Timothy B. McConnell

1. How to Create a Respectful Work Environment and Reduce Harassment in the Workplace:Questions Employers Should Pose Timothy B. McConnell

2. How Can an Employer Reduce Workplace Harassment? • Prevalent Question in Culture • #Metoo • #Timesup • But has been a recognized claim since 1986 • #Metoo Impact: • Societal Discussion and Focus -- Increased awareness of acceptable/unacceptable conduct in the workplace • Heightened sensitivity about conduct in the workplace -- now more than ever, employees must understand where the line is between appropriate and inappropriate behavior with co-workers • Regardless of your position with the company, there are serious consequences for engaging in bad workplace behavior

3. How Can an Employer Reduce Workplace Harassment? (cont’d) • Savvy employers know: • Must have policy prohibiting unlawful harassment • Publicized • With effective complaint procedure • Should conduct training • Managers • At least train those charged with enforcement • But, studies show that policy + training not effective • Why? • Today’s Presentation – Practical Guidance • Questions employers should ask in trying to “cultivate a healthy and respectful workplace environment”

4. But first, a Refresher • What is unlawful harassment? • A form of “unlawful discrimination,” meaning some differing treatment based upon protected characteristic • The differing treatment creates a “hostile work environment” based upon that protected characteristic • Unwelcome and severe or pervasive conduct • Directed toward another based on that persons’ “protected status” • Race, sex, religion, age, disability, etc. • Including the employee’s “protected activity”

5. Elements of HWE Claim • Victim member of protected “class” (expansive reading in today’s culture) • Harassment based on protected class • Harassment unwelcome and severe or pervasive (objectively and subjectively) • Special elements depending on job title of alleged harasser • If manager and if tangible job action – no defense • If manager and hostile environment – defense • If co-worker – did employer know or should it have known

6. Factors Considered • Is conduct verbal or physical or both? • Frequency of conduct – single incident or pattern? • Patently offensive or “ambiguous”? • Co-worker or manager?

7. Examples • “Leering” • Suggestive touching/hugging • Leaning over – getting in personal space in offensive manner • Inappropriate jokes • Talking about personal sex life

8. Respect and Inclusion What is the GOAL of the law?

9. Questions to Ask • Do employees perceive the anti-harassment policy has integrity? • Do employees perceive the training as merely litigation risk avoidance, or as an attempt at properly cultivating a healthy workplace? • Is the training truly effective or are you just checking the box? • Do employees perceive commitment “at the top”? • What is your organization’s culture?

10. Do Employees Perceive the Policy Has integrity? • Are “important” or “high performers” protected? • Often revealed in the small details, not the “big” complaints. • Do management’s actions inform employees that management cares about their concerns? • Or, are seemingly “minor” complaints dismissed as unimportant • In life we learn the seemingly little things become the big things • Recognizing the moment in the moment

11. Do Employees Perceive the Policy Has integrity? (cont’d) • Investigations play a crucial role • If handled appropriately, best opportunity to not end up in litigation • Address the situation while diffusing it • If you do end up in litigation, be prepared – your investigation will be a focal point

12. Do Employees Perceive the Policy Has integrity? (cont’d) • Enforcement must balance the interests of various constituencies • Victim • Alleged harasser • Other employees • Process itself • Balance under-reacting (management does not care) and over-reacting (complaints potentially can become misused) • Example – what do you do with anonymous complaint?

13. Training – Merely Litigation Risk Avoidance? • Is training for information or for transformation? • Information • Here are the rules and policies • Don’t do that • No wonder training not effective • Worse – here are the rules, obey or we get sued (or you get fired) • Fear-based only (parent example) • Compliance suffers – message could be heard – “cover it up” • Message also – Company cares only about its risk, not about its employees • Not a healthy narrative • BALANCE • Transformation – What are the reasons for the rules? What are the purposes behind policies? • Can our management team articulate those deeper purposes?

14. Training – Merely Litigation Risk Avoidance? (cont’d) Barney Fife or Andy Taylor?

15. Training – Merely Litigation Risk Avoidance? (cont’d) • Barney Fife or Andy Taylor? • Rules are primary (Barney) • Relationships are primary (Andy) • What relationships do the rules really serve? • Analysis can be scary but also transforming • Leads to a more fundamental question: What is our work really for? Is my work only for me? • If Company message is do this for Company’s “bottom line,” then such selfish view is promoted, not rebutted. • Can you have a workplace that recovers the idea that human work is not merely a job but a calling? • Not merely about my own advancement but also about the good of the community in which I serve • Leads to strong “other-mindedness” in our work • Dr. Martin Luther King, Jr.: “Life’s most urgent and persistent question is ‘What are you doing for others?’”

16. COMMITMENT TO EDUCATING YOUR EMPLOYEES A HARD LESSON LEARNED Is the Training Truly Effective or Are You Just Checking a Box?

17. Do my employees perceive this tone “at the top”? • This transformation process can only be accomplished if there is commitment from the very top of the organization. • Each individual is the greatest contributor to the type of workplace he/she would want to work in • And the most influential • Those considered “leaders” • will have greatest impact on cultivating this type of community • But only if actions reinforce the ideals. • “I cannot hear what you are saying because your actions speak so loudly.”

18. What is Our Culture? Self Assessment for your Leaders: • Tolerance • Do you lack patience with individuals different from yourself? • Do you demonstrate a greater understanding and willingness to accept and allow the differences found among others? • Do you make assumptions about co-workers based on their gender, sexual orientation, race, etc.? • Respect • Have you developed a regard for differences found among individuals? • Do you accept one’s culture as a valuable part of their individuality? • Do you talk to your co-workers as equals?

19. What is Our Culture? (cont’d) • Interpersonal Skills • Do you interact with your co-workers in a friendly and professional manner? • Do you tend to maintain a “my way or the highway” point of view? • Are you flexible when others offer ideas and opinions that differ from yours? • Do you take the time to include co-workers in conversations? • Do you notice when a co-worker appears to be uncomfortable with a conversation topic or comment? • Do you say or do anything out of habit that is offensive?

20. Questions to Ask To Cultivate Healthy Workplace - Recap • Do employees perceive the anti-harassment policy has integrity? • (Do we show we care?) • Do employees perceive the training as merely litigation risk avoidance, or as an attempt at properly cultivating a healthy workplace? • (Is our care “other-minded” or “team-oriented”?) • Do employees perceive commitment “at the top”? • (Do our actions as managers/leaders conform to our professed ideals and support our culture?)

21. Thanks! Questions?

22. Timothy B. McConnell (865) 521-2031 timothy.mcconnell@bassberry.com