Equal Employment Opportunity Commission describes sexual harassment as unwanted or unwelcomed sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. This includes "quid pro quo" sexual harassment, which typically involves a demand for sexual favors in exchange for continued employment or career advancement. Harassment typically does not include simple teasing or offhand comments. However, such incidents may be considered harassment if they are frequent or severe enough to create a hostile or offensive work environment. This form of harassment is often hard to identify or dismissed as unimportant.

 

 

The United States Supreme Court decided the seminal cases in 1998 regarding sexual harassment - Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. These cases were notable because employers were offered an incentive if they: (1) created and promulgated sexual harassment policies with a complaint mechanism; (2) trained their employees on the policies and complaint mechanism; and (3) promptly investigated complaints of sexual harassment. The Court's intention was for employees to alert their respective Human Resources department so that problems would be resolved at the company level and without the need for judicial intervention.

 

 

In response, employers invested and continue to invest considerable time, energy, and money in creating anti-harassment policies and providing training. While most training programs do a good job of educating employees on sexual harassment and describing complaint programs, something appears to be missing. There are debilitating emotions that derail the entire process...fear and shame.

 

 

Despite many years of preventative training, sexual harassment remains a significant problem. It stands to reason that current processes are not fully effective. If employers continue to use the same approach, it is unlikely that their efforts will have a positive affect.

 

 

What needs to be changed? Supervisors and managers need to be trained periodically to ensure that they recognize sexual harassment, even the more subtle forms, and employees who experience or witness sexual harassment need to be able to express themselves without being made to feel disparagement, fear, or shame. Until these individuals know that management understands the problem and feel safe, they will not come forward and sexual harassment will remain hidden. Problems, when they are not addressed promptly, often escalate.

 

 

How is change implemented? First, management must make a commitment to adopt policies and procedures that give employees who experience or witness harassment a voice. Their concerns must be heard with respect. Furthermore, employees should feel protected from their abusers, and safe from retaliation. Management must demonstrate by its actions that it is committed to creating a work environment where harassment will not be tolerated.

 

 

How is this message communicated to employees? If senior management and Human Resources introduce training programs, then employees are more likely to believe that the organization views sexual harassment seriously. Shortly after completing training sessions for a company that had senior management introduce each session, I received a call from the head of Human Resources. She told me that several employees had come forward about sexual harassment after the sessions. At first, I did not know what to make of her call; was she upset that employees were complaining? Instead, it was to the contrary. The head of Human Resources called to thank me for projecting an environment in which employees felt comfortable coming forward. Their goal was to foster a great work environment.

 

 

The goals of a training session should include gaining trust and empowering employees to communicate with one another in an atmosphere of respect and dignity. Some interactions can and should be resolved directly between co-workers. For example, employees should be able to set boundaries. If employees are able to set boundaries, then some harassment can be avoided altogether and in an amicable manner. However, that can only happen if people are confident that their voices will be heard and that they will not be treated in a dismissive or disparaging manner. They need to also believe that there will be no retaliation.

 

 

Severe harassment, in all of its forms, needs to be brought to the attention of Human Resources promptly. Victims and witnesses need to be empowered to act swiftly and absent fear of reprisal. Employers cannot resolve problems unless they know about them. Employees must have confidence in their Human Resources department and in senior management. Therefore, an objective of training is to build that bridge of trust.

 

 

This is an ideal time to convey the appropriate message to the employees in your organization. Imagine if your organization shifts the message from "training exists to protect the company" to "training exists to protect the employees." How do you convey that message? Do your employees know and trust their Human Resources team? If not, what can be done to help build that trust? Consider the value of creating in-person training as a mechanism to project the culture that you want for your organization. This may help to eliminate the fear that prevents employees from addressing sexual harassment and other forms of discrimination in the workplace. Productive conversations both internally and externally will help revise and refocus the message.

 

Please feel free to reach out to me regarding steps that your organization can take regarding sexual harassment and other developments in employment law and Human Resources. You can contact me directly at (617) 532-8035 or by email at dgabor@wagnerlawgroup.com.  Also, I will be co-hosting an interactive boot camp style Human Resources and employment law training in San Diego on January 18 and 19, along with my colleague, Amanda Scott, the President of Solution Harbor. Together we will be leading discussions on how to refocus the message as well as addressing other important topics. Please click here to learn more about and register for this important seminar.

 

 

 

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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.