Updated: Thursday, December 28, 2017, 2:22 PM
When Philadelphia lawyer Deborah Weinstein counsels men accused of harassing women at work, she’s often asked: How do you know something you’re about to do or say will be unwelcome?
Weinstein said there’s no “bright line,” so when she’s conducting anti-harassment training, she gives this guide: “If you would not like to see yourself covered by the news media doing what you are about to do or saying what you are about to say, that would be the line.”
Companies across the country are grappling with how to define, police, and prevent sexual harassment in the workplace as the #MeToo movement has resulted in powerful men being accused of sexual misconduct nationwide.
But what’s the best way to do that?
Should companies develop a “zero-tolerance” policy that prohibits everything from sexually charged jokes to penis pictures, or should they establish a hierarchy of sins with proportionate responses? How should they distinguish between romantic relationships and sexual misconduct? And is there potential for overcorrection, where a company creates so many rules that it begins policing everything down to the manner in which employees hug each other?
Alyssa Kovach, an employment lawyer and an associate at Duane Morris, based in Philadelphia, said that in the last several months, she’s heard from more clients than ever before who are seeking advice reevaluating their sexual harassment policies. That appears to be a trend. Major companies like Microsoft, Facebook, and NBC have recently revisited, altered, or publicized their sexual harassment policies, while government entities, media organizations, and other institutions are reviewing how they respond to complaints.
“Right now, the sexual harassment topic is forefront in all employers’ minds, as it should be,” Kovach said. “I think everyone just wants to make sure they have a policy in place that meets the legal standard in this new era, where there’s really sort of a limelight on sexual harassment.”
Some say that in the midst of the #MeToo movement, society shouldn’t rank which traumatic experience is “worse.” Sen. Kirsten Gillibrand (D, N.Y.) said cataloging bad behavior is “the wrong conversation.” The actress Minnie Driver told the Guardian that “there is no hierarchy of abuse” and “you cannot tell those women that one is supposed to feel worse than the other” in response to comments the actor Matt Damon made, referring to “a spectrum of behavior.”
Others — to some criticism — say that not distinguishing between verbal harassment, groping, and rape is detrimental to the #MeToo movement itself. New York Times columnist Bret Stephens wrote that a zero-tolerance approach “may sound admirable, but it’s legally unworkable and, in many cases, simply unjust.”
Human resources professionals and employment lawyers in the region say there isn’t a blanket sexual harassment policy that works for every company. While zero-tolerance policies can work if the behavior that’s not tolerated is spelled out, they say, employers should think more about how they’ll respond to accusations of sexual impropriety and how that response might differ based on a number of factors.
Kovach said she counsels employers to recognize a continuum of behavior, “both vertically and horizontally.” She said the vertical continuum is based on the severity of the complaint. The horizontal one considers other factors: Who is involved? Is this the first complaint against this person? And if there were previous incidents, what were they?
She added that it’s possible for employers to discipline anyone who engages in any kind of sexual harassment while also responding proportionately. For example, a bad joke or a hand up a skirt would merit punishment, but in different degrees — so long as the approach is fair to both sides.
Heather Herrington, a partner at Haddonfield-based Ritigstein Law and a board member for the Philadelphia chapter of the Society for Human Resource Management, said she’s experienced an uptick in clients asking for counsel in developing stronger sexual harassment policies. Her advice? Keep policies consistent companywide.
“When something arises where an employee feels they’re being treated differently than someone else because a rule is being applied differently,” Herrington said, “that’s where companies can find themselves subject to lawsuits … or ending up with a disgruntled workforce.”
That’s especially true as more women are coming forward to report harassment in the workplace, and men are asking: Am I a harasser, too? A New York Times/ Morning Consult poll released Thursday showed that in a survey of 615 men, a third said they did something at work in the past year “that would qualify as objectionable behavior or sexual harassment.” One in 25 men surveyed self-identified as a harasser.
For harassment to violate federal standards, it must be “severe or pervasive.” But that’s not enough for employers working to create an environment where women feel safe and respected. Dee Yingst, a human resources consultant with Pennsylvania Chamber Insurance in Harrisburg, said she’s heard from more employers in the last several months asking about how best to implement a sexual harassment prevention strategy. She said employers should develop a sexual harassment policy that’s broad and then explained staff-wide.
“You can put out a policy as often as you want, but until you sit and talk to people and help them understand,” she said, “the policy doesn’t help you.”
Some human resources professionals and employment attorneys are concerned about “overcorrection.” NBC recently issued an anti-sexual harassment policy in the wake of Today anchor Matt Lauer’s firing, stipulating employees could be fired for not reporting coworkers’ behavior and even spelling out how to hug a colleague — “you have to do a quick hug, then an immediate release” — an anonymous source told the New York Post.
Weinstein, who founded The Weinstein Firm in Center City, said that she’s seen “a lot of overcorrecting,” and that companies should “exercise good judgment in making these decisions so that people really understand that they will be treated fairly.”
Michael G. Trachtman, president of the Powell Trachtman law firm in King of Prussia, said that when responding to accusations of sexual harassment, there’s potential for the pendulum to swing too far in favor of either the accused or the accuser.
“No one is well-served by treating a sexual assault or a quid pro quo, sleep-with-me-or-you-get-fired situation [the same as] someone who incessantly asks an employee out on a date,” he said.
What employers should do, Trachtman said, is establish a sexual harassment policy that goes beyond the legal definitions. He added that company policies should also cover consensual romantic relationships, expressly prohibiting relationships in a chain of command where one person has direct authority over the other.
That, he said, is “horribly dangerous” and should be distinguished “from a workplace relationship among people in different departments or not in any sort of supervisory relationship.” If a consensual relationship between two people in a chain of command develops, Trachtman said, many companies will work with those individuals to transfer one person elsewhere, if possible.
Yingst said employers must respond to sexual harassment, but avoid over-policing because “fear is not what you want your employees to feel while they’re at work.”