Workplace Sexual Harassment: A Problem for Management

This weekend’s Globe and Mail contained an excellent example of how not to handle a sexual harassment complaint:

RCMP Constable Janet Merlo says she felt compelled to respond when a supervising officer made a sexist remark to her in the company of a high-ranking official from the force.

“You know, if I were to make a complaint, I could probably retire on just what you say to me alone,” she said.

“What was that?” her boss replied. “Did you say you want to retire on me? Does that mean you like it on top?”

It was at this point that the senior RCMP officer in the room interjected.

“If you’re going to talk to her like that, do it somewhere else,” he said to the male officer. “I don’t want to be a witness to stuff like that.”

Honestly, I don’t think I could invent a better example of how not to handle an incident of sexual harassment.  First, the remark by the Constable’s supervising officer clearly fits one definition of sexual harassment, which is remarks of a sexual nature which are known (or should be known) to be unwelcome.  It is clear that the remark was unwelcome, as the Constable communicated as much when she referred to the possibility of making a complaint.  Second, the “high-ranking official” clearly knows that the remark was inappropriate – that’s why he told the supervisor not to speak to Constable Merlo in such a way in his presence.  But while he communicated to both that he understood the remark to be inappropriate, he also communicated to both that it was fine for the supervisor to go on making such remarks, as long as he did it “somewhere else”!  No wonder that the Globe reports that the biggest challenge facing the RCMP’s new Commissioner is the history of allegations of harassment by female Mounties.

As I wrote about workplace bullying in my previous post, workplace sexual harassment is a problem for management.  While I believe that women should be encouraged to speak up in the face of inappropriate remarks, expecting employees to deal with sexual harassment on their own is both unrealistic and an abdication of management’s responsibilities.  As is the case with workplace bullying, how management approaches the problem can make the difference between a flourishing and respectful workplace, and a workplace with low morale, low productivity, high employee turnover and a host of other problems.

Happily, I also have an example of an organization that was more successful in its response to an allegation of workplace sexual harassment.  A friend who was at the time in C-level of a flourishing start-up told me that he had a number of complaints by different female employees about a male co-worker who was making sexually-charged remarks.  My friend spoke to the employee in private, told him that the remarks were inappropriate and unacceptable, and that his behaviour would have to change.  When my friend learned that the remarks had continued and that the employee in question had made no effort to change his behaviour, he felt that he had no choice but to let him go.  It wasn’t easy for my friend to confront the employee.  And it certainly wasn’t an easy decision to let him go.  But my friend really felt that he had no choice.  He realized that if he failed to act, that would have been sending a message to his female employees that he tolerated sexual harassment and that he didn’t care about their discomfort.

Dealing with complaints of sexual harassment probably tops the list of things that a manager would rather not do.  No one looks forward to this kind of difficult conversation, but such conversations can become easier with communications training.  Having a code of conduct or other policy document in place is also crucial, as is making sure that all employees are aware of it.

Bullying and Workplace Culture

You can find a lot of information and advice about workplace bullying on the internet. Unfortunately while most of the information and advice is good so far as it goes, I find that much of it nonetheless misconstrues the nature of the problem.

Most discussions of workplace bullying start with a definition of bullying. Basically, bullying is “persistent harassment”, and “harassment” is conduct that is unwelcome or ought to be known to be unwelcome. Harassment might include insults and demeaning remarks, comments of a sexual nature, offensive jokes, or intimidation. Most discussions of bullying then move on to advice: “What to do if you are a victim of workplace bullying.” The advice usually amounts to four basic points:

• Document what is happening – keep a record of the harassment as it occurs, with names of witnesses if applicable. 
• Stand up for yourself. 
• Reach out and let someone know what is happening. Contact a union rep, or the Human Resources Dept, or the Employee Assistance Dept. 
• If possible, try not to be alone with the bully. 

As one-size-fits-all advice, this is pretty good. The problem is that the focus is on individuals – bullies and their victims – rather than on the workplace culture that makes both kinds of roles possible. Bullying is problem of organizational structure or culture; it requires management-level intervention and solutions. Expecting the victims of bullying to solve their own problems is both unrealistic and an abdication of management’s responsibilities. How management approaches the problem can make the difference between a flourishing and respectful workplace, and a workplace with low morale, low productivity, high employee turnover and a host of other problems.

I was once called in to a workplace where Mike, a recent hire (and not his real name) was persistently harassed by his immediate supervisor. The supervisor insulted his work, made a big deal out of minor mistakes, denied him information that was necessary for completing work properly, and generally treated him horribly. Mike liked the actual work and seemed to be pretty good at it, but things got to the point where he dreaded having to show up in the morning and had to take an unpaid stress leave. Luckily for Mike, he had the support of his co-workers who could see the supervisor’s bullying behaviour for what it was.

Mike wasn’t so fortunate when he approached management about the problem. The manager and the supervisor had a history together that Mike and the manager did not. The manager assumed that the supervisor’s behaviour was justified, that Mike was a “hot head” who didn’t know the job yet and couldn’t take constructive criticism. You can imagine the messages sent by the manager’s failure to investigate properly. The bully got the message, “Your behaviour is just fine and there is no need to change.” Mike got the message that he was not valued in the organization. And his co-workers got the message that, if they were in a similar situation, management would not support them.

It is unfortunate but hardly surprising that things got worse for Mike before they got better. Eventually, it took all of Mike’s co-workers in the department together going to the manager to let him know what they’d seen. And I have to give credit where it is due: When the manager understood the reality of the situation, he made it clear to the supervisor that the bullying behaviour could not continue. When the supervisor received that message, clearly and in no uncertain terms, his behaviour changed.

The lessons for managers: Bullying is a problem of workplace culture; it is not a problem that you should expect employees to solve between themselves. Everyone, at every level of the organization, needs to know what kind of behaviour is unacceptable. And when someone crosses the line of acceptable behaviour, management needs to be willing to back up their words with action.

More on Confidentiality in Mediation

Confidentiality is a basic principle of mediation.  But it seems that it is also one that mediators have to be vigilant about protecting.

Earlier this week I was fortunate to attend a talk at the ADR Institute of Ontario by David Bristow, a very respected lawyer, mediator and arbitrator.  Mr. Bristow told us about some recent important new cases with implications for ADR practitioners, and there was a lively discussion afterwards.  One of the cases he discussed, Hand v. the Walnut Valley Sailing Club, Kansas, caught my imagination

Mr. Hand had been a member of the Sailing Club for about 20 years, when the club made some changes to a storage area where sailboats and other equipment was kept.  Mr. Hand protested against these changes, saying that they were in violation of the Americans with Disabilities Act.  When the management of the Sailing Club refused to act on his protest, Mr. Hand wrote a letter to Governor Parkinson.  Learning of this letter, the management of the Club cancelled his membership; Mr. Hand’s response was to sue under the ADA.  The lawyers for the Club filed a motion that Mr. Hand’s claim be dismissed, on the ground that 1) he is not disabled; and 2) the Kansas laws protecting whistle-blowers apply only to employees.  The presiding judge, Sam A. Crow, agreed, and the case was dismissed.

A few months later, Mr. Hand visited the club on two occasions.  (I believe that he was the guest of a member).  The Club’s lawyers wrote to Mr. Hand’s lawyers, demanding that Mr. Hand not enter club premises.  Shortly after, Mr. Hand visited the Club again and refused to leave when he was asked to.  The Club filed a request with the court for a restraining order against Mr. Hand.  The motion was denied.

At some point in the dispute, the parties were ordered to mandatory mediation.  Within hours of the mediation session, Mr. Hand had sent a blow-by-blow account to all members of the Club, plus assorted friends, via email.  He revealed the amount of money the Club’s management offered him to settle the case, his own response to the offer, the number of lawyers representing the Club, what their fees might amount to, and what the mediator said and did.  In short, he revealed basically everything that happened in the course of the mediation.

The judge (Mr. Sam A. Crow, again) was not amused, to say the least.  He dismissed Mr. Hand’s entire action as a sanction for violating the confidentiality of the mediation process.  Although the case is not binding on the courts of Canada, Judge Crow’s reasons for dismissing the case may be relevant for confidential proceedings anywhere.  (The text of the decision may be found here.)  Briefly, the judge found that Mr. Hand’s revelations were highly prejudicial, interfered greatly with the judicial process, and that the leak of confidential information was done knowingly and willingly.  All of these factors lead him to sanction Mr. Hand as seriously as he did.

The case of Hand v. the Walnut Valley Sailing Club is thought-provoking for many reasons.  On the face of it, the relative triviality of the issues makes it precisely the kind of case that should be kept out of the court system.  Yet Mr. Hand clearly wanted a public vindication for himself and a public reckoning for the Club’s management.  In that respect, he was not a good candidate for mediation.  Could the mediator have done more to impress upon him that effective mediation requires confidentiality, and that keeping mum would be in his interest?  Did Mr. Hand’s lawyers warn him about the possible consequences of breaching confidentiality?  We have no way of knowing.

The Kansas case, despite its relatively low stakes and lack of global significance, provides a vivid illustration of how mediation can go wrong if the parties aren’t fully committed to the process and to respecting confidentiality.

“The Interrupters”: Lessons for Mediators

I had a chance last week to see The Interrupters – a new documentary about mediators in Chicago who work to reduce gang violence.  The film focuses on three “violence interrupters” who intervene in conflicts before they become violent.  All three work with the organization “CeaseFire,” founded by Gary Slutkin.  Slutkin, an epidemiologist at the University of Illinois in Chicago, believes that gang violence is a public health problem and that the spread of violence mimics the spread of disease.  The solution is similar in both cases:  Find those who are most infected and stop the infection at its source.

Critics have said that the film is “riveting” and I would have to agree.  It is fascinating to see, up-close and first-hand, the work done by these brave men and women.  The film also has some lessons for mediators of non-violent conflicts.

Words matter:  Ameena Matthews (in the image above), one of the mediators portrayed, tells us early in the film:  “They say ‘sticks and stones will break my bones but words will never hurt me’?  Words will get you killed.”  Even when violence is an unlikely possibility, choice of words – and the respect or disrespect that those words convey – can have a crucial effect on negotiations.  Mediators may need to coach clients about their choice of words and get them to reflect on the possible consequences of those choices.

Credibility is key:  The mediators portrayed in the film can be successful only if they are respected by the people they work among.  Their personal histories, experience with violence, and the force of personality they display all contribute to their credibility.  While “credibility” will mean something different for mediators working with a different clientele (say, Bay Street lawyers rather than youth-at-risk) its importance should not be underestimated.

Gain trust by demonstrating that you understand the client’s perspective:  In a powerful scene, Ameena and some other mediators intervene in a confrontation taking place right outside their offices.  We see her conversation with one of the young men she has just hustled away.  At first, it seems (incongruously) that she is praising him for almost getting involved in a violent conflict:  “You came to protect your family, right?  You came down because your sisters called you?”  We see the point of her strategy later.  The young man is prepared to listen to Ameena when she appeals to his protective impulses:  “How are you going to protect your family if you’re in jail?  How will they cope with that?”

Use the clients’ own values in getting them to think about their actions:  The violence interrupters are not neutral with respect to the outcome of their negotiations.  Their goal, in every case, is to reduce violence and save lives.  One of their techniques (familiar to mediators everywhere) is to get their clients to think about whether their actions are in harmony with the values they express.  We see mediator Cobe Williams working with two brothers who are members of rival gangs.  The brothers claim to love one another, but bicker with one another and with their mother until Cobe wonders (and we wonder) if he can make a breakthrough.  The turning point comes when he asks each brother in turn, “If they [the gang] was coming after your brother, would you protect him?”  When each brother sees the other answer in the affirmative, they seem to realize that their bickering and trash-talking and posturing are out of place.

Listening works:  Many of the people we see involved with CeaseFire are very charismatic.  Tio Hardiman, head of the violence interrupters program, and Ameena Matthews in particular, come across as very strong personalities and powerful, effective orators.  The film contains several splashy scenes of their work and the positive influence they have on others is evident.  Yet the film also contains quieter, yet equally powerful moments, when all the mediator seems to do is maintain his composure and listen, and then demonstrate that he has heard the speaker.  Several times, we see violent impulses drained away as the speaker realizes that his grievance has been heard and understood.