How to Prevent and Correct Sexual Harassment in Your Workplace (AllBusiness.com's Chris Bjorklund interviews Linda Gordon Howard, an attorney, consultant, and trainer, and the author of The Sexual Harassment Handbook.)

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Chris Bjorklund: If you want to prevent sexual harassment in your office, you can learn how to do that from today's AllBusiness Podcast. Our expert is Linda Gordon Howard, attorney, consultant, trainer, and the author of The Sexual Harassment Handbook. She will be focusing on the basic steps you can take, to not only prevent, but also correct sexual harassment in the workplace. Linda, welcome to the All Business Podcast. Personally, I think any show about sexual harassment needs to start with laying out a working definition of exactly what it is these days. I'm sure if you ask ten people for a definition, you would probably get about, at least, well, maybe, eight or ten different answers. Can you help us with that, Linda?

Linda Gordon Howard: You're right, Chris. The most common question people have about sexual harassment is, "What is that?" So, sexual harassment has three different elements or pieces of the definition. The first piece is it's sexual behavior-physical or verbal, or even a display like pictures or e-mails. The second piece is that behavior is unwelcome-that is unwelcome for the person who's experiencing the behavior. And then the third piece, and this is the piece that's the most troublesome for most people-is that the behavior has an impact on the target's job. That is if they lose something tangible, such as their job or promotion, or raise, or something like that, or, it has the impact that's interfering with the person's ability to do her job-and it affects the work environment so that it's intimidating, offensive, or hostile. And that's the definition-those three pieces-unwelcome sexual behavior that has a negative impact on the person's ability to do their job.

Chris Bjorklund: I guess the trouble comes up when we start talking about some real-life situations that you see in offices. And when I started asking friends and colleagues about what they're confused about, with regard to sexual harassment, they came up with some questions, and I thought we'd throw out a few sample questions for and ask you to respond to them one at a time. Here's the first one:

Male Voice: "Is giving a co-worker a backrub considered sexual harassment?"

Chris Bjorklund: OK, Linda?

Linda Gordon Howard: That's a great question. A backrub can be sexual harassment-and I think it's most helpful to go back to the definition. So, a backrub can be a very intimate behavior-it's touching someone's body-it's touching in an intimate way. So, it qualifies as a sexual behavior. The question is, "Is it welcome?" So, if the co-worker asks for the backrub, then it's clearly not sexual harassment.

Chris Bjorklund: OK, so that's the key here.

Linda Gordon Howard: The key is whether it's welcome-so you have to be careful if you're offering a backrub. And the key is to ask for permission. Otherwise, you risk doing something that's unwelcome. If the person asks for it, it's not harassment. And you really must ask and get a response as to whether they want you to do what you're going to do.

Chris Bjorklund: OK. Now, here's one for managers:

Male Voice: "Can I get romantically involved with one of my subordinates?"

Linda Gordon Howard: Well, this is a tricky area, and it's also a common situation. And the answer is-of course; you can get romantically involved with a subordinate. The problem in sexual harassment area is that it's very difficult to know whether the subordinate really welcomes the behavior and is getting involved voluntarily. Your behavior might be unwelcome, and it's possible you'd never know it was unwelcome. Employers have been sued and lost a lawsuit because the subordinate became romantically involved with the supervisor, because she thought she had no choice. So, really, the way to deal with this is that if you're interested in the subordinate and really care about this subordinate, the best thing to do is to go to your employer and remove yourself from your role as his or her supervisor. And then, you can get romantically involved-otherwise, it's a bad idea.

Male Voice: "What about having a copy of, say, the Playboy of the Month posted in my cubicle at work? Is that OK?"

Linda Gordon Howard: Well, here's the easiest answer I can give to that question-if you actually work at Playboy Magazine, then, having it posted is not a problem. But if you work anyplace else, I'd say it's not OK. And here's why I'd say that-if other people have to come to your cubicle, or pass by your cubicle and see your pinup, there is a good chance that those people will be offended, and that your pinup is unwelcome. So, going back to the definition-it's a sexual display; people, likely, do not welcome it, and having to pass by your pinup, that can easily create an offensive work environment. So, again, the key is it's the impact on the people you're working with.

Chris Bjorklund: I guess that goes for screensavers, too.

Linda Gordon Howard: What a great comment. Absolutely, it goes for screensavers too.

Chris Bjorklund: OK. Now, here's the last one:

Male Voice: "Can I compliment a co-worker of the opposite sex on what they're wearing?"

Linda Gordon Howard: You know, this is another great question. Of course, you can compliment a co-worker on what they're wearing. Here's the thing-mostly, we're not complimenting people on their hats or on their shoes .

Chris Bjorklund: OK .

Linda Gordon Howard: . usually, we're commenting on a person on how they look, or how attractive they are. And a compliment can often be considered a sexual comment, "Gosh, you look great in that." "Those pants make your leg, or your butt, look great." And there you are entering the area of possible harassment. So, the best way to deal with compliments is to talk to the people you work with and really ask them and find out whether they mind your complimenting them. And if they say, "I love compliments," then, go ahead and compliment them, and check in periodically. But if they say they really prefer that you don't-then leave it alone and respect their wishes.

Chris Bjorklund: Boy, this has sure changed over the last twenty some years, when I think back to some of my earlier jobs.

Linda Gordon Howard: Well, you know, there have been a lot of changes, and ever since the Anita Hill, Clarence Thomas weekend, in which the Senate considered Anita Hill's allegations that the Supreme Court justice-before he was appointed to other courts-had sexually harassed her, there was very little general knowledge, or even concern, about sexual harassment in the workplace, out in the general . in the general public-and even in that weekend, while there was a lot of talk about sexual harassment, there was no definition that was given people. But now, with so many women in the workplace, women are getting more confidence and speaking up-and having more support when they do speak up. So, a lot of these issues and questions are getting a lot of attention, and there's a lot more impetus and concern for creating a healthy workplace for everyone.

Chris Bjorklund: So, in your book, you have a number of quizzes, and I'm wondering if we could talk about some of those questions. Maybe it's your turn to question me?

Linda Gordon Howard: OK, great. That's fun-let's do that-so, here's the first question for you, Chris: Before an employee can complain about being sexually harassed, he or she must be able to prove the behavior was sexual harassment-true or false?

Chris Bjorklund: I think that's false.

Linda Gordon Howard: You're correct, that is false.

Chris Bjorklund: Good.

Linda Gordon Howard: Congratulations.

Chris Bjorklund: It isn't my job to prove it, but it does help if I've documented .

Linda Gordon Howard: It does help if you've documented it, but you don't have to document it. The key issue here is that you can complain if something happened, if it was unwelcome, and it just has some impact on you-and your word that it happened, actually, is evidence-there will be an investigation that determines whether it's sexual harassment or not. But it's not your job to have to prove it.

Chris Bjorklund: OK. Good.

Linda Gordon Howard: Great. So, here's another question: Only a supervisor can sexually harass an employee-true or false?

Chris Bjorklund: Oh, I would say that's definitely false-a co-worker at the same level could produce some unwelcome behavior.

Linda Gordon Howard: Without any question-they could. Great answer. The reason I have that question in is that it's important for employers to know that there are two different kinds of sexual harassment-one is the kind that only a supervisor can engage in-and supervisor sexual harassment, even though it's probably the critical and the most dangerous in terms of a lawsuit for an employer-half of all sexual harassment is by co-workers.

Chris Bjorklund: That doesn't surprise me at all.

Linda Gordon Howard: Great.

Chris Bjorklund: How about one more?

Linda Gordon Howard: One more question, great.

Chris Bjorklund: I'm doing . I've got a hundred percent, so far.

Linda Gordon Howard: You're doing very well. An employee can be harassed by another employee of the same sex, but only if the other employee is a homosexual-true or false?

Chris Bjorklund: Oh, I think that's false.

Linda Gordon Howard: You know, you're right. It is false-this question came from a very recent Supreme Court decision that said that the key question in same-sex harassment isn't whether there's sexual attraction, or whether there's sexual behavior, and whether it's unwanted, and whether it has an impact on the employee's experience at the workplace. But the big point, and this is something that's relatively new in this arena, is that there is something that is same-sex harassment, so, men can harass men, women can harass women, and, so, anyone can potentially harass anyone else.

Chris Bjorklund: OK. Well, good, now, what are the recommendations in your book, which is The Sexual Harassment Handbook, is for employers to create and adopt an anti-harassment policy that is specifically for their company? Now, what are some of the key elements that should be looked at or included in that policy?

Linda Gordon Howard: Well, Chris, there's three key elements-the first is, a prohibition against sexual harassment, that is, the policy has to say that the employer prohibits sexual harassment of employees, and has to provide a definition of what that is; the second key element is a procedure for complaining that's easy to use, so, it must be obvious who the person is that you go to, or who the people you go-and inside the procedure, it has to be clear that an employee is not required to go to their supervisor to complain; and then, the third element that should be in the policy, is the promise that all complaints will be investigated-and investigated properly.

Chris Bjorklund: And that's very important because, otherwise, the employees will have no faith in the piece of paper this is all written on.

Linda Gordon Howard: Well, yes, it's great that you mentioned that. Employees are generally reluctant to report-they don't want to get, generally, don't want to get people in trouble. Mostly, they really just want the behavior to stop. But, they're reluctant; they don't really think anything's going to be done. So, to the extent that there's a delay, and the complaint is not investigated right away, and to the extent that after the investigation, there's no prompt corrective action-there has to be prompt corrective action-and you have to let the complainant and the respondent, or as I say, the target and the actor, know the results of the investigation-you see, you might investigate . the employer . and this is really important for employers, especially small and medium-sized employers, and that is, you can investigate and you can take action, and it's possible for people to not realize that it happened-you have to actually tell them what you concluded and what you did, and that you consider this to be correcting the situation.

Chris Bjorklund: I suppose supervisors and managers play a critical role in both the development of the policy and the training and implementation.

Linda Gordon Howard: Well, the remarkable thing-one of the things that I like to make a point of is that if you say that you work for XYZ Corporation, right? There is no XYZ Corporation, except there's something that got incorporated, a legal entity-all there is are people acting on behalf of the corporation-so, supervisors and managers really are the ones that an employer has to rely upon to have the procedure and the policy work. So, you want to involve your supervisors and managers in the creation of the policy because they can give you feedback about what works and what doesn't work, and you want to make sure that they understand it. And, beyond that, the way that you want your supervisors and managers to play their role is, first you want to model appropriate behavior-that is, you want all your supervisors and managers to be abiding by the policy and understanding what it is, and really have model behavior. Second, you want your supervisors and managers to advocate the policy-that is, if someone comes to a supervisor and says, "You know, I'm really concerned about a problem with one of my co-workers, and they're just not acting towards me ." or, "They touch me," you want a supervisor to say, "We have a policy against sexual harassment." "Have you read it?" "Here it is. What you're supposed to do is report this behavior," and you want your supervisors and managers really advocating the policy. And then, finally, you want your supervisors and managers involved in teaching your staff what sexual harassment is, and how to abide by the policy. So, supervisors and managers should be included in staff training-I really recommend having staff and managers in the same training. A lot of employers train them separately. And another thing, and this is something that's not something that people are used to doing, but, I recommend very strongly that supervisors and managers bring up the subject of sexual harassment from time to time-ask people if they know about the policy, ask them if they understand how to use it, and you can even have a manager and a staff meeting. So, I think we should talk about the matter of compliments-is this a problem for people, do people like compliments, do you want not to be complimented? And a manager or a supervisor can really help their staff to be open and communicate their personal boundaries.

Chris Bjorklund: I think this sounds like an important element of having a good anti-harassment policy. I mean, the paper being posted and distributed is one thing, but having this ongoing conversation in staff meetings and around the office, I think, probably leads to a healthier environment.

Linda Gordon Howard: Well, it lets people know that you're really interested in how they're being affected by other people's behavior. It starts to train people in how to communicate what it is that makes them uncomfortable, to communicate how the environment is impacting them. Many of us don't speak up-we don't think that we're allowed to speak up. So, to the extent that employers encourage people to talk about what concerns them, and as long as employees get the message, "We want to know what concerns you." "We want to have a healthy and respectful work environment." "We want you to give us an opportunity to do something about unwelcome behavior." Those kinds of sentences actually have to come out of supervisors and managers' mouths.

Chris Bjorklund: Now, you touched on this earlier, about . and in these last few minutes, about encouraging targets of unwelcome behavior to come forward and file complaints-are there any other specific things that employers can do to encourage someone to step up and make a complaint?

Linda Gordon Howard: In addition to saying, "We want you to report unwelcome behavior," the procedure for filing a complaint needs to be very clearly outlined-that is, in your employee directory, for example, the phone directory, somebody really needs to be able find under "S" or under "C"-for complaints-how to file a complaint, when you think from somebody looking for how to get to you. And we mentioned, earlier, investigating promptly-if your employees know that you're going to take complaints seriously and investigate quickly, they're going to be encouraged to complain. And then, taking corrective action on complaints that have been verified as both true and constituting sexual harassment. The other piece that sometimes is difficult, especially for small employers, is respect the confidentiality of the people involved. If you think that if you bring a complaint, you're going to become the subject of everybody's gossip-that's going to be a concern. So, respecting confidentiality . and another piece of . for employers is to really pay attention to how effective the complaint procedure is-how many complaints are you getting; are you really acting quickly? And that's something to monitor. And al of these things will tend to encourage people to come forward.

Chris Bjorklund: Linda, what are some of the things that can go wrong with one of these sexual harassment investigations? You've done a few, and you've seen a lot of examples of things kind of going awry.

Linda Gordon Howard: Well, you know, there really are a lot of things that can go wrong. Here's an example, let's say, a female salesperson complains that her supervisor publicly said that she's able to do such a good job closing deals because she's so sexy, or said, "Boy, you must have really . must have slept with this one to have gotten such a big deal," and here's how the investigation can go awry-the investigator interviews the supervisor, the supervisor says he was just joking; or the investigator interviews other people who were there, and they said it didn't bother them, they thought the supervisor was just joking. Well, the test isn't whether the other people were affected, or found the comments unwelcome, the test is the impact on the person he was talking to and about. So, that's an investigation that could conclude that it was not sexual harassment-when, in fact, it was. So, that's an incident . that's a way that an investigation can go wrong-that's fairly common. Another way for an investigation to go wrong is the investigator investigates and then makes the report to the business owner-that's the person who's making the final decision-but the business owner didn't participate in training, and the business owner doesn't understand the definition of sexual harassment, so, he decides, "Well, we're not going to take any more actions because I don't believe this was sexual harassment," and concludes that wrongly-wrongly from the perspective of the law, and wrongly from the perspective of how it impacts the target and the business, ultimately. So, that's another way for it to go wrong.

Chris Bjorklund: These could lead to a lawsuit then-these kinds of scenarios?

Linda Gordon Howard: Well, it could lead to a lawsuit, in that, in both incidents, because there was conclusion it was no sexual harassment, the company could end up taking no action. In the second incident, the fact that there was no action is actually contrary to the conclusion of the investigation-so that definitely is a concern.

Chris Bjorklund: Now, what I liked about your book, especially in the later chapters, you talked a lot about sexual harassment prevention in workplaces, and trying to transform the workplace, through some of your training and work, I think that's, obviously, one of your goals, and one of the points you made is that in workplaces, sexual attraction is inevitable.

Linda Gordon Howard: Yes. What I found is that if you go . some policies, or some employers really think that the way to address sexual harassment is to eliminate all sexual talk, all sexual behavior, and, I guess, all sexual thoughts from the workplace. Well, I don't think it can be done-we are sexual beings. You put people together over any period of time in the workplace-it's over the course of days, months, and sometimes, a lifetime-sexual attraction is inevitable. So, policies really have to be implemented inside of an understanding that people are going to behave sexually. And the idea of a sexual harassment policy is to teach them what kinds of behaviors are inappropriate, and what kinds of behaviors are appropriate.

Chris Bjorklund: Should you also be acknowledging that there could be abuse of power at different levels of within the organization?

Linda Gordon Howard: Well, abuse of power really is, in my view, one of the major sources of sexual harassment. So, whenever you've got someone who has power, and every supervisor or manager has power, the employer has to be on the lookout for supervisors and managers aren't really developing personal . that is, a supervisor or manager really likes somebody as a subordinate, really wants to have sex with them, or just enjoy their attention, you have to be on the lookout for that. But there's also abuse of group power-so, where there's a dominance or an abundance of males in the workplace, and you have female coming in, or even, and this surprises people sometimes, even in female-dominated workplaces, females can tend to harass a new male employee coming in. So, one of the things to be on the lookout for is abuse of power on many different levels.

Chris Bjorklund: What are some of the things employers can do about work situations you know are ripe for harassment and complaints such as the company holiday parties?

Linda Gordon Howard: Well, I mean, one thing that an employer can guarantee you-I can guarantee you-that after the company holiday party, or after the company picnic, or any work situation that involves alcohol-it loosens people's inhibitions-the next day, or over the course of the next couple of weeks, you can expect sexual harassment complaints. So, the key is to be in communication beforehand, so, sending out a memo, or even with smaller businesses, getting together your supervisors and managers, and saying, "Look, we've got the company party coming up. Remind them all of the policy. Ask them to remind their staff of the policy. You can do things like provide rides home to people so that someone who's gotten inebriated doesn't end up having to accept a ride home from somebody that they're not comfortable going with." So, there are a number of things that one can do. Another thing to look out for is Valentine's Day-people are always sending presents to people who just aren't interested . on Valentine's Day . so you can have conversations with people, and managers can even send people to counseling if you have some lovesick subordinates on your staff.

Chris Bjorklund: Didn't that get started in junior high?

Linda Gordon Howard: Well, you know .

Chris Bjorklund: That behavior?

Linda Gordon Howard: I'm so glad that you brought this up-virtually all of these behaviors started in junior high.

Chris Bjorklund: Oh.

Linda Gordon Howard: And I think that the whole phenomenon of sexual harassment has a lot of us stuck in junior high school. And one of the things that many of us never learned in junior high school is how to have a straightforward conversation in a situation of sexual attraction. It's one of the things we've never really learned-sexual communication in our culture is vague, it's based on body language, and people are very reluctant to ask the question, "Look, I'm interested in you-are you interested in me? Because if you're not interested in me, I'm going away." Very rarely, do we have that kind of conversation. And we need to learn how to do that. And that's brand-new in our culture. It's not done-and I'm clear it's difficult for people, but we have to learn. And some small employers, and medium-sized employers, may be shocked to find out that they're in the sexual communication training business.

Chris Bjorklund: That is an interesting .

Linda Gordon Howard: I mean, a lot of them . a lot of people will be shocked to find out that that's what, as employers, we've moved into.

Chris Bjorklund: Oh, Linda, in the end here . and my last question is-who really can have the greatest opportunity to affect sexual harassment in the workplace?

Linda Gordon Howard: Well, Chris, it's a group of people that we very rarely talk about or even notice. And it's a group of people that, usually, we call innocent bystanders-but I call them active observers, and, that is, everybody in the workplace has a huge opportunity to affect sexual harassment in their workplaces. Everybody has a role-we see things that are going on, if you want to know what happened in the Apex Corporation around sexual behavior after the Christmas party, you're not going to call Human Resources, you're going to call any given person in the company-and they know, because they were there and they were observing. So, if there's any message that I have, it is, "Speak up when you see something that isn't supporting a healthy and respectful workplace." When we're quiet, and when we don't say anything, we're actually giving our tacit approval to what it is that's going on. Encourage people whom you work with to say something, to speak up, even if it's to ask the person who's engaging in the inappropriate behavior to stop. But it's the active observers-and I call them active observers because, number one, they're observing, and they are doing things-they are making phone calls, gossiping, talking-and being silent and withholding your advice and counsel from your colleague, is an action that is behavior. So, we all have a role.

Chris Bjorklund: It was a pleasure doing this show with you, Linda. Thanks so much for talking to us.

Linda Gordon Howard: Thank you for having me.

Chris Bjorklund: We've been talking about preventing and correcting sexual harassment in the workplace in this AllBusiness Podcast with Attorney-at-Law Linda Gordon Howard, author of The Sexual Harassment Handbook. If you have any feedback for us, or would like to suggest guests for future shows, send your e-mails to podcast@allbusiness.com. I'm Chris Bjorklund, thanks for listening.