Three Short Stories about “Harassment”

Whenever I’m facilitating one of WorkplaceTrainingHub.com‘s management courses on “harassment,” I like to ask participants

Have any of you ever been accused of harassment?

Most folks immediately avert their gaze before I even finish the question–i.e., to check for an important email, Facebook post, or nearby Pokemon, right?  It looks like this:

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It’s a tough question to answer publicly.  And so, after making clear that I’m just teasing them, I share my personal stories about “harassment,” from all the lenses through which I’ve seen and experienced “IT.”  At that moment, eye contact returns and the thick fog of tension in the room dissipates.

#1:  Accused at the EEOC

I launched my legal career at the EEOC’s Denver District Office, a freshly-minted attorney with an MSW in civil rights. I was insufferable. In any case, I quickly learned to despise the weekly attorney meetings at the EEOC: as more of a “directing-guiding” personality, the chit-chat and lack of clear goals, objectives, and action items drove me bonkers.

And so, one Monday morning, as my attorney teammates shuffled into the law library for our weekly meeting, I spoke these words to my African-American colleague, “Elston”:

Elston, it looks like you’re also having a tough time dragging your sorry ass in here today for the attorney meeting!

In a perfect world like the movies, a disembodied Morgan Freeman voice-over would have alerted everyone of the situation’s critical subtext:

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What Elston does not know is that Merrily grew up in St. Louis and had used this phrase–“dragging your sorry ass”–regularly with both African-American and white friends. 

But, life does not come with explanatory Morgan Freeman voice-overs, leaving us to our own interpretive biases and faulty attributions.  See, Elston occupied the office next to mine, but kept to himself . . . I reasoned that Elston’s aloofness accounted for his longevity at the EEOC: he’d outlasted several generations of attorneys in the EEOC’s Denver legal department.  I knew very little about him (except that he listened to “I Believe I Can Fly” every morning as one of his rituals), but I respected his seniority and wanted him to mentor me.  After all, the learning curve is STEEP for young government lawyers.

I do not specifically recall Elston’s reaction to my comment, but I remember hearing some chuckles from colleagues who still found my distaste for meetings somewhat charming.  Nevertheless, about four hours later, these words appeared across my computer screen in the subject line of an email from Elston to my bosses and me:

Potential Hostile Work Environment

I read the rest of Elston’s email and then puked.  Elston interpreted my comment as racist because, according to him, “dragging your sorry ass” is a phrase created by African-Americans for the use of African-Americans.  Because I am not African-American, Elston reasoned, I must have used the phrase pejoratively, to make fun of him.

I was devastated.  I cared (and still do) deeply about equal employment opportunity (EEO), especially about advancing the March for African-Americans: caring about EEO forms a big part of my “self-concept,” and so, the accusation hit me really hard, like it does every other human I’ve encountered thus far.  But more importantly to me, I never meant to hurt Elston’s feelings; on the contrary, I was trying to connect with him . . .

In any case, my supervisors put me on investigative leave and I spent the next two days soul-sick in my apartment imprudently looking for shelter pets to adopt in atonement. On the third day, I met with my supervisors, both of whom were, coincidentally, middle aged African-American men like Elston. To this day, I’m grateful for their patience and empathy–I was a blubbering mess. During our meeting, they disclosed Elston’s admission that he had not been happy with previous retirement offers and wanted to add some tension to their negotiations . . . and a racial harassment charge would surely do the trick. I was a pawn in a larger plan.

With that admission, the matter was over as quickly as it started. Like the 95% of people accused of harassment each year, I’d been exonerated, but still damaged–e.g., uglier, crustier, less trusting. Elston and I continued to work “in proximity” for many months afterwards at the EEOC, although never together. My effort to draw Elston closer had only alienated him further,and sadly, further outreach seemed rationally unsafe. And so, I learned to deal with Elston like a “risk,” treating him with a level of formality that only deepened the divide between us . . . because that’s what happens when you’re accused of harassment–you learn to protect yourself.  And that’s a message managers must hear.

#2: Scrotum Jokes at the Christmas Party

Several years after I’d left the EEOC and switched sides to a defense practice, I found myself blessed to work among several of the best litigators in Colorado. Unfortunately, I was the only girl in my little ragtag clique of irreverent smart-asses who saw the sick humor in our work.  Employment law is often amusing, which explains why I write folk songs about it.

So, in the middle of the holiday season when the office was a Ghost Town, my little clique decided to treat ourselves to an early Happy Hour at lunchtime. As usual, I was THRILLED to be included: not only did I find these guys hilarious, but we also regularly consulted with each other when things got tricky in our cases.

At some point in the endless riffing (which included welcomed riffing on each other), my colleagues all started telling jokes about their scrotums (scroti?).  As I girl, I had very little to contribute to this part of the conversation, but I was enjoying the humorous dialog anyway.  And then, I realized I’d tuned them out to listen to my inner voice, which suddenly sounded like a resentful Jan Brady from The Brady Bunch:

Jan Brady

Scrotums are naughty boy parts, right? Why are they talking about them? 

Scrotums, Scrotums, Scrotums!

Is this harassment?

By the time I’d tuned back in to the conversation, the group had moved on to safer lunchtime topics, like the appropriate settlement value of a gnarly wrongful death case. But I quickly dismissed the notion that I’d been the “victim” of “harassment” because of my proximity to an NC-17 conversation; after all, I’m an adult.  At no time did my male colleagues seek to diminish me, to make me feel like less than a peer (despite my obvious handicap of not having a scrotum). It was like being the tomboy sister around a group of brothers who, at least in my mind, (a) thought of me as “one of the guys” or (b) feared verbal humiliation if the sex-talk ever got personal. And it never did.  I’ve since acted as their employment counsel when they formed their own firm, enjoying a friendly professional relationship that has almost spanned two decades.

I have, however, contemplated my inherent power in that situation to TAKE OFFENSE and more pointedly, to cause them trouble simply by interpreting their conduct differently and/or attributing nefarious motivations to it.  After all, ALL harassment lies in the eyes of the Accuser–namely, to satisfy the threshold legal element of “unwelcomeness.”  If I took offense or considered myself a “victim,” I wielded the power of attribution, even faulty attribution.

Indeed, fundamental attribution error (a/k/a “correspondence bias”) is one of the basic tenets of social psychology.  It holds that in explaining the behavior of other people, we have a tendency to overemphasize personal traits (i.e., disposition) and to de-emphasize situational factors . . . BUT when explaining our OWN behavior, we humans consistently focus on situational factors, not dispositional ones.

For example, how many times have you screamed “Asshole!” at another driver instead of thinking

  • Perhaps they’re rushing to the hospital to have a baby!
  • I’ll bet he’s just late for work today.
  • Maybe he did not see me.

And yet, social psychology studies confirm that when WE OURSELVES are the “Asshole” in traffic (and we all are occasionally), we will say to ourselves and others:

  • I did not see that car.
  • I’m late for work and could get written up.
  • Hurry! Faster! Screw the signals! We’re having a baby!

Check out this example:

Fundamental-Attribution-Error

Fundamental attribution error is pervasive in American thinking and it’s CULTURAL, meaning social psychologists have observed different attributional thinking patterns in other cultures.  Yet, when contemplated in conjunction with cognitive psychology principles like “cognitive dissonance,” “rationalization,” and a whole host of recognized “cognitive biases,” a central truth about sexual harassment emerges:

We seldom perceive our own conduct as harassing, but are often quick to assign those attributions (i.e., harassing pig) and motivations (i.e., harassment) to other people’s behavior.

Particularly in that regard, the foundation of sexual harassment jurisprudence has been built on logical and psychological distortions. FAE#3: My Sweet, Sexy Voice

Years later (and actually not that long ago), I picked up a new “wrongful discharge” and “whistle-blowing” case against a rural Colorado non-profit organization and each member of its volunteer Board of Directors in their individual/personal capacities. As an old social worker, I harbor strong negative opinions about trial lawyers who go after volunteer non-profit Board members. Indeed, decent attorneys on both sides of the bar would likely agree that naming un-paid volunteers as individual defendants is a SCUM-BAG maneuver, absent truly “willful and wanton conduct” like child sex abuse. In my new case, the naming of individual volunteers as Defendants particularly pissed me off because the Complaint stated that each member acted within the scope of their authority at all times.

Nevertheless, as was my practice (and as actually required by rule), I picked up the phone to contact plaintiff’s counsel to introduce myself, to talk about points of agreement and contention, and to discuss case scheduling.  I knew nothing about my new opponent because he lacked a website and online presence, but I correctly surmised that he was an older gentlemen based upon his low attorney registration number.

The conversation started off normally, at least from my perspective.  And at some point, I directly asked,

“Help me understand why you’re going after these volunteers in their individual capacities? I can get them dismissed, but not before they’ll have to bear the expense of preparing the proper pleadings.  What’s your thinking?” 

Instead of a response, my opponent stated

How old are you? You sound so young.  I cannot get over the sound of your sweet sexy voice.

This event marks one of the very few occasions in which I’ve been knocked speechless. In fact, I was not “young;” on the contrary, 15 years of litigation had hardened me into an old crusty Battleaxe.  But I was knocked speechless simply because I had no idea what to do or say next–I had no “event schema” for this kind of treatment by another attorney.

And so, I asked him to repeat himself.  He obliged. I’m not entirely sure what happened next, except that I could see my colleagues coming out of their offices to look at me through the glass in my door while I raged into the phone.  My voice, I imagine, probably sounded very much like Elizabeth Warren responding to a Donald Trump attack, like below.

Elizabeth-Warren

I do, however, remember hanging up on him.  He called back immediately and I sent the call immediately to voicemail.  I needed to calm down and reclaim my wits for a few moments because I was reeling inside: instead of treating me like peer intent on kicking his ass, he treated me like a hooker, deliberately sexualizing a business conversation to make me feel small, like a piece of meat.  His comments meant, “I will define you sexually, not professionally, and I have the power to do that.”

After I pulled myself together, I noticed the voicemail light blinking on my phone. And much to my utter horror and amusement, he left a rather lengthy voicemail message . . . again making reference to my “sweet sexy voice,” a few times, actually.  And so, I did what any decent litigator would have done: I had the recording transcribed and I cited that transcript liberally in every motion in which he sought to have me sanctioned for not giving in to him (which is most of them).

Throughout the litigation, my septuagenarian opponent insulted me, even encouraging his client and her spouse to do so as well. He called me “bitch” several times to my face and often within earshot when talking about me to others.  He contacted my old white guy bosses at Biglaw to tell them that I was “uncivil” and “taking irrational positions” in my case so that they would put internal pressure on me. He grieved me to Colorado’s disciplinary counsel for truly silly reasons. And during a deposition attended by several witnesses, stated that he would “knock me out” if he thought he could get away with it.  Thereafter, we put the local sheriff on alert whenever I came to town for depositions.

. . . because that’s what happens in a true “harassment” situation: the party that perceives itself as more powerful will use insult, innuendo, and even internal politicking to make others feel “lesser,” like trespassers on the old white guy establishment in their quest for INCLUSION and RESPECT. The insults and innuendo are designed to convey one simple message: you do not belong here and I’m going to make your life suck for trying.

In the end, I trounced this asshole about as completely as a defense litigator can by getting 90% of the case dismissed on summary judgment before trial and winning at the “chicken game” of trial practice. Because we were loaded with evidence to overcome the one remaining claim reserved for a jury trial, the plaintiff’s lawyer fully capitulated and settled the case for nuisance value on the courthouse steps after nearly three years of litigation and six figures in attorneys’ fees . . . to me. (Don’t worry, those attorneys’ fees were paid by an insurance company, not the volunteers or non-profit).  As many women know, WINNING is the best (and often only) revenge.

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“Harassment” is a complicated issue, driven by a constellation of factors that have little to do with LAW.  To address workplace “harassment,” therefore, we must turn to other disciplines for wisdom, especially the worlds of cognitive and social psychology.  These disciplines can help us better understand the “microcosm of the workplace” and how we interact with it and each other.  Instead, our workplace policy on harassment focuses on the reptilian mindset cultivated by trial lawyers: namely, that we must identify, weed out, and punish the HARASSERS and EVIL CORPORATIONS through large settlement payouts . . . of which trial lawyers take 33% to 45%.  Accordingly, it comes as no surprise that our efforts to eradicate “harassment” from our workplaces have failed so miserably.

Until we give our managers a truly balanced and realistic view of the “harassment” landscape, organizations will continue to be blind-sided by harassment allegations. In reality, most “harassment” allegations arise in the context of (1) pre-termination performance rehabilitation efforts; and (2) terminations.  Because managers do not recognize their conduct as “harassing,” they are unlikely to seek HR’s guidance in those common scenarios in which allegations arise. For that reason, WorkplaceTrainingHub.com‘s approach to managerial anti-harassment training also focuses on RISK, basic leadership psychology, and evidence development to help organizations manage the increasing risk of harassment allegations.

We hope you will join us.

Merrily Archer, Esq., M.S.W.

August 2, 2016

Rubber Stamps: Does Inventory Reduction Really Mean that the EEOC Is “Serving the Public More Efficiently?”

In Part I of this series examining the EEOC’s recently issued Performance and Accountability Report (PAR), EEO Legal Solutions questioned whether the EEOC’s historic collections from employer settlements ($365.4 million) really meant that it was enforcing the law more “effectively.”  After all, employers settle EEOC charges and lawsuits for numerous reasons, the most prominent of which is the staggering cost of defense.  More pointedly, employers often settle EEOC charges and prosecutions not because they pose real risk on the merits, but rather because the cost of defending the risk exceeds the risk itself. 

The EEOC has also touted another metric as evidence of its good work in FY2012, namely, the reduction in its pending Charge Inventory, which ostensibly shows that it is “serving the public more efficiently.”  According to the EEOC FY2012 PAR,

Most notably, the pending inventory of private sector charges was reduced by 7,824 charges over the FY 2011 level, bringing the level to 70,312, which reflects the second consecutive year of significant reduction in inventory since FY 2002. These results were achieved despite having received 99,412 charges . A total of 111,139 charges were resolved in FY 2012 .

But does the EEOC’s inventory reduction necessarily mean that it has served the public more efficiently over the past year? 

A Quick Look Back to FY2011: More Efficient in FY2012?

Before examining whether charge inventory reduction signifies greater efficiency (or whether such results could be achieved through less service to the public), a quick comparison to FY2011’s PAR shows pretty sluggish EEOC performance over the past year, which the FY2012 PAR does not substantively address. 

  FY2011 FY2012
Charge Intake 99,947 99,412
Charge Resolutions 112,499 111,139
Inventory Reduction 8,202 7,824
Inventory Levels 78,136 70,312

In fact, in FY2012, the EEOC took in fewer charges than the previous year for the first time since 2005.  With the passage of the ADA Amendments Act of 2008, EEOC charges have steadily increased, not decreased.  And despite taking in fewer charges, the EEOC reduced its pending inventory by nearly 400 (378) fewer charges in FY2012 (7,824) than in FY2011 (8,202). Logic dictates that with fewer charges coming in during FY2012, the EEOC should have been able to catch up, and actually top its inventory reduction record set just the year before.  The EEOC also resolved 1,360 fewer charges in FY2012 than FY2011, which establishes that the EEOC is not necessarily reducing its inventory through resolutions, but mere dismissals.  Thus, according to the EEOC’s own statistics, the EEOC is apparently becoming less efficient over time.

Paradoxically, the EEOC credited its outreach efforts for FY2011’s historic intake of charges, claiming that employees must have become more aware of their federally protected rights.  Does the fact that 532 fewer workers filed EEOC charges in FY2012 than in FY2011 show that workers have become less aware of their rights? Or, could it show that employers have become more compliant, such that there are fewer “violations” about which to file charges?  Either interpretation seems reasonable. 

More Perfunctory/More Discriminating

Having served the EEOC in Denver under the Clinton Administration (1997-2000), I admittedly have an extremely jaundiced view of the EEOC’s intake, investigative, and conciliation processes.  Since the EEOC’s adoption of Priority Charge Handling Procedures (PCHP) in 1995, its actual review/investigative processes have become increasingly perfunctory, haphazard and discriminating, with a vast majority of charges relegated to the “B” classification wasteland in which an EEOC investigator does very little except send out notices. 

Unfortunately, the EEOC’s administrative process is confidential by statute; the EEOC’s “thought processes” are even more carefully guarded under a fortress of “governmental deliberative process” privilege.   And so, talking publicly about the EEOC’s conduct in a specific investigation poses risk to Charging Parties, employers, and their counsel, and is, therefore, taboo.  But attorneys on both sides of the employment/EEO bar have voiced concerns more recently about

  • EEOC intake investigators telling employees (even those represented by counsel) that they did not have “a case” and refusing to docket charges, thereby explaining the FY2012 reduction in charge receipts;
  • EEOC investigators, upon initial contact to employees several months after charge filing, stating that EEOC will not investigate charges without evidence of a violation;
  • EEOC investigators dismissing charges within two weeks after Intake;
  • EEOC investigators bullying employers into settlements on non-meritorious charges with threats of systemic investigations;
  • EEOC personnel “losing” files in the transfer between ADR and Enforcement Units;
  • EEOC Trial Attorneys participating actively in the investigation, which casts considerable doubt upon the investigation’s objectivity;
  • EEOC Trial Attorneys pushing seven-figure settlements in conciliation under the threat of governmental prosecution.

In reality, the EEOC faces no downside risk for issuing perfunctory dismissals and ridiculous cause determinations, retreating quickly to the comfort of the governmental deliberative process privilege when challenged.  The EEOC could, therefore, erect additional barriers in the charging, investigative, and conciliation processes that render it less efficient and effective at addressing the public’s employment discrimination concerns, while enabling it to reduce its inventory precipitously.  For example (and as commonly occurs), EEOC investigators could simply dismiss charges, particularly ones filed pro se, with a quick rubber “unable to determine” stamp, thereby reducing inventory while offering no service to the public, efficient or otherwise.  Likewise (and as commonly occurs), the EEOC could issue a perfunctory “reasonable cause” determination, forcing an employer into a settlement discussion while refusing to explain the rationale underlying the ostensible violation.  Particularly in this regard, the EEOC’s suggestion that inventory reduction is synonymous with efficient/effective public service should prompt a much-deserved eye roll from EEO practitioners. 

Ultimately, at the EEOC, “making numbers” is critically important.  Employers should pay attention, therefore, to what the EEOC counts as its “successes,” whether in terms of dollars collected in settlements, reduction of the pending charge inventory, number of reasonable cause determinations, and now more importantly, the number of pending systemic and class action investigations and civil prosecutions.  These “metrics that matter” drive and explain the EEOC’s objectives, and by extension, behavior. Only by understanding these “metrics that matter” can employers anticipate how prevent, address and intelligently allocate resources toward containing workplace EEO risk in FY2013.