As a result of the “great awakening” in 2017 with regard to the persistent and pervasive nature of sexual harassment (and worse), responsible employers are doing even more to prevent and respond to sexual misconduct. As we all know by now, no industry is immune.
Of course, women can harass men and there can be same-sex harassment. But, in the vast majority of cases, high profile or otherwise, it is a man of power inflicting professional, psychological and/or physical harm on a woman or women.
But now many men now feel they are the ones who are at risk. Afraid of being the target of false allegations or of being misconstrued, some men are simply avoiding women at all costs.
Avoid “at all costs” risk is not limited to Wall Street. Again, no industry is immune!
The risk was not unforeseeable. To the contrary, it was quite predictable as I noted in my article for Bloomberg in 2017.
While we should not coddle men (or women), we need to address the anxiety that some men feel. Otherwise, where leadership is male dominated, women ultimately may pay the price in terms of lost opportunities and employers may lose the benefit of their talent.
What can and should employers do?
1. Be more thoughtful on messages in training and otherwise.
Messaging matters. More specifically, for example, make clear:
- Harassing behavior will not be tolerated, even if not “bad enough” to be illegal. But avoid “zero tolerance” messaging which may be heard as suggesting any infraction is cause for discharge. This is not the case but may provide further fuel for avoidance.
- Every complainant will be treated respectfully; every complaint will be treated seriously; no deference will be given to the power of a person engaging in bad behavior, etc. But do not say “victims will be believed.” The negative implication for the accused is obvious: “I will have no chance to defend myself.” Foreseeable reaction: avoid those who may create this untenable possibility. Plus, the fact is not every complaint is true (or as alleged).
- The absence of a bad intent is not a defense to bad behavior. But don’t go as far as to suggest that an employee’s perception (impact) alone determines whether behavior may be harassing. Extreme fear fodder may shut down human interactions, with women potentially paying a bigger price in organizations where men have disproportionate power.
2. Avoid avoidance.
Employers need to be very specific in their training programs and otherwise that avoidance by men of women is not an acceptable strategy for avoiding harassment claims. There is a word for such avoidance: discrimination.
But it is not enough to make the statement. Employer need to provide guidance on safe inclusion. Here are but a few examples:
No, it is not okay to leave the door open for meetings with women but have closed door meetings with men. Think of the insider-outsider message.
Open or closed? Look at circumstances and not chromosomes.
Yes, bars can be a bad scene for workplace interactions. Alcohol is a risk factor, and some bars are worse than others.
But don’t leave women behind because you are concerned about the environment. Change the environment. Try coffee houses, instead.
Yes, there may be times when a leader may need to have a dinner with a report, particularly if the leader travels a lot. But could that invitation be seen as a request for a date?
Better to avoid the dinner if the invite could be misconstrued? No! That denies the excluded employee the benefits that go with inclusion.
Lunch may be better but, when dinner is necessary or better, be thoughtful: explain the business purpose; invite the employee to pick the time and place; limit the alcohol, etc. You might even think of a gentle way to signal you have done the same with others.
This is a big one: fear of travel. Of course, mixed-gender teams can travel together.
Please, women and men don’t need to stay in separate hotels. The issue is not hotels, but hotel rooms, which can be better thought of as bedrooms. Rule of thumb: stay out of the bedrooms of colleagues and don’t have them in yours.
Again, this applies without regard to gender. There is the insider/outsider problem if based on gender. Plus, let’s not forget same sex harassment or the fear of same.
Need to meet up? Try the lobby!
We need to address these granular issues not only in training but also day to day if we see or become aware of possible discriminatory avoidance. Beyond the scope of this article, we need to focus on steps to overcome avoidance in the context of mentoring.
3. Develop systems to address access issues.
The boys club is alive and well and fear of harassment allegations has resulted in some clubs putting additional locks on the doors. Need guardrails to break the locks.
No one size fits all but employers need to develop guardrails to prevent leaders from working only with those they feel most comfortable or safest. Implicit bias may become explicit bias because of the fear of being accused of sexual harassment.
But we must do more than establish guardrails to ensure equal opportunity to necessary and/or plum assignments, meetings, etc. We must monitor what occurs and take corrective where there is evidence that anyone is being denied opportunities for discriminatory reasons.
While I acknowledge the issue broadly, I and we should not dilute the message by failing to focus on core issue: men cannot engage in discriminatory avoidance as a strategy to avoid sexual harassment claims.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jonathan A. Segal is a partner in the Employment Group at Duane Morris in Philadelphia. Previously a litigator, Jonathan’s practice focuses on helping clients maximize compliance, minimize legal risk and strengthen organizational cultures in areas such as pay equity, harassment and civility, wage and hour, talent acquisition, and performance management.
This article is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.
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