March Grabness: Lessons from the (Basketball) Court: Avoiding Personal Fouls, Violations and Time Outs in the Workplace

by Mintz Levin - Employment Matters
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Harassment has long been an Achilles’ heel of the workplace. Believe it or not, like the NCAA’s tournament TV ratings, the number of harassment-related lawsuits has held rather steady since the 1990s!  And like most NCAA tournament games, the workplace can often be fast-paced and exhilarating, but it requires participants to play by the rules and when conduct goes out of bounds, participants must be benched or even ejected.  In this regard, an employer must ensure that it has (1) the right players-personnel; and (2) systems in place not just for a successful season here and there, but for sustainable success over time that allows it to compete for the championship year after year.  So what does this look like?

Building the Right Team

This means more than just constructing a formidable starting five and rolling the ball out on the floor. If that were the case, Kentucky would win every year and the famous Fab Five of Michigan would have one at least once.  But so much more goes into winning.  In the sexual harassment context, it means:

  • Creating a championship atmosphere throughout the company that leads to a John Wooden-like dynasty. When the organization has a top-down winning attitude, its team is much more likely to win. If there is buy-in from the executive team to invest the time and money to create a robust compliance program, then you can expect the rest of management along with the rank and file to put the full court press on stamping out harassment wherever it takes form in the workplace.
  • Having the right leadership in place to ensure that everyone is playing by the rules. That is, do not think of the former Yale Men’s captain who was expelled following sexual assault allegations a month before the team’s first March Madness appearance in over five decades, and instead, do think about a senior manager who sets the tone with respectful behavior towards his or her co-workers and subordinates. This does not mean being too rigid and being unable to have fun (i.e. some of the greatest playmakers are the most fundamentally sound, but they also know how to adjust in midair to pull off an improbable shot). Rather, it means knowing how to act professionally in a workplace environment – including having a good values system and leading by example in treating men and women fairly and appropriately at all times.
  • Hiring the right coach to make sure the plays are being run properly. Thus, do not think of the former Cal Men’s assistant coach who was terminated four days before the team’s first March Madness game last year for violating the school’s anti-harassment policy, but do think of a Human Resource and Employee Relations professional who competently devises and implements appropriate anti-harassment policies and training programs for all employees. They (i) create the plays (draft the employee handbook’s harassment policy); (ii) make sure the players have studied the playbook (by requiring the players to acknowledge that they have read and understand the anti-harassment policy and will abide by it), and (iii) will ensure the players know how to execute the plays properly (by training the staff to understand the policy’s meaning and how to identify and report inappropriate conduct).
  • Knowing when to act as the referee. Again, Human Resource and Employee Relations professionals must know when and how to investigate complaints of harassment to ensure that the rules are followed, and when they are not, to call fouls and other violations promptly, and even escort the player off the floor when necessary. But they also need to know when to let the players play on.

When an organization makes this top-down commitment they often end up with a unified, productive and respectful workforce, just like UConn Women’s Basketball team, which has won more than 100 consecutive games – a truly remarkable feat.

Installing the Right System

And like UConn, effective Human Resource and Employee Relations professionals must have protocols in place to address seemingly intractable problems that require them to be everywhere on the court at once. The challenges are often myriad: How do I install an effective strategy for winning games – for eliminating harassment in my workplace – when I have real obstacles in my path?  What if I have limited resources?  What if management appears more focused on the next product launch than on this important issue?  What if my employees would rather not be bothered reporting inappropriate behavior that doesn’t impact them directly?  Teams deal with these types of challenges all the time.  The star player suddenly goes down with an injury.  The coach unexpectedly gets hired away to another team.  The team gets blown out on their home court to an inferior team, shaking their confidence with a tough schedule ahead.  But great teams always find ways to overcome this adversity.  It’s no different in the office where playing an Olé defense is simply not an option, because sexual harassment can result in costly litigation for employers, as well as reduced productivity, decreased morale, increased employee turnover, and – as the constant drip of news stories demonstrated in 2016 and now in 2017 – the potential for bottom-line impacting negative publicity.

When facing these types of obstacles, one of the easiest things Human Resource and Employee Relations professionals can do to at least get them into the game is to make sure they have a system that ensures effective, up-to-date (i) policies prohibiting sexual harassment (and of course harassment more generally, along with discrimination and retaliation) and (ii) training programs implementing those policies. Let us stress the “up-to-date” part of that last sentence, and ask when was the last time you updated your harassment policies and training programs?  Just as jerseys are retired, policies must be too.  It is fine to remember what was once great, but it’s risky to pretend like it still works ( triangle offense).  Here are a few questions you can ask to see if your policies and training programs are up to date:

  • Does your policy effectively address cyber-harassment, including clearly defining how the use of different types of electronic communications, including specific types of social media, can lead to a policy violation?
  • Does your training program cover the latest trends in social media? For example, do HR and supervisors know what Tinder and other relevant social dating apps are, and further do they know how and whether it is appropriate to communicate with fellow employees on these platforms?
  • Does your policy make it clear to your employees that they can and should report complaints of harassment by co-workers that may occur physically outside of the workplace over social media?
  • Does your training program account for sexual stereotyping even in jurisdictions where harassment on the basis of sexual orientation is not prohibited by law? This brand new case out of the 11th Circuit, Evans v. Georgia Regional Hospital, demonstrates the importance of highlighting this issue during training.
  • Does your training program identify the tricky harassment issues that could arise when an intra-corporate romantic relationship moves from consensual to “complicated”? The fact that two co-workers or a manager and subordinate dated does not serve as a complete defense to a claim of harassment. Just last week for example, in Uyar v. Emre Seli, a Connecticut District Court permitted a post-doctoral fellow at Yale to pursue her harassment claim after her relationship with a superior soured.

Taking it to the Hole

While we figured the craze of March Madness was an opportune time to discuss harassment, this is an issue that employers should be aware of all year round. Employers should take steps to address any deficiencies in their approach to this issue before the clock runs out and they are served with a costly lawsuit.

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Mintz Levin - Employment Matters
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