Jane Harrison

Workplace Harassment – Culture Has Influence

EEOC Select Task Force (STF)

The EEOC has sent out a Select Task Force to study workplace harassment. The members of this task force come from academia, labor, business, and law. They are led by EEOC Chair, Jenny R. Yang. Ms. Yang is the daughter of two Chinese American immigrants who were active in the Asian American community.

What is Harassment – EEOC

The EEOC’s website defines harassment as: “Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information.”
Then it goes on to say: Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

What is Harassment – Wikipedia

Wikipedia states in part: “[H]arassment, which occurs in cases in which employment decisions or treatment are based on submission to or rejection of unwelcome conduct… Workplace harassment may also consist of offensive conduct… that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as being fired or demoted). [W]orkplace harassment is a bigger category that encompasses sexual harassment.”

Reasonable Person Standard

Workplace harassment can also be subjective. What one person views as reasonable, the “reasonable person” standard that is cited by the EEOC as needed to determine if harassment rises to the level of illegality, is not always easily determined. Here’s an example.

Harassment Between Co-Workers of Opposite Sex

Several years ago I was called by a state agency to help with a harassment matter. This matter involved co-workers. There were no management personnel involved in this matter. It was confined between co-workers.

The co-workers involved were one man and one woman. The woman was pregnant and therefore clearly in a protected class. Both were exemplary employees and highly valued by management. The monetary cost from the loss of one of these employees would be huge.

The Importance of Creating an Atmosphere of Trust

Management wisely created an atmosphere of trust for both. The women in this situation was clearly distraught over the harassment. The man accused of harassment was clearly distraught because he didn’t know what he had done.

Both were afraid of losing their job. Management didn’t want to lose them and they didn’t want to lose their jobs.

We had common ground. Never underestimate the power of common ground, no matter how trivial it may seem. In the scheme of things, that we were faced with a harassment charge, finding common ground may seem unimportant. It is this common ground that can lead to meaningful discussion among all parties.

Workplace Harassment – Offensive Conduct

When determining workplace harassment, remember that it can be offensive conduct that creates an offensive work environment. We are a diverse populace. We bring many cultural behaviors to the workplace. We don’t always view these behaviors as offensive.

  • Fox News Sexual Harassment Case Highlights the Need for Effective Sexual Harassment Policies and Procedures in the Workplace

    July 26, 2016

    Workplace sexual harassment has been grabbing headlines lately, thanks to charges filed by former “Fox & Friends” co-host Gretchen Carlson against Fox News Chairman and CEO Roger Ailes. Carlson has alleged that Ailes fired her …

  • Diversity, Employment Discrimination and Inclusion

    September 17, 2015

    Diversity in the workplace, a totally laudable goal, is actually harder to achieve than many employers appreciate, and ill-conceived or badly executed efforts can actually make things worse, opening the door to legal liability.  To …

  • How Businesses Can Fight Back Against Negative Social Media [e246]

    January 11, 2016

    Nasir and Matt kick off 2016 by discussing how one Indianapolis bar responded to a negative post on its Facebook page. Transcript: NASIR: Welcome to our podcast where we cover business in the news and add our …

  • How to Avoid Age Discrimination

    November 05, 2015

    Employee Performance Evaluation If you scan through the national newspapers you will find article after article about managers and supervisors who are agonizing over the behavior of employees. Sometimes this agony is brought about by the …

  • What To Do When Your Amazon Account Gets Suspended [e278]

    September 08, 2016

    Nasir and Matt discuss why Amazon seller accounts are getting suspended and banned without notice and how business owners can rectify this situation through a Corrective Action Plan. Transcript: NASIR: Welcome to Legally Sound Smart Business. My name is …

  • Nine Legal Strategies to Protect Your Brand

    June 25, 2015

    Perhaps you’re never dreamed of a Google or Facebook-sized business empire – multiple products generating multiple streams of income that seem to semi-magically renew themselves. Something a bit more modest might be fine as well. Whatever …

  • State Mandated Retirement Savings Plans

    July 30, 2015

    Twenty-four states and New York City either are or have very recently considered establishing state run retirement savings plans.  Several of these are modeled on SB 1234, the California Secure Choice Retirement Savings Trust Act. …

  • Product Liability 101 for Small Importers

    September 16, 2014

    Global sourcing has lots of exciting potential. The recent entry of Alibaba.com onto the global stage along with others such as the FITA Buy/Sell Exchange, Euro Pages and Global Sources seems to presage a new …

  • The Cost of Converting Independent Contractors to Employees

    October 06, 2015

    While Uber may be receiving the lion’s share of the attention on the topic, there has been no shortage of court rulings, IRS audits, and labor decisions on the issue of workforce misclassification. With a …

  • How Ambassadors Can Ruin Your Brand and How to Deal With Disasters

    January 21, 2016

    The name brand ambassador says it all. Similar to an ambassador for a foreign country, the goal of that person is to represent the brand in a positive light and bring consumers closer to the …

Our pregnant employee was from a culture where women are raised to be subservient. She was very quiet and kind hearted. She entered into an outside workforce after having worked in her family’s business. She had a unique skill that placed her in a higher pay capacity than her co-workers.

Our male employee was from a typical American culture. His family had been in the U.S. for as long as he knew. He had been with this agency for many years and in this particular department since it was first launched. He was exuberant and loved his job.

Preventive Point of Reference Reduces Workplace Harassment

One of the findings of the EEOC’s task force was that a business that addresses workplace harassment from a preventive point of reference reduces workplace harassment. As you will see, harassment to one person is not always harassment to another.

Our Male Employee held our Pregnant Female Employee in high esteem. He had taken time to get to know her. He knew the names of her children, her husband and her immediate family members.

Our Pregnant Female Employee was very fond of our Male Employee. She knew the names of his family members and the foods he enjoyed eating at lunch.

When she became obviously with child – she never announced this as this was not something her culture would discuss publically – Male Employee quietly left a small flower on her workstation with, as she stated, “a very nice blessing for my baby.”

This state agency had a very tight workplace protocol. Their HR department had worked closely with attorneys to craft policy based upon EEOC standards. They then went outside of their resources and into the private legal sector to assess the protocol. They had done everything they could to prevent harassment and yet here it was on their doorstep.

EEOC’s Jenny Yang Understands Diversity of Cultures

So what happened? Jenny Yang would understand. She was raised in New Jersey by Chinese American parents. She was taught of and experienced the diversity of cultures. America is a place where cultures can interact and learn from one another her mother says.

Cultural Differences Intersect

These two co-workers intersected at a cultural difference. Every morning after receiving the lovely gesture of the flower, when Female Pregnant Employee arrived at her cubical, Male Employee would greet her and place his hands upon her pregnant belly.

Taboo of Interaction Between Sexes Can be Cultural and Religious

When Female Pregnant Employee and I met she was thinking of leaving her job. She felt betrayed by a trusted friend, Male Employee. Pregnant Female Employee came from a culture where a female would not interact with a male outside of her immediate family. She had, in her view, violated her cultural upbringing by becoming friends with this man.

She trusted him and had even allowed herself to consider some of the cultural differences as not being something bad. She had begun to think that some of her cultural differences might need to change so that her children would assimilate more easily into the U.S.

Partial Understanding of Culture Can Cause Unforeseen Problems

Male Employee stated that when his “friend” was obviously with child he was elated for her and her family. He knew the importance of children in their culture and the importance of this child being the first born in the U.S.

Outside of telling his wife and family about Pregnant Female Employee’s wonderful news, he didn’t discuss this with any of their co-workers. He knew that his friend would not discuss her pregnancy with other co-workers and he respected her privacy.

After listening privately to both co-workers, it was obvious that the harassment was very real and very unintentional. While businesses are busy defining harassment in its various forms, they often overlook that harassment can be subjective.

When Harassment is Unintentional

Pregnant Female Employee felt violated every time Male Employee touched her pregnant belly. Why was he even touching her? There was clear protocol at this agency that one was to never touch another in a manner that “could be considered sexual in nature.”

To him, and in his very American culture, he was offering this baby a blessing. In touching Pregnant Female Employee, he was in essence touching her unborn child. He wanted her child to feel the love that was awaiting upon birth. To know, as he put it, the strength that growing up around so many different cultures would give.

Harassment Protocol Meets Employee With Vision

Harassment Protocol required that Male Employee be terminated. He had touched another in a manner that caused the other person to consider this touching as sexual in nature.

Management had called in a neutral because they did not think that this case of harassment was clear cut, even though it seemed to be. They wisely wanted guidance for their protocol.

When Male Employee was told of the angst his behavior had caused Pregnant Female Employee, he was devastated. This was his friend. He admired her knowledge. He cheered her position in the department. He considered her a friend.

Pregnant Female Employee, after talking about Male Employee’s reason for touching her, wanted to create protocol that would address cultural differences. She wanted Male Employee to understand that even when your intentions are good, your actions could be seen as harassing.

Giving Culture a Place at the Table

Employers are tasked daily to meet many state and federal mandates. These mandates are for, among other things, the protection of employees, employee safety and the betterment of the workplace.

What Pregnant Female Employee finally helped to draft was a simple statement that said, in part, harassment has many faces that can be colored by each individual’s background and culture. For anyone who “feels in their heart” that they are being harassed, they should go to a supervisor to help sort out any possible cultural misunderstandings.

Working with an attorney, a simple statement was added to the existing protocol. They added to their harassment protocol the possibility of cultural misunderstandings. They created room for the diversity of cultures while proactively protecting employees from harassment through understanding.

Read More