Sexual Harassment Claims – Cain and Penn State Sounded the Alarm

As an HR consultant who investigates and trains employees on sexual harassment issues, I keep a Google Alert for new “sexual harassment” articles that hit the web. In the past, this usually resulted in three to four notifications a week. Since mid-November, I’m getting emails regarding 8 to 10 new reports A DAY. I can’t keep up with all the stories. Police departments, schools, restaurants, rec centers, even a Dairy Queen in NC – all getting slapped with harassment lawsuits. And it isn’t just relegated to the U.S. – reports are popping up from across the globe from Italy to India.

So what happened? The Herman Cain and Penn State stories collided in the internet ether and caused a re-emergence of an issue that had been lying dormant.

Most of us had learned of this issue in 1991 during the Clarence Thomas Supreme Court hearings. A brave lady by the name of Anita Hill came forward and issued testimony regarding now Justice Thomas’s antics in chambers with his staff. Questions began to surface regarding what was appropriate in the workplace. Family newspapers actually printed the word “pubic” for the first time as we learned that the courts looked at a “reasonable person standard” to determine if certain conversations would be considered “sexual in nature” by reasonable people. Everyone discussed whether Thomas’s discussion of that hair on the soda can would be considered “sexual.” So we talked about it, laughed about it, Thomas made it to the Supreme Court anyway, and we started dozing off.

Then, in 1998, we were jolted by two cases before the Supreme Court (yes, Thomas was sitting right there). Combined, these cases became known as the Ellerth Faragher defense, or the Affirmative Defense, for employers. In my non-attorney layman’s terms, the cases basically led to the recommendation to employers to start getting their act together to prevent sexual harassment (and other forms of illegal harassment, too, for that matter): (1) Write a policy (2)Don’t hide it and let it gather dust – actually TRAIN employees – that means managers and non-managers – what it means. (3) Make sure that everyone knows what to do if there is a complaint – where to go, what to say (4) Start an investigation promptly, separating the parties when necessary to make sure that the harassment stops immediately and (5)After the investigation, take the necessary corrective action. Then, in the event of a lawsuit, that employer can come forward and say, “But your Honor, we did everything we could to make sure that there was no sexual harassment in our facility. If the complaining party didn’t come forward – how could we know this existed?” So, MANY (unfortunately, not all) employers got their I’s dotted, t’s crossed, trained staff…… and fell back to sleep.

Over time, the line we drew in the sand started slipping. People were just happy to have a job and didn’t want to make waves. Training money was scarce, so we didn’t always do our annual training. New managers came forward and weren’t trained, old ones forgot. Yawn….

Then the Herman Cain allegations came up and at the same time we felt the jolt of the Penn State molestation claims. The alarm bells are ringing again. Those who feel they have been harassed suddenly remembered they have a right to work in a place free from sexual harassment. Now managers and HR professionals are running around fighting off the fires of new claims. Lawyers are smiling. Policies are being reviewed and rewritten. The WORLD is outraged.

Can we please make sure that we don’t fall asleep again this time?

Working on Thanksgiving – It Blows

Have you taken the time to sit back and look in awe at how our communications are changing due to social networking? Anthony Hardwick of Omaha has figured it out. Twenty years ago, when Anthony himself was only 9, adults who were unhappy with their conditions of work had three choices: complain to the boss, quit their jobs, or grin and bear it. This month Anthony exercised his fourth option: he started an online petition to get the public involved.

Anthony has worked at Target for three years and was none too pleased when Target notified all employees that they had to report to work at 11 p.m. on Thanksgiving in order to be ready for the start of Black Friday at midnight. He now has over 200,000 signatures on his petition to protest the extended hours. So is Anthony a genius? A Moron? The wind is blowing both ways on this one.

The Wind Blows One Way – Anthony is a Genius
Anthony didn’t want to work Thursday night. Thanksgiving was the anniversary of when he proposed to his now fiancée. Because of all of the unwanted publicity, Target says Anthony can have the day off. Mission Accomplished! Maybe all of his whining about turkey, mom, and family values will send a message to retailers.

The Society of Human Resources Management (SHRM) released the “SHRM 2011 employee Job Satisfaction Survey Report” this month which reveals that 38% of the participants felt that their job satisfaction depended on a “flexibility to balance life and work.” Work/life balance is nothing new, we’ve been discussing it in HR circles for decades. What has changed is that with the X and Y generations, there isn’t just a quiet request, these groups demand it. Anthony falls right into these groups.

One other issue that maybe shows either Anthony’s intelligence or perhaps his dumb luck is the recent interpretations of social media and disciplining employees. The National Labor Relations Board has stated in several opinions of late that if an employee complains through social media regarding the conditions of employment (in his case, hours of work), then the employer cannot terminate him for exercising his protected concerted activity. Of course the OTHER part of that is that he is supposed to complain to the employer or with other employees. I’m not sure how Anthony started out – was his petition to the world or to employees? A good attorney could probably argue either way if Target tried to terminate him. Target won’t – millions of people are watching. It would be horrible public relations.

The Other Direction – Anthony is a Moron
What kind of person who works in retail expects to have Black Friday off? Or at least expects to not have to report in the wee hours of the morning to be ready for the shoppers? Retail employees have had to endure this routine for decades. Yes, the start time IS creeping forward, but should we really feel sorry for him? At a time when 9.1% of the country is without a job, Anthony is bellyaching because he has to report to work? Cry me a river.

Retailers are hoping that THIS year will be the one that brushes off the dust of the economy and starts the arrows on those charts going up again. Target, Macy’s, Best Buy, Kohl’s, and Wal-Mart are all trying to give those arrows a little added fuel by starting the sales earlier. Is Anthony really smart to be putting his employer in a bad light because of this? Anthony:
Bad PR = reduced sales = reduced profit
= reduced need for your complaining sorry ass
Target may not be able to fire you specifically for the 200,000-person petition you created, but you can bet that if the layoffs come, they will draw the line right below the three years of service mark so they’ll be sure to scoop up your name in the discard pile.

So What’s the Bottom Line?
If shoppers are so aghast that Target and similar retailers are opening earlier this year, they can simply refuse to shop until Friday morning. It will be interesting to see how many boycotters there are. NEXT year will these stores decide to vote for mom and apple pie and not open so early? My bet is that this petition won’t change a thing.

And Anthony – if you are wanting to stay home on Thursday because it is the anniversary of when you proposed to your now-fiancée, I have some advice for you: Hurry up and marry the girl already. One year anniversary of an engagement? If you wait another year, she’ll be shopping for something else on Black Friday 2012 – a new boyfriend.