Episode 55 – Zero Tolerance: Preventing Workplace Harassment

Welcome to the TRSA podcast. Providing interviews and insights from the linen, uniform, and facility services industry. Most Americans might not realize it, but they benefit at least once per week from the cleanliness and safety of laundered, reusable linens, uniforms, towels, mats, and other products provided by various businesses and organizations. TRS a represents the companies that supply, launder, and maintain linens and uniforms. And in this podcast, we will bring the thought leaders of the industry to you.

 

I’m your host, Jason Risley, and thanks for joining us for another episode of the Linen Uniform and Facility Services podcast, interviews and insights by TRSA. On today’s episode, we’ll tackle an important human resources topic, preventing harassment in the workplace. Joining us to share her expertise in this area is Melanie Shawn Helm, the Corporate Director of Human Resources at Crown Healthcare Laundry Services. She began her HR career at Hallmark Cards as a corporate training manager and has worked for several Fortune 500 corporations including the Coca Cola Company, Mobile Oil, General Motors, and Huntington Ingalls Industries before joining Crown Healthcare. Her career has allowed her to have leadership responsibilities in many HR functions including employee relations, learning and development, succession planning, benefits management, and labor relations.

 

Hope everyone is having a wonderful day. The program on harassment and retaliation in the workplace, for those of you who are in HR, you understand that it is an annual requirement for any federal contractor that people in leadership positions, your supervisors, your managers, your general managers, etcetera, are required to attend a minimum, depending on the state, of a 1 hour program. In some states, it’s a 2 hour program. And we’re gonna talk about harassment prevention and training for leaders. And you think you might think, wait a minute.

 

I thought this was just about discrimination, or I thought this was just about retaliation. And, actually, all of those are encompassed in this program today. We’re gonna be talking about all of those items. We are going to cover the having a policy and a procedure for all harassment and enforcing it. So we’re going to talk about what are some basic components of what that harassment policy needs to have, What are the various forms of harassment, and how does the law govern our businesses and industries?

 

And then what is sexual harassment? How does that differ from other types of harassment? Why is it important for you and I and everyone in our workplaces to prevent harassment? What the national harassment judgments and what a national harassment judgment and disruption to your company, can happen and and how you handle that when it does, and what it can mean to a company and why we want to prevent everything like that from happening to begin with. What retaliation looks like, what it feels like to the person it’s happening to, and how we respond to that when it comes into our our path.

 

Either an employee directly reports it to you or they report it to your HR team, etcetera. Your respond and then your responsibilities as an employee of your company. So this isn’t just about, you know, what happens in my company or what TRSA wants us to do. This is about what is critical in your role within your own company. So what are we required to do as leaders?

 

We’re required required to enforce the law. We’re required to educate our employees about the laws and about our policies and procedures. So harassment and the law. So there’s basically three laws that govern most of what we’re responsible for in terms of discrimination and harassment. The one we’re probably most familiar with is Title 7.

 

It’s a very, very famous, very, most important law that we have as a country regarding civil rights, and that it came about in 1964. It has been amended on, several occasions and had different components added to it in terms of protections. But basically, that is our Civil Rights Act. The next one is the Age Discrimination in Employment Act that came about a few years later in 1967, which protects employees who are age 40 and over from being discriminated against in employment. And there’s also some actually that also protect people from discrimination regarding education.

 

And then the last piece, the most important that we have is the Americans with Disabilities Act, which was first enacted in 1990, and then it was amended or updated, in 2008, which talks about what we need to do to encourage open discussion with Americans who, who may have a disability and how we can potentially employ them with that disability and make accommodations. So those are basically the 3 laws in terms of harassment and discrimination. So in term we talked about the fact that if you don’t have a policy, you wanna have one. And so I thought the easiest thing to do is rather than share with you, you know, different aspects of policies, is to kind of give you the bullet points of things you want to make sure that you cover in your harassment policy. The first one, and it’s most important, is that discrimination of any kind is prohibited.

 

That that there’s nothing within your organization that will tolerate an individual being discriminated against. And that also harassment of any kind is prohibited. And we’re going to talk about what those different kinds of harassments look like and feel like and how those are prohibited. And that there are other inappropriate behaviors that are are prohibited. You as a company, it may not be protected under a law, but you as a company may have other specific issues that you believe are inappropriate behavior in a workplace that you are going to enforce as a company.

 

The mandatory reporting procedure, that we hold all employees accountable for reporting. Often, we think it’s just the person who’s being victimized or who is the having it happen to them. If you see it, you must say something. We want to, as a company, have a part of our policy talk about the mandatory reporting procedure. Now in addition to that mandatory reporting procedure is that that person who reports it has to be protected from retaliation, whether they’re the victim or whether they are the observer of the activity.

 

And so we have to have a that, retaliation or any kind of retaliation is prohibited. K? And that your vendors and your customers are also prohibited from discriminating or harassing or retaliating against any of your employees, and that we put them on notice as well. And that’s actually required under the federal law if you are a federal contractor of any kind of any size. So those are some basic things that you want to look for in terms of having your harassment policy written.

 

So what are some types of workplace harassment? So there’s disability based harassment and, a horrible story. And I will you will notice that I tell stories throughout my presentation. I I think we learn better from stories than we do from, you know, reading an article or, you know, reading a a slide on the screen that that talks about different things. So there, my son is disabled, and when he was in high school, he was on a task force to prevent bullying.

 

And, one day he came home and told me that a young high school student who was in a wheelchair, he was a quadriplegic, that my son came upon him and there was a group surrounding the wheel chair, and they had picked the wheelchair up and were tossing it up in the air and catching it, and tossing it up and catching it. And he, obviously, he stopped what was happening, and he got the, you know, the principal and those in charge to handle it and take care of it. But that would be a disability based harassment. Clear and simple. That would be probably the most one of the more profound ones that we could and horrific ones that we could possibly imagine.

 

But there are some other disability based harassments that can happen. You know, someone who signs or someone who reads lips, and we turn our backs on them to communicate so that they are shut off from that form of communication that they can understand could be a disability based harassment. And sometimes it might even be innocent. It may not even be unintentional. So we have to be very intentional with how we treat people so that we are not offending or offensive to someone else.

 

Gender harassment. We are now, required to protect and, all gender based individuals that work for us. And we have to make sure that we follow the laws and the policies regarding them, whether it is bathroom accommodation, whether it is, clothing accommodation, that sort of thing, all needs to be followed. Online harassment. You know, sometimes as employees, they, you know, will get online and they will make comments, And if it could be done during the work environment, and that means, you know, you also are responsible for ensuring that that doesn’t happen.

 

Physical harassment, psychological harassment, religious harassment, excuse me, and sexual harassment. Racial harassment and sexual harassment. And that all of these are protected, whether it’s, making inappropriate comments, whether they’re racially motivated, or whether they are religiously motivated and and negative towards someone’s religion or whether they’re sexual harassment. We’re gonna go into each of these in a little more detail. Sexual harassment can happen male on female, female on male.

 

It can also happen without basis of gender. It can happen female on female or male on male. It is all treated the same in terms of sexual harassment. Any, touching that is inappropriate or uncomfortable or unwanted or unwarranted is something that could be classified as a workplace sexual harassment. I like to talk about this next one, offensive pictures, and tell a story here.

 

I had a a situation in a previous company that I worked for where hunting was a huge deal. You know, when I mean, people literally took off the 1st week of hunting season every year, and it was often hard to staff the the workplace because everybody wanted to take off for that opening of hunting of deer season. And one of the employees came back from their hunt, and they had a proud photograph of their kill, skinned, hanging for the bleed out as their as their screensaver. I kid you not. I can’t make this stuff up.

 

And now you might think, well, that’s not offensive to me or, you know, that’s not, you know, a female who’s not dressed or a male that’s not dressed probably. How is that offensive? So offensiveness is in the eye of the beholder of what a reasonable person, and those are really key words in a lot of what we talk about today, of what a reasonable person would expect. And so it was actually complained about as being offensive, and the employee was asked to to take it down and to remove it. Now he was very, he he was very apologetic.

 

He he had no intention to offend anyone. But sometimes we think about putting something up in our as a screensaver, and many companies have policies against it. Actually, the company that I’ve been with had a policy against it, but it still had been was still often done. But, anyway, always think about what your screensaver is at work and whether or not that might be offensive. Offensive jokes.

 

We’ve all been in a situation where there’s been an uncomfortable joke that has been told, And it doesn’t matter whether it is, hysterically funny or not. If it’s offensive in any way to any person that a reasonable person remember that that those keywords, reasonable person might find offensive, then it can indeed be considered. Assault. 1 of the things that comes to mind all the time to me is if anybody has ever watched NCIS, I love it. I love the old show of NCIS, and I probably used to watch the New Orleans one as well.

 

But if you recall, the main character on there, Mark Harmon, who plays the plays Gibbs, I believe is his name, frequently slapped the backs of the heads of his male employees. I never saw him do it to one of his female, special agents, but he did it to the to the males. Now he you know, one could say that he did it in a, you know, a loving manner. It was, you know, it was supposed to be funny or it was supposed to be, you know, get real, whatever. But it really and and indeed, it’s assault.

 

And so sometimes when I see those things on TV shows, I think, oh, good heavens. I hope that none of my managers think that that’s okay to do in the workplace. So assault, an assault can also be slapping someone with a towel. Right? Snapping it at them, slapping them across the legs or the rear end or the head, whatever, can be assault.

 

So we always wanna be be aware of what that can look like. Sometimes we think of assault as just being what happens in in a back alley or in a parking lot at night. And the reality is is that we have to make sure that assault doesn’t happen in our own workplace. And then, ridicule, making fun of someone, Maybe for how they smell, maybe for how they are able to dress, maybe for their hair, how their hair is cared for. Any of those kinds of things just don’t belong in the workplace and can be considered harassment.

 

And then intimidation, Probably one of the silent killers of employee morale is the is intimidation and as harassment in the workplace. Demeaning someone, ridiculing them, being overcritical of their work product when you accept it from someone else, physically intimidating them, all of those kinds of things. So that you can see that the laws protect a variety of activity that we all have to be aware of. Some caveats, that I want to go over in terms of harassment. It can occur in a variety of circumstances, but not necessarily limited to the following.

 

It can be the victim’s supervisor. It can be a supervisor in another area. It can be an agent of the employer. It can be a coworker, or it can be a non employee. K?

 

It could be someone who’s a temp employee. It could be someone who and they’re considered a non employee. It could be someone that comes onto the property at lunch, can be a harasser. And the victim does not have to be the person harassed, but can be anyone affected by the offensive conduct. And sometimes we only think about harassment happening if it has some sort of monetary effect.

 

Right? That it’s got to have an economic injury to that victim, that they’re they lose their job or they are demoted in pay or things like that, but that is not true. It can occur even without economic injury. Now one of the things I wanna go back to in terms of the agent of the employer, I wanna tell a story. Agent of the employer.

 

So you have vendors that come on into your facility. You have vendors that come into your facility to check your water, to check your chemical balances, to, deliver new linens, to, check you know, maybe do some major repairs on equipment that your own maintenance people are not doing. It can also be your copier person who comes in to service your copiers. And I actually had a situation in another company where an employee came to me shortly before. We knew the copier was not working, and we knew it had been called in for repairs.

 

And the employee came to me, one of my employees said, I really would like to leave the area before that vendor comes, that copier vendor comes. And I said, you know, why? And and, she said, because he constantly bothers me, and he makes lewd comments to me. And I don’t want to be around when he arrives. And she was in a cubicle area, not facing where the copier was.

 

And so, of course, I gave her permission to not be there. Actually, I think we moved her desk for the you know, we just moved her laptop, moved some of her, you know, her work and everything, and moved her to another area. I knew I wasn’t gonna be done with him that day. I know it was because it had been reported, and I had a responsibility to address it. And so I did actually address it with that agent, and, and then also with his employer.

 

I reported it to his employer. Remember, it’s not just who you have as employees. It’s anyone that you allow into your facilities. What is considered to be sexual harassment? So offering benefits.

 

I’ll drive you to work every morning. I’ll pick you up every morning if you will have sex with me. I will pick you up every morning if you will have sex with me on the weekends. Or I have to be able to come into your apartment and, be around you while you get dressed or things like that. All of those are offering benefits.

 

You know, and you may have employees who transport each other back and forth to work. They may not all have vehicles. I will tell you that our policy is that supervisors do not drive employees because it puts them into a position that is far more compromising from a sexual harassment standpoint, and it puts the company in a much more problematic situation than if it was they were just coworkers, even though that’s still not allowed. If it’s unwanted, if the employee has said, stop, I do not wanna go on a date with you, I’m not interested in dating you. Any form of stop, pushing their their arm their you know, your arm off of their shoulder that’s unwanted, any of that, if it continues, is cons could constitute sexual harassment, threats.

 

If you don’t have sex with me, I’m going to fire you. For a previous employer, we actually had a case that, went to the EEOC and was settled, but a group of women were threatened by a manager if they refused to have sex with them. And, they happened to be all temps. They were a temp they were from a temp agency, and so the temp agency was also named in the in the complaint because both the temp agency, as well as the employer where they worked, had been notified. Visual conduct.

 

You know, making lewd, visual comments. I guess they’re not comments, but making visual, demeanors towards someone, whether it’s rolling their eyes or raising their eyebrows or, you know, whistling, any of those kinds of things, any kind of visual conduct can be considered harassment. Verbal conduct, what they say to the person, you know, you really look hot in that those tight jeans today, John. Because remember, sexual harassment works all directions. It’s not just male on female.

 

It’s it’s, male and female, female on male, male on male, female on female. And then any physical conduct in terms of touching or getting in their physical space, you know, getting up really close in their personal space inappropriately. There is always room to have space between 2 employees. They shouldn’t be in close physical conduct where they make the other person uncomfortable. What is sexual harassment?

 

Unwelcome sexual advances, requests for sexual favors. This is, you know, under the law. This is how it’s written. Other verbal, written, electronic, or physical conduct of a sexual nature that affects an individual’s employment, unreasonably interferes with his or her work performance, or creates an intimidating, hostile, or offensive work environment. And those are pretty low thresholds to have to meet in order to be considered sexual harassment.

 

So someone who, texts an employee, that is, you know, verbal communication of a textual, you know, in a text. It’s written, it’s electronic about things that they want, things that they are, commenting on. Any of that can create an intimidating workforce. And I’m sure you can all tell me and think about situations where you’ve had an employee actually come to you and say, I don’t feel comfortable coming to work anymore. I’m so intimidated by how they follow me or how they track me with their eyes that it’s a very uncomfortable situation for me.

 

They may even be asked to move. I don’t, you know, I don’t wanna be around them, and we’ll talk about that in a little bit later. Because there’s some things, of course, that you have to remember when you move a victim versus remove the offender after an investigation. Two forms of sexual harassment are the is the quid pro quo. You may have heard that phraseology.

 

It is Latin, this for that. So or something for something. So if you do this for me, you get to keep your job. Or if you do this for me, I’m gonna give you that promotion you want. Or if you do this for me, I’m gonna give you more overtime than someone else is gonna get.

 

All of those are forms of sexual harassment. If it’s you doing this for something else. Or a hostile work environment. In the same particular case that happened at a previous employer, the, male manager, would follow them around and and do unthinkable things while they were trying to do their jobs. That’s a hostile work environment.

 

So I kind of covered this already. The tangible work employment action is against that. It may involve monetary loss or it may, may involve a change in their job. And any of those things that happen can be considered a quid pro quo. For instance, Yvette receives a smaller performance based pay increase than other employees with similar performance because she refused to go on a date with her supervisor, Marcus.

 

That would be a quid pro quo. Hostile work environment, speech or conduct that is and this is this is a legal definition, say, we wanna remember these kinds of words when we think about whether or not it meets the criteria or not. Speech or conduct that is severe and or pervasive enough to create an abusive or hostile work environment. If an employee if something happens between 2 employees and the employee and the employee who’s offended says, stop. Don’t ever do that again.

 

And the offending employee said, I am so sorry. I I apologize. I absolutely will never do that again, and they don’t. Is that pervasive? The answer is no.

 

The government looks for what is pervasive. However, it says and or severe and or. If in instead, what that employee did was so severe that it was could on its own, was considered to be enough to create a hostile work environment, it would stand on its own. Okay? In addition to speech and or conduct, a hostile work environment occurs covers explicit or suggestive items that are emailed, texted, electronically provided, or displayed in the workplace.

 

You know, if an employee has a video of the of themselves and their boyfriend or their girlfriend that they decide to share with other employees in the workplace, in a in a situation that would be considered explicit, that would be considered to be a hostile work environment if we don’t stop it. And that’s why we we have to stop it. That’s our job. You might say, well, what does that got to do? You know, they did it on break.

 

You know, they did it out in the parking lot. Right? That’s not doing the work. They’re not interrupting work. That’s that has nothing to do with the with the qualifications of whether something is considered to be pervasive or severe enough to be considered a hostile work environment.

 

Because who would want to go out in the parking lot if it was happening in the parking lot? Right? Wouldn’t matter. So kind of already touched on this, who can commit sexual harassment? Employees at all levels.

 

So it does not have to be a supervisor on a on an employee below them or in another department. It can be an employee at all levels. Employees at all levels. Customers or vendors at all levels. If we had a customer that that did this, you know, exhibited this behavior in our workplace, it would be critical that we handle it as well.

 

And then obviously, it can be members of the same sex or opposite sex. And who can be a victim? Not just the individual it’s happening to, but also bystanders or witnesses that are not directly targeted. So we have a big job, don’t we? You know, in terms of what we have to make sure we are are, protecting our employees and our company and our company, because it’s all of our jobs to protect our company as well for many of it.

 

And if we protect our company, we are protecting our employees. And if we protect our employees, we’re protecting our company. So either way you wanna look at it, it benefits the organization as well as the individuals that are working there. So when an employee reports sexual harassment, what do we do? One of the things that so often happens, sadly, and is one of the things that is I hear often if it in in organizations that I’ve been in in the past, is that they went to someone else first before they got to human resources.

 

And they often will tell me, they tried to dismiss it. They said that I was just imagining it and that I was being oversensitive. I mean, you may have heard all of these things yourself. That is the worst possible approach you can make towards diffusing that employee and their concern. Because what we want to do is we want to handle these situations internally in our own organization rather than have to deal with them with the OFCCP, Office of Federal Contract Compliance, or with the EEOC, or with, you know, a private lawyer if they choose to sue privately.

 

All of the above can happen. So it’s better to, you know, demonstrate your willingness to hear and objectively discuss the complaints, whether they’re and it doesn’t mean that you’re admitting that you believe them or that they are that the person they’re accusing is guilty. It is all about the sensitivity of paying attention and listening because you want to diffuse the emotions so that you can get at the facts and handle the situation most expeditiously and most appropriately for the employer, as well as for the employee who’s complaining. So whatever you do, don’t try to minimize it or explain it away. If you are a supervisor or a manager or a president of a company, if you are informed of a complaint, you need to report that complaint to your human resources department.

 

If you don’t have a human resources person or a human resources department, contact your outside counsel and let them know so that they can give you the best advice to in terms of how to move forward. I will always tell you that you take handwritten notes. Please do not record conversations with employees. They are discoverable. If you record it, it will be discovered.

 

It’s just the bottom line. If you take handwritten notes, your lawyer can potentially protect those handwritten notes as a work product. Okay? I don’t type my notes up. My employees do not type their notes up.

 

We take them as handwritten notes. I will tell you that I do not write down my questions before I interview an employee because I have found, and it’s it’s basic best practices, is that when we start writing down questions, we focus on the next question we wanna ask and get answered, and we stop listening to what they’re telling us. There may be a a very slight piece of information that comes forward in what they say that is far more important than that next question we have written down on a piece of paper. And we wanna make sure that we get that next question asked and have them explain in more detail what they just told us, than focusing on the next question that we’ve got written down on a pad. Okay?

 

So preparing for your investigation is critical. Take the time to do it properly before you begin, and then make sure that when you are talking with the employee that you are listening and you’re taking notes. And and wait for them to you can write notes in the margin. Like, if you’ve got questions, maybe you don’t wanna interrupt them right in that train of thought that they’re going through. Or maybe they’re very emotional at that moment.

 

You don’t wanna interrupt them. Write your questions on your paper in the in the margins so that you can go back to it. That way, I always know when they said something, I wanna go back and follow-up with that particular, question. Even if they tell you, I don’t wanna report this to HR. What did we talk about in the very, the second slide 3rd slide?

 

It says that your policy is going to include that you have a mandatory reporting of all complaints. And so you are responsible for reporting it. And here is why. It’s not so much about protecting the privacy of that one employee. You may only know about what that one employee is reporting to you, but HR may know that they now have 3 complaints about that that other employee.

 

Maybe they weren’t able to prove it on the other two complaints, but they but they had belief that it was probably happening. They just didn’t have enough evidence to prove it. So now having this 3rd case brought forward may be what they need. So what you might have as information is just what you have, and that’s why you have to go to HR. Okay?

 

If it’s after HR hours, although you will find it in in our organization. I take calls 247. I know that my regionals take calls 247. You may have, you know, you may have that sort of relationship that you want your you want reporting done. You may have a hotline.

 

Some of the companies out there may have a hotline where the employees are allowed to call in and report an incident on an eight hundred number, and then you would get the report the next day. If you do receive a report after hours, and you want to notify HR, the best thing to do if you can’t reach them by phone is to email them with as much detail as possible. Make sure that you include the employees’ names and any contact information you have. There are employee hotlines that allow an employee to report anonymously. That’s different than an employee coming forward directly.

 

I can’t control if somebody calls in as an anonymous call. I will tell you that when I have used anonymous reporting agencies, 800 numbers, One of the things that I was able to always do is let the reporting person know, through a response system, that I needed more information. I can only complete an investigation based upon the information I have and what I made there able to gather. And so the more the more specific information I have, the better off the investigation will be and the outcome will be for them. Tell the employee that confidentiality will be respected as much as possible.

 

We cannot promise confidentiality in order to investigate fully and properly. That doesn’t mean that I, you know, sit down with the accused and say, you know, Sally Jones or Tim Smith said that you did this or this or this. There are very effective ways of getting an employee to tell you about their behavior that you can evaluate against what you were told by the person. In other words, where were they? What were they doing?

 

Why were they there? You know, kind of the who, what, where, when, and how that you go through that without having to necessarily divulge the employee’s name. Sometimes I even say I have had employees report that you did this to another employee, and I don’t tell them. Even if it was the the the employee that came forward, I will say I’ve had other employees report this, sir, so that I don’t have to involve the employee’s name specifically. There are ways to to do it.

 

And then assure them that it will be investigated completely and that you will get back to them. One of the things that we often forget is our responsibility to let the employee who reported it know the outcome. That doesn’t mean that you say, oh, by the way, when you reported Tom Jones, boy, we fired him. Yeah. We did the investigation.

 

Boy, he’s fired. He’s never going to be allowed to work here again. That is not information that you have to share or or can you share? Okay? That is confidential.

 

What you can say is, we appreciate you coming forward. We’ve taken all the information that you provided. We have conducted a thorough investigation, and based upon that investigation, we have responded to your report and handled it appropriately. That’s all you need to say. They’re going to know whether the person is still working there or not.

 

They’re going to figure it out, so you don’t have to tell them. But and it’s not your role to tell them. The other thing is, is that sometimes we don’t have enough information to make a determination. And those are some of the hardest investigations that anybody ever has ever does, is you may have a gut feeling. You may have, you know, almost an overwhelming sense of who you believe.

 

There’s a credibility factor that you actually can use when you’re doing an investigation. If you’re a if you’re a seasoned investigator and you want to be careful with that, whether you infer your who you believe, because it’s based on evidence and the overwhelming, set of evidence, even if it’s not conclusive. In those instances when I can’t prove that someone did what they were alleged to have done, when I meet with the alleged victim to let them know that while the investigation is completed, we were not able to validate beyond the scope of the investigation. Beyond reasonable doubt is not what we do as an as a HR team or as a a company owner. That’s not our our our scoring mechanism, is that based upon the information was provided, we were not able to make a determination.

 

And that and I always tell them, it has nothing to do with whether I believe you or not. It’s that I am not able, at this time, to determine the decision that your what you reported occurred. However, I will tell them, if anything additional happens in the future, I want you to come to me immediately, and I will reopen the investigation. And a situation happened that in a previous employer, and by the way, when I say previous employers, I really do mean previous employers. I’m not.

 

These are real things that that happen in my world. I added a a 28 year employee manager, a high level manager. Actually, he was the same level I was at the time. And he had been accused of sexual harassment by a female employee who’d been there for a while, and I was not able to completely prove her statement. I believed her, but I could not prove it.

 

So two things happened. 1, I have a very serious harassment policy that they are then required to read aloud to me. And if they are not able to read because of education or, you know, any kind of disability, I read it to them, and it’s fairly long. And then they have to sign that they understand what was read to them or that they read and they date it and it goes in their personnel file. And that becomes the line in the sand.

 

May not have been able to prove it today, but you’re on notice. You can’t tell me you didn’t know you couldn’t touch someone or you didn’t know that a picture could be offensive. The reason that you have them read the policy is not to demean to demean them. There actually was a court case for wrongful termination where the employee who had been doing the harassing policy of that pump company was to read the policy, but they didn’t make them read it out loud. On the stand, the employee said, well, yeah, they they told me to read it, but I never read it.

 

I just skimmed it. And it was thrown out. The the so the wrongful he won the wrongful termination based upon that one piece that he’d been required to read it, and he hadn’t. So that’s why in my practice, we always have them read it aloud or it’s read aloud to them, if I’m concerned at all. And I always ask them, what would you prefer?

 

Nobody likes having to read aloud, me included. I might prefer to have someone read it regardless of my education or my ability to read or my not having a disability in terms of reading aloud. But always go back and let those employees know. Those 2 employees were separated for a period of 2 years. I’ve told you I would talk with you about moving the employee who is the alleged victim versus the manager or the employee who is doing the harassing.

 

Here was a situation where she the the the victim, the alleged victim, asked to be moved. So we went through all the process. You know, I told her that, you know, under the law, she did not have to be moved, that he would be moved, and she really wanted to be moved. And so we drew up an agreement that she signed that she wanted to be moved so that she couldn’t later come back and say, you know, you discriminated against me under a sexual harassment by moving me from a situation. 2 years later, this gentleman this man’s manager, director level, said, I have got to get him back into his role.

 

We also moved him too. We did move we did remove him from the area. I need him back in that role. It’s been 2 years. There’s been no other incidents.

 

He’s been with the company for, at this point, 30 years. Can we move him back? So I went to my EEO officer, and she said, yeah. I’m I’m okay with moving the him back and and moving where, you know, and moving her if she needs to be moved. But you need to have conversations with both of them and let them know that the line hasn’t changed in terms of what’s going on.

 

And so I did. I met with him, and I met with her. I wanted to meet with her to let her know that he was being moved back so she wouldn’t be surprised, when he showed back up in the area. And within a month, he was at it again. But this time, she had evidence.

 

And I finished the investigation, and he was terminated with 30 years service. And I had his office searched probably within an hour of her report. She knew exactly where the picture was, and and we found it. I guess my point is that sometimes it takes a while to resolve a situation, and don’t ever feel bad about that as long as you have done a very thorough job in your original investigation. If an employee comes you know, if you you might say, well, in my company, I want my employees to go to their supervisor, and they need to follow the chain of command.

 

And and that’s absolutely acceptable in a a work process requirement. But if they want to bypass the chain of command regarding sexual harassment or or or retaliation, they absolutely cannot be stopped. They need to and you can’t be offended. Even if it has nothing to do with you, don’t be offended. Let them go to who they feel comfortable going to.

 

Making sure that you do not engage in any retaliation against an employee. Oh, you know, Tom was upset because, you know, we celebrated Sally’s birthday, and we didn’t celebrate his. So I guess we better not invite him to the lunch we’re gonna have for Lisa’s birthday. K? That’s retaliation.

 

Any kind of separation, any of the kinds of things that you might do to inhibit their ability to work in an environment that they were hired to work in. I need you to be available for interviews and provide as much information as possible. I always tell the people that I’m interviewing, I may not ask you the exact question correctly. I mean, because you may have information that I don’t have, but this isn’t, this is not a game about what you know and what I know. This is a process in which you have to tell me what you know.

 

And so our requirement in terms of our company policy is that you be completely honest and truthful and forthright with information that you have. And avoiding interviews is is usually a a red flag for those of us in my profession. And also allow any of your employees, of course, to be available for interviews. You notice I haven’t used the word investigation, but I talk about interviews. We are not the police.

 

We are not the FBI. We are not the NCIS. We are individuals who work for the same company, regardless of our title, who need to be cognizant of always doing what’s right for the company. So your responsibilities as leadership of an organization. Once an investigation has been completed, if disciplinary action is to be taken, work with the human resources to make sure that it has happened and that the victim is not adversely affected, that the sexual harassment stops and does not reoccur, and that retaliation does not occur.

 

And I will tell you that that that particular case, even during the 2 years, every once about every 30 days, I would for the first probably 6 months, I followed up with the female and asked how they were doing. I checked in to make sure they were okay. And the reason that we do these things as employers is because if it ever went to court, the things that we wanna make sure that we can say in the defense of our company is that we took every action that we could possibly take to protect the employee, to ensure that the company that the that the employee was not being affected anymore. And the reason those things are important is if a case, heaven forbid, is decided against the company, those things are what your lawyer uses as mitigating factors to mitigate the damages. So it’s not just that you do it because it’s the right thing to do, although it is.

 

You also do it for the long term that, heaven forbid, something should ever go to court, that you have done things that provide your employer a means to mitigate the damages. Why is it critical to prevent harassment in our workplace? I’ve alluded to some of these already. Harassment harms us all. You don’t wanna see it happen to someone you work with.

 

You don’t wanna see it happen to anyone that’s a friend, right, that you see it happen to, it harassment harms everyone. Discrimination harms everyone. It does not benefit any person ever. The most important part of corporate values is to ensure that all employees are treated with respect and dignity. I tell my team all the time that if all of our, if we all treated everyone with respect and dignity, none of us would have a job.

 

And it’s the truth. There would be no need for my team if everyone was always treated with respect and dignity. I mean, well, we’d have to do, you know, payroll and benefits and things like that. But we wouldn’t have to do the employee relations part of our responsibilities. So making sure that people always are respectful and treat someone with dignity.

 

I had an employee one time who was brand new to the HR field. He’d been in safety, but he had made the change over to from safety to HR. And I had him sit in on a a termination of a high level engineer who had had done something egregious. And at the end of the termination, or sometime later that day, he met with my my manager, asking she was asking how things were going and how he was liking his new role. And he said to her, when that person was fired, he thanked Melanie.

 

He said, how I was blown away. He actually thanked her. And the reason that he thanked me was because of how I treated him in the process. Remember also that whether it’s harassment or discrimination or a termination from the behaviors that lead, you know, the the behaviors that lead to termination or discipline, is that person goes home. They go home to a family.

 

They may go home alone. They may go home to a spouse that they’ve got to tell them that they just lost their job. They may have a medical condition that is pretty serious, and now they’re going to wonder what they’re going to do in terms of providing health insurance for themselves, that is still a human being, no matter how egregious their behavior was. And you will find that that even in the situations that absolutely disgust you, that treating somebody with dignity and respect will also protect your company from additional litigation about how that employee felt when they left when they were removed from the premises. Engaging in or condoning or not reporting is in direct conflict with company values.

 

So it’s not about policies. It’s about the values we want to have in our organization in terms of how we treat people. Right? We also why is it critical to prevent it? We have to remain in compliance with Title 7 of the Civil Rights Act, which prohibits sex discrimination, including orientation and gender identity or expression.

 

We want to remain in compliance with the ADA and the ADEA for Age Discrimination Employment Act or for the Americans with Disabilities Act. All of those are things that we have to remain in compliance with. And they’re also and I I haven’t mentioned this a lot. Some of you may live in states that have even more stringent laws than our federal laws. And you are bound by those federal laws as well as the state laws, whichever are greater.

 

So for instance, if you’re doing business in California, if you’re doing business in New Jersey or New York or Ohio, you may have far more compliance hurdles that you have to get across and face in terms of state laws or or local laws. Why is it so critical to prevent harassment in the workplace? So there’s liability for the employer for civil or federal or state litigation. The company is always responsible for harassment by a supervisor that results in a tangible employment action, such as hiring, firing, promotion, demotion, changes in pay, benefits or work duties that are either discriminatory in practice or, you know, are quid pro quo, any of those kinds of things. The company is responsible for those if a supervisor or a manager does them.

 

If the harassment does not result in a tangible employment action, in other words, the hiring, firing, pay, demotion, etcetera, we as an employer may still be liable unless we can provide we can prove the 2 following pieces of information, that we exercised reasonable care to prevent and properly correct any harassment. So I talked about earlier that, you know, mitigating. Right? We talked about mitigating. So this is one of those reasons why you wanna do it.

 

That I went back and I talked with that employee once a month for, I think it was at least 6 months. I reached out to her and to find out how she was doing. That I have a policy that we you know, that your company has a policy that has zero tolerance. That’s an employment action that if exercised reasonable care to prevent and properly correct any promptly correcting harassment, an employee unreasonably failed to take advantage of your company’s complaint policy and procedures. They absolutely, categorically refused to cooperate, and you documented it, and you got a statement from them.

 

Now we’ll talk about statements just briefly here. I am not a big proponent of taking of statements, and I know that it’s very typical in our size organizations that that’s what we do. Sometimes it’s the only thing we can do to get something in a timely manner committed to paper. The problem is that we take that piece of paper that has a statement on it, and we never ask them any questions about it. And they may say on there last week, 2 people in shipping ridiculed another employee, and I was a direct witness.

 

Okay. Oh, good. We’ve got it in writing. We’ve got that, you know, statement. Well, who was it?

 

Where was it? What time was it? Who else saw it? We’ve missed all of the the hooves and the hows. And so we have a statement that is so empty, it might as well not have been written.

 

So what we wanna do, if your policy is and your practice is to take statements, then I wanna make sure that you understand you wanna go back and fine tooth comb through those statements and probe with that employee who wrote it every question that you have, any piece of missing information. How do you know that they said it? Oh, well, I was standing 10 inches from them. Oh, and what was it that they specifically said? You said that they said a harassing statement.

 

What was it that they said? Alright. So at the very most, it is only getting on paper that someone heard or saw something. That’s it. It’s our job within an organization, whether you’re in HR or whether you’re in management and you don’t have an HR department or whether you’re the owner.

 

It’s your job to make sure that you take the actions required to make sure that you have protected the company. Here’s the one that everybody always forgets about. You are also potentially liable, and And I’m not talking about the owners of the company, although they certainly are. But many state nondiscrimination laws define the employer to include the supervisors, the managers, or the officials. So guess what?

 

You’re probably sitting there thinking, well, so my employer has to hire me a lawyer. Guess what? You are on your own. If you have been named in a suit regarding discrimination or harassment or retaliation, chances are your employer, your employer’s law firm, outside counsel, internal counsel, doesn’t matter, is going to say, we are absolutely not providing that person with a lawyer. And they have to to to prove that they have removed themselves from bias in terms of what is is happening.

 

So I don’t know about you, but I truly can’t afford to hire a lawyer. So if I do nothing more than follow the rules and policies of the of the government as well as my company’s policies and practices. It’s so that I don’t have to hire a lawyer. I’m not a big fan of lawyers. My employees can tell you that.

 

Increasingly, these companies’ individuals face an individual liability risk because many suits contain those state law claims. It’s not just New York or New Jersey or California. It’s many, many states contain those. So one of the things that when we look at policies and they’re, you know, they’re 3 pages long, and they’re bulleted and numbered, and they’re they’re full of a lot of legalese, probably, that our lawyers wanted us to make sure we’re in that policy on harassment and retaliation. And so I always tell our our managers and our employees that the policy in two words is 0 tolerance.

 

1. Don’t do it. Not acceptable. And so if you remember the the the four words, dignity, respect, and 0 tolerance, basically have mastered this. So what is retaliation?

 

It’s an unfair this is again, we get into the legal this is the legal termination terminology, excuse me, for retaliation. It is the unfair or inappropriate treatment against an employee for raising their hand. In other words, I want a report that I that I saw this, and now you take you are taking it against me. Maybe they reported a violation of law. Maybe they reported a violation of policy.

 

And now all of a sudden, they’re getting shunned, or they’re getting the worst schedule possible, or they’re being told that they can’t have their day off that they wanted, that they were hoping to have, all of those things are considered retaliatory and unfair or inappropriate treatment for raising their hand to report the misconduct. Or and and one of the things also that we often don’t touch on, but also safety or quality concerns. Do not retaliate for someone who reports a safety concern or a quality concern. Those have to be taken just as seriously. Safety, of course, can involve, you know, danger to human life or limb.

 

They a quality concern can impact your customer, impact your ability to keep your your standards and your certifications. So those are things we want employees. You know, we want employees to communicate with us, retaliation for filing the complaint. And you know what? It doesn’t even matter if the complaint was totally unfounded.

 

I had an employee one time who filed a complaint. I gotta kid you not. I can’t make these things up. Because one of the other employees in the department only brought in enough cupcakes for part of the department. Now that employee paid for them.

 

They were not of a supervisor or manager. Actually, why they had bought them was that we had just decertified a union in that department, and they were having a department meeting that governed the the, group of employees that had decertified. And on her own volition, she stopped at the store and brought in cupcakes for the meeting where they were gonna be announcing that we had decertified the union. But you know what? She can give cupcakes to whomever she wants as long as she doesn’t do it in a discriminatory fashion in the workplace.

 

There are gonna be complaints that are not legitimate. There are going to be complaints that are not that are you will consider to be a waste of your time. Please don’t ever think that because somebody has come forward, whether it was just that their feelings were hurt. They came forward and they communicated. You want them to communicate so that when there is something that’s serious, they don’t feel intimidated about coming forward.

 

I have had employees who have been who do not speak English as their primary language, and so they bring someone with them who can translate. That person who’s assisting in making the complaint is every bit as valuable to you as an organization as the person that it allegedly happened to, and we want to make sure that we don’t retaliate against them. Oh, they’re a troublemaker. They they speak both languages, and so they’re just a troublemaker. They speak both languages, and so they also will hear things that you need to know, that you might not know if you retaliate against them.

 

You want them to, per you cannot retaliate if they participate in an internal investigation. They may be of one of those people on the line that we interviewed. Right? That’s all they were is on the line working. We can’t retaliate against them for come for participating in that internal investigation.

 

They also sometimes will come forward and ask an ethics related inquiry. You know, I know that Tom has had COVID last week, and he was out last week. And he’s back today, and he’s not wearing a mask. I thought our policy was that you had to be masked for 10 days. And and so that’s an ethics related inquiry, possibly, in terms of what your policies are within your organization.

 

And what might be the answer is that you’re right. The policy is that we mask for 10 days from the date they first were exposed. So they may have been exposed 5 days before they actually were sick, and the CDC counts those days as part of the 10. So you kind of have to there might be an ethics related, you know, inquiry. So let them ask that because when they ask it, ask them why.

 

Why are you you know, they might ask you about gender, or they might ask you about FMLA or something like that. Ask them what you know, why why are they asking? Is there there must be something else that’s going on that that’s leading you to ask that question, and I wanna help you as much as I can. So welcome that conversation and that communication. What is retaliation in the legal verbiage is the unfair or inappropriate treatment against an employee for raising his or her hand, which we talked about.

 

And an activity is protected if it’s made in good faith, even if it’s not substantiated, and even if it’s made by a poor performer. Because that’s the other thing. Right? The only ones that report anything are the ones that are poor performers or have lousy attendants. Right?

 

There this is once again, dignity and respect. Doesn’t matter what they’ve done in the past. They have come forward. And so we we meet them right there in that in that event. Okay?

 

Who knows? Maybe by listening, we’ll actually get them to improve their performance or their attendance. We can certainly hope so. Speak up. Let your manager know and follow-up to see if it was reported.

 

Oh, how many times I’ve had people say, well, I reported it. It’s not my fault that they didn’t do anything about it. Yes. It is. Yes.

 

It is. Let your manager know. Follow-up to see if it was reported. If you don’t think it was reported, let other leadership in your plant or your business operation know, and follow-up if it’s been being handled. Let HR know, and follow-up if it’s being addressed.

 

Let your corporate HR department know or your corporate senior management know. And if it needs to be anonymous, that’s fine. If it’s more important it’s in this situation, it’s more important that it get reported and be followed up on than whether or not you feel comfortable saying that Erica Smith reported it. But give as many once again, give as many details as possible because investigating a blind lead is so difficult. And if it continues or starts again, report it again.

 

And your company, you probably have values and mission statements. You may even use these in your sales presentations with your customers that you’re negotiating contracts with. Make sure that you are fostering an environment of open communication, that all employees are expected and and to or to report and to report misconduct, whether it’s ethical, whether it’s unsafe work condition, or any other concern that they might have, and that your company, where you work, regardless of your job title, use your company strictly prohibits any form of retaliation against any employee who in good faith voices a concern, makes a complaint, reports misconduct, reports an illegal act or violation of company policy or procedures, or provides assistance during that investigation. Know and comply with your company’s policy and procedures. Report.

 

Cooperate with investigations, and then support the victims. You know, don’t isolate them. Don’t shun them. Treat them the same way that you treated them the day before or before you knew anything. 2 of my favorite words, dignity and respect.

 

You know, you can all make a difference. 0 tolerance. It’s all you have to remember. For more information on human issues impacting the linen, uniform, and facility services industry, sign up for the 3rd and final session of TRSA’s Safe Space series sponsored by Strategic Insight Partners and TRSA’s Diversity, Equity, and Inclusion Committee. The final session in the series will take place on November 3rd and is titled How to Cope Through Stressful Times.

 

For more information and to register, visit www.trsa.org/events. If you liked what you heard on today’s show, please subscribe, rate, and review our show on Apple Itunes, Google Podcasts, and Stitcher. For the latest news and information from the linen, uniform, and facility services industry, subscribe to our newsletter, Textile Services Weekly, and our monthly print publication, Textile Services Magazine. Additionally, don’t forget to follow TRSA on Facebook, Instagram, LinkedIn, and Twitter.