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Bystander Interventions Without Paternalism or Re-victimization
Posted 02.06.18
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Jonathan A. Segal
Partner
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I am pleased to share my latest post to The SHRM Blog.

Responsible employers, among other steps, train managers on their “bystander” obligations. It is not enough to refrain from bad behavior. As a bystander with power, if you see or hear harassing behavior, you must respond to it. But how?

Let’s take a “hypothetical.” A business meeting takes place among executives.  There are four men and one woman.  During the meeting, the group realizes they are not going to meet Wall Street’s expectations. One of the men snaps “oh F…”

After he said it, the F bomber looks to the one woman at the table and says, “I’m sorry.” Another man at the table digs the hole deeper by adding:   “He did not mean to offend you.” [How did he know that?]

By focusing on the one woman at the table, both male executives not only drew attention to her (re-victimization) but also suggested that she was a fragile creature who needed to be rescued and protected from their vulgar mouths (paternalism).

In this hypothetical, the woman was not offended by the expletive when it was used in response to bad economic news.  But she certainly did not like the attention being placed on her.  Having finished reading Jane Austin, she was not going to fall off her Victorian chair because of a curse word.

In this case, if anything were to be said, it should have been: “let’s keep it professional” but without focusing on the woman.

Change the facts: what if what was said was a “joke” that demeaned women? Should not someone apologize to her now?

NO!  Again, that only makes her the focus.  In other words, it makes it worse.  Plus, it suggests, were she not there, the demeaning comment would have been okay.

The focus should be on the person who made the comment.  Looking at the person who said it, someone with power (including HR) should say: “That is offensive to me. We will talk later.”

Respond “in the moment” so that others do not assume your silence is complicity. Then, take appropriate corrective action more confidentially.

Preventing harassment is more than preventing liability; it is about preventing harm. We need to train on “in the moment:” responses to bad behavior, or we may create harm in the process of trying to correct it.

THIS BLOG SHOULD NOT BE CONSTRUED AS LEGAL ADVICE, PERTAINING TO SPECIFIC FACTUAL SITUATION OR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

About Jonathan A. Segal
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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 .