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Jonathan A. Segal
Partner
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I am pleased to share my latest post to The SHRM Blog regarding HR and the holidays.

You are an exhausted HR professional charged with making the holidays lively without inviting lawsuits. On the day of your company’s holiday party, you walk into the lobby of your building and see the elegant Christmas pine that you had helped decorate. As you behold it in its twinkling glory, a co-worker says, “That tree is inappropriate in the workplace.”

The co-worker is wrong. It is beautiful; Christmas can and should be acknowledged—so says the Jewish guy who wears his grandmother’s chai. By the way, Chai is a Hebrew letter that means “life,” and I proudly wear my grandmother’s pendant (and my grandfather’s ring).

There’s no reason to remove symbols of Christmas from holiday decorations. But recognize other holidays, too. A Hanukkah menorah and a Kwanzaa harvest basket would be nice additions.

By the way, size does matter. Imagine the message of five life-sized reindeer next to a Kwanza basket the size of a soup bowl.
Your encounter in the lobby, however, is just the beginning of a day of seasonal challenges.

In the elevator, you hear employees complaining about the holiday party. “I don’t want to go, but I feel like I have to,” one says. You take out a lawfully-prescribed pill. You filled the prescription after the last holiday party.

Of course, you would love to say, “Please, if you don’t want to go, by all means, don’t. Your present to me would be the absence of your presence.” It’s OK to think it, but please don’t say it (unless you are retiring at the end of the year). If you are planning on retiring: go for it (and tell me about it!).

In fact, unless the holiday party is scheduled during working hours, be careful not to require, or even strongly encourage, employees to attend—or else you may ring in the New Year with a wage and hour claim. Yes, Virginia, there is a chance an employee may claim the party is work.

Another person in the elevator is upset that the gathering is not called a Christmas party, while still another says that, as an atheist, she objects that there is any party at all. Oy vey, you think. Okay, perhaps I am projecting my thoughts and words on to you. But you get the idea.

Usually, it’s best to call your shindig a holiday party or seasonal celebration to maximize inclusion, but it is more than OK to mention the various holidays celebrated, including Christmas. In fact, please do. Inclusion does not mean eliminating anything that is not universally shared. It is the opposite!

As the elevator door opens to your floor, you see a large menorah with lit candles. Your receptionist thought it would add meaning to the season.

First, address the fire hazard by blowing out the candles (but don’t make a wish). Second, make it clear that employees cannot put up whatever decorations they want, wherever they want.

Reasonable guardrails can be established. There is a big difference between an employee’s office or work station and a public area, for example.

Two people are waiting for you in your office. One is dismayed that a co-worker gave him a thong as a holiday gift. The other is unhappy that there are no decorations recognizing the Buddhist holiday of Bodhi Day.

To prevent the first headache, let workers know that gifts must be appropriate. Tell them that excludes anything sexual, or otherwise inconsistent, with your equal employment opportunity (EEO) policy.

Consider also how you will deal with gifts of alcohol. What if you prohibit its possession on your premises?

Now, here comes my keen legal prowess: Send an e-mail to employees that reads, “If you receive alcohol as a gift, do not open or consume it at work, and please take it home the day you get it.”

As for decorations, invite people to make suggestions before you put them up. You can maximize spiritual inclusion if you involve employees in the process.

Okay, it’s “party time.” You run so quickly to the bar that you don’t even realize that you have knocked over two colleagues in your zest to get there.

Be careful. Control the amount of alcohol you choose to provide, as well as how much you yourself imbibe.

We know from the EEOC that alcohol is a risk factor relative to harassment. We also know that it poses serious safety risks relative to driving.

Ensure that you serve plenty of nonalcoholic beverages and food, too. Egg rolls are a must (inside joke).

Provide vouchers for cab rides home. Flag aggressively, etc.

Another way to minimize legal risk and help those in need: Consider charging for drinks and donating all of the money to a charity (and matching the amount collected). You want the charity to appeal to all or nearly all.

Here’s my chance to raise my personal passion: give to your local animal welfare rescue. And, consider adopting a four-legged friend, in particular, an older cat or dog (unless you have too much unconditional love in your life).

Following a chat with your CEO at the party, you notice two employees dancing suggestively. There is also a love train of employees, in which everyone puts their hands in the pockets of the person in front of them. Well, they intend the pockets but I am not sure that is where there hands end up. I won’t go any further, at least not here.

Because of situations like these, every year around this time there is a bonanza for plaintiffs’ lawyers: “Were you groped at your holiday party? Witness employees grinding on the dance floor? Call 1-800-IRETIRE.”

To minimize the likelihood that workers will have cause to contact one of these lawyers, remind employees that your EEO policy applies to social events and respond quickly and firmly to inappropriate behavior. Reminder, if you are in HR, there is no such thing as being a passive bystander if you see or hear inappropriate conduct or comments. To ignore is to condone.

And pay attention to the music, too. If music will be played, focus on what it will be.

At the risk of showing my age, Rod Stewart’s “Do Ya Think I’m Sexy?” would not be my first choice. There is no good answer to Rod’s question!

Snoop Dogg’s “Sensual Seduction” isn’t much better. The problem with this title? Both words.

But somewhere between Snoop Dogg and Barry Manilow is an appropriate middle ground. May I suggest Adele?

And don’t worry about playing Springsteen’s “Santa Claus Is Coming to Town.” But that’s about as religious as you probably should get.
You hear discussions about an unofficial after-party. You know it is safer to swim in a lava pit than to attend an after-party. So you run to your office.

You read through the holiday cards on your desk. Many are blank because no one knows what to say. If you say “Happy Holidays,” are you declaring war on Christmas? If you say “Merry Christmas,” are you disrespecting your Muslim colleagues?

A generic “Season’s Greetings” works best. But if you know the faith of the recipient, it is more than OK to customize. I always wish my Christian friends “Merry Christmas.” And I like it when people wish me “Happy Hanukkah” if they know I am Jewish. I am less happy if they do so because they think I look Jewish.

Yes, there are risks everywhere you turn. But these risks can be managed with thoughtful planning.

So, HR, let’s do what we do best: think and then balance. And now, I shall try to do the same.

If you celebrate Christmas, Hanukkah or Kwanzaa, I wish you a peaceful and meaningful holiday that corresponds with your faith. If you observe another holiday now, I apologize for not referencing it by name, but I give you my good wishes just the same, as I do for those who recognize no holidays or who celebrate at another time of year.

May peace be with all!

And, please, be good to each other.

About Jonathan A. Segal
1221
author_image
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .
1218
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Jonathan A. Segal
Partner
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I am pleased to share my latest SHRM post reflecting on the EEOC’s report regarding harassment in the workplace.

The recent release of the Equal Employment Opportunity Commission (EEOC) report on sexual harassment shouldn’t be cause for a collective yawn. Rather, the report contains the seeds for great ideas to fight harassment of all stripes, including that based on race, gender, national origin and religion.

EEOC Chair Jenny Yang first announced the creation of a Select Task Force on the Study of Harassment in the Workplace early last year, and her message then was simple: We have made a lot of progress, but the problem persists.

Fast-forward to June, which was the 30th anniversary of the Supreme Court’s recognition that sexual harassment is a form of sex discrimination. After more than a year of study, including numerous public hearings, EEOC commissioners Chai Feldblum and Victoria Lipnic issued their report.

One key aspect of the study is the importance of training supervisors and management. Let’s focus on the following 17 tips for upgrading your training that are based not only on specific recommendations from EEOC commissioners but also on my own advice. (Note: While I served on the task force, I speak for neither the EEOC nor the task force.)

1. Ensure that the training is interactive and facilitated by a qualified trainer. If your employees are passive participants, the training will not achieve its full potential. Ideally, the training should be live. If that is not feasible for cost reasons or because employees are geographically dispersed, you can consider an online alternative, but it should have an interactive component.

2. Confirm that support comes from the highest levels. Without the endorsement of senior leaders, the training likely will be seen as a mere “check-the-box” exercise. Executives should attend the event and ideally provide opening or closing comments. Leaders must make it clear that everyone will be held accountable for complying with the requirements covered in the training.

3. Clarify that the training should be taken seriously. The purpose of this exercise is not simply to sensitize supervisors; it is to help them keep their jobs. Make it clear that the employer, like the courts, holds supervisors to a higher standard than other employees.

4. Emphasize the business risks of engaging in or tolerating harassing behaviors. Such risks include lost productivity, lower employee retention and the employer’s tarnished reputation. Simply put, harassment is bad for business.

5. Provide specific examples of unacceptable behaviors as opposed to making general statements. Examples must be customized so that they resonate in your workplace. Canned training is a waste of everyone’s time.

6. Focus on risk factors that increase the likelihood that harassment will be tolerated. These include a homogenous workforce and workers who are dependent on customers’ tips and may be afraid to speak up. Supervisor training must focus on how these risk factors may increase the potential for harassment so that managers can address problems before they occur.

7. Emphasize what is unacceptable vs. what is illegal. Employers don’t want to suggest that behavior is unlawful when it might not be. For example, in most cases, one comment is not actionable. You also don’t want to imply that unacceptable behavior is OK simply because it is not significant or pervasive enough to violate the law.

8. Describe both severe and subtle examples of harassment. If employers don’t include the less obvious examples, supervisors may define harassing behavior too narrowly. On the other hand, if blatant behaviors are excluded, managers may fail to address what they cannot imagine anyone doing even when it does indeed take place.

9. Address unlawful harassment in all its forms. Harassment can be based on a person’s race, ethnicity or religion. And don’t forget that gender-based harassment, even if it is not sexual in nature, is also against the law.

10. Provide supervisors with guidance on how to respond in the moment. If supervisors aren’t taught what to say from the very moment an employee reports harassment to them, they may say something unwise such as, “That doesn’t sound like Mark.” Make it simple: Supervisors should say, “Thank you for bringing your concerns to my attention. We take them very seriously.”

11. Emphasize that supervisors cannot promise absolute confidentiality. Managers should report all complaints to HR as a matter of course. However, if they aren’t informed of this step in advance, and they agree to an employee’s request to keep a complaint confidential, then they cannot tell anyone, despite the legal and business risks that go with having notice and doing nothing.

12. Train supervisors to respond proactively to unacceptable conduct. Managers who see, hear or otherwise become aware of harassing behavior should follow up, even in the absence of a complaint. To be silent is to condone. This is why the EEOC recommends that so-called bystander training be incorporated into supervisory education efforts. This type of training is based on the premise that witnesses or others who become aware of harassing behavior (bystanders) play a key role in stamping out harassment.

13. Emphasize nonretaliation. Fear of retaliation is the primary reason employees do not raise concerns when they should. Employers must define retaliation as broadly as the law in terms of who is protected (not just complainants) and what is prohibited (not just discipline and discharge). Examples of other prohibited retaliatory actions include changing the amount of work given to employees, shifting the nature of assigned tasks and excluding workers from key meetings. Emphasize that retaliation of any kind against a person who reports or witnesses harassment will be met with immediate and proportionate corrective action.

14. Provide civility training. Even though rude or uncivil behavior is not unlawful unless it relates to a protected group, incivility is the gateway to harassing behavior. Therefore, the EEOC recommends that employers conduct civility training. True, civility training can create problems with the National Labor Relations Board. But for supervisors who are not covered under the National Labor Relations Act (NLRA), such training can be infused not only into anti-harassment training but also performance management training without risk of violating the NLRA, if structured properly.

15. Use humor carefully. Appropriate humor can sometimes ease tension so that participants are more open to the training, but it is very important not to minimize the seriousness of the issue. In my experience, humor is best used to poke fun at those who defend inappropriate behavior: “He really thought that if he called her at home off the clock to share his lustful feelings for her, it was not harassment. Perhaps he should be fired for both harassment and stupidity.”

16. Evaluate and re-evaluate. Elicit specific feedback about what resonated with employees and what they want to know more about. Discuss which behaviors do not qualify as harassment, such as a nondiscriminatory but tough management style.

17. Convey that the solution is not to avoid those who are different from us. Trying to avoid harassment claims by avoiding certain groups of employees altogether may constitute unlawful discrimination. Provide specific examples on how supervisors can engage in mentoring and promote social inclusion within a diverse workforce.

About Jonathan A. Segal
1218
author_image
Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .