Über die Autorin bzw. den Autor

Steve M. Cohen, Ed. D. is President of Labor Management Advisory Group, Inc. Often described as a "corporate hit man" for his ability to skillfully resolve people problems for vulnerable organizations, Dr. Cohen is a well-known national authority who protects companies from HR bombshells that include issues of sexual harassment, motivational management, workforce diversity, employee training, and bottom-line productivity. Dr. Cohen has over 35 years of specialized experience safeguarding businesses and nonprofit agencies with staff sizes that range from 2 to 17,000 employees. Typically contacted when a company is in crisis, facing potential lawsuits, or when immediate preventative measures must be executed, Dr. Cohen quickly and adeptly assesses company infrastructures and implements management changes that align with legal/regulatory requirements. He frequently serves as the temporary chief Human Resources officer for organizations that lack the appropriate internal staff to handle complicated or highly sensitive personnel dilemmas. Dr. Cohen has an MA in Public Administration from Central Michigan University, an Ed. D in Educational Psychology from Northern Illinois University, and received certification in Alternative Dispute Resolution from DePaul University, School of Law.

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Contents

Introduction.........................................................................................................................3Chapter 1 Sexual Harassment: The Credit Union Mess...................................................................................13Chapter 2 Avoiding Race-Based Discrimination: The High Performance Misfit............................................................31Chapter 3 Nepotism and Organizational Integrity: The Case of the Office Sniper and Agitator..........................................46Chapter 4 Poor Leadership and Vendettas: The Police Chief Doesn't Like the Lieutenant................................................56Chapter 5 Unethical Acts and Contentious Boards: The County Health Department—the Hatfields and the McCoys.....................71Chapter 6 Cultural Differences: A Tale of Two Thresholds.............................................................................87Chapter 7 Overt, Inadvertent, and Opportunistic Acts: Katrina and the Office Clown...................................................102Chapter 8 Counseling vs. Termination: Two Who Almost Crossed the Line................................................................116Chapter 9 Health Issues and the Law: Two Cases—Two Pariahs.....................................................................133HR On-Call Solutions.................................................................................................................156

Chapter One

This was a fascinating multi-dimensional case. It started out as a straightforward sexual harassment case but, as they often do, it mushroomed into something quite a bit bigger. I was originally contacted by the CEO (Chief Executive Officer) of a $65 million credit union affiliated with a federal agency based on the East Coast. Called to the corporate offices, I was asked to conduct an investigation of several allegations of sexual harassment made by a female employee against the male CIO (Chief Information Officer).

I questioned the CEO, Joan, about the credit union's sexual harassment prevention policy, its experience with the policy, practices, organizational structure, and relationship with its board of directors, gathering information that would give me an overview of the organization. Joan had been with the credit union for ten years with her last five as its CEO. She was a CPA by training.

It appeared to me that Joan and her board had a negative, or at least a strange relationship. She told me that she was rarely invited to attend board meetings and usually found out what the board discussed by reading it in the meeting minutes. I insisted that if I were hired, I would be granted an audience with the board, as I wanted to have direct access to the board to make my report. I insisted on this audience not only because I heard this little voice in the back of my head saying something was weird here, but also because sometimes the leader of an organization can be a part of the problem. He or she can directly or indirectly enable the misbehavior to occur and/or continue. If Joan were a part of the problem, I didn't want to be let go and my report thrown into the circular file, never to be read or seen again. She wasn't happy with my request, but she agreed.

Before I go into the case, it will be helpful to understand the law and what is expected of an organization as it relates to sexual harassment. The definition of sexual harassment is deceivingly simple. It is "unwelcome, unsolicited and unreciprocated behavior of a sexual nature." The law is clear. If sexual harassment has happened in the workplace, there is a violation of one of the elements of the Civil Rights Act of 1964. However, personal interpretation of sexual harassment makes this "clear" law complicated. What is behavior of a sexual nature? Could be anything. It could be inappropriate touching, but then what kind of touching is inappropriate? Is touching a person's arm or shoulder inappropriate? Usually not but for some or in some circumstances, it could be. Is touching a woman's breast or buttocks at work inappropriate? It usually is, but in some circumstances it may have been an accident and acceptable to the person touched. Behavior of a sexual nature could be jokes told between people, pictures or "pinup" type posters on the walls of the workplace, leering or gestures. The reality is that it could be almost anything.

This leads into another complicated question: Was the behavior unwelcome? If the behavior was of a sexual nature but welcomed, then there was no sexual harassment. Yet, there is actually a situation where welcomed behavior of a sexual nature could still be sexual harassment. What about behavior that was welcomed and acceptable yesterday, but not welcomed and unacceptable the next? What about behavior that was not welcomed by one person, but the same behavior was welcomed by someone else? One can see that the situation gets complicated fast.

There are several other "problems" with the definition. One of the most important questions is: How is the behavior to be judged? This one has an interesting answer. When judging the behavior, the law requires the following question to be asked: Would a reasonable woman find the behavior to be offensive? The question is not would a reasonable man or a reasonable person find the behavior to be offensive. The salient question is would a reasonable woman find the behavior to be offensive. If the answer is yes and the behavior was unwelcome, unsolicited and unreciprocated behavior of a sexual nature, you probably have sexual harassment.

It is important to note that sexual harassment manifests itself in the workplace in three ways. There is quid pro quo sexual harassment, sexual harassment by sexual favoritism, and sexual harassment by hostile environment. Quid pro quo is a Latin word that means "this for that." We do quid pro quos all the time. For example, you go to the store and exchange money for product. Nothing wrong with that. In a context of sexual harassment, it becomes: You do a sexual favor for me, and I will do something for you. Sexual harassment by sexual favoritism is very similar. It looks like this: You do a sexual favor for me, and I will give you the favored shift, approval to attend the seminar you want to attend, or give you the job/raise you are seeking. Sexual harassment by hostile environment is a bit more complicated and the most prevalent in the workplace. It is behavior of a sexual nature that is less direct or obvious as it is behavior that creates a hostile environment. Even though it may be less threatening, it is sexual harassment just the same.

There is one more distinction in the law that you should know both for self-preservation, as well as for following this case. If quid pro quo sexual harassment or sexual harassment by sexual favoritism occurs just one time, it is sexual harassment with all the penalties and costs that go with it. If hostile work environment sexual behavior occurs just once, it is not sexual harassment. It may be tacky, unwelcome, and inappropriate, but if it occurs just once, it is not sexual harassment. In order to have sexual harassment by hostile environment, the behavior must occur in a pattern. Anything more than once is considered a pattern. Let's put this into a concrete example: Joe is the office...