The Limitations of Human Resource Departments in the Case of Sexual Harassment

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Like many of you, I have seen multiple stories this week in reaction to the blog post of Susan Fowler about her time at Uber. I don’t often weigh in on viral stories, but in this case I have some insights to share. I worked in HR for a large corporation in the late 90s, early 00s and although things have changed a bit, there seem to be some pretty large misconceptions about what Human Resources departments are actually able to do for their employees.

Ms. Fowler tells the story about how her manager propositioned her on her first day out of training on his team. This is how it went down:

“He was in an open relationship, he said, and his girlfriend was having an easy time finding new partners but he wasn’t. He was trying to stay out of trouble at work, he said, but he couldn’t help getting in trouble, because he was looking for women to have sex with. It was clear that he was trying to get me to have sex with him, and it was so clearly out of line that I immediately took screenshots of these chat messages and reported him to HR.”

In this exchange, he readily admits that he has been in trouble at work before because of his propositioning behaviors. The difficulties he has had have not however, discouraged him from getting himself into trouble again. This means that he had already been talked to. Nonetheless, the “stern talking-to” he got each time had no teeth in it to affect his job and therefore didn’t discourage his behavior at all. To him, the chance of meeting a willing sexual partner trumped any “discipline” directed at him. HR could not affect his job in any tangible way that mattered to him.

The Sexual Harassment section of the U.S. EEOC Regulations are written this way regarding isolated incidents:

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). [Source: US EEOC]

The part I have bolded is important because the issue with this manager would have been actionable if and only if his pursuit of a sexual relationship with a co-worker/employee was an ongoing effort even after the other person expressed a lack of interest. The important thing to note is that this manager racked up “first offenses” with more than one employee. He was allowed one “freebie” per person. It is very likely that this point wasn’t explained to Ms. Fowler. Human Resource issues are strictly confidential so she would not have been told about any other employee issues with this manager either and only found out about them when talking to other employees.

Although this manager showed a clear lack of maturity and decorum with his fellow staff members, his behavior did not cancel out his contribution to the company. Make no mistake, in business an employee’s contribution to the bottom line is ALWAYS the first consideration in any issue brought up about them. Businesses exist to make money, not make friends or create perfect microcosms where no one is ever hurt or offended.

Another point to remember is that not everyone will react the same way to this kind of sexual behavior. So it is possible that not everyone who was propositioned by this manager even reported the issue. They may not have even been moved to do so. Women are not monolith in how they react and respond to sexual advances or disclosures like the one this manager made. It is a mistake to assume that it negatively impacted all of the female staff in the same way and that the most severe reaction was the yardstick by which HR made their call about what disciplinary actions were appropriate. Federal Laws dictate the responsibility of any HR department in any employer with more than 15 employees but those laws are always open to interpretation. Although we would like it if the law could protect even the most vulnerable, it is not set up that way and likely never will be. The sad but immutable fact is that the business of business is making money, not making people comfortable. Laws will very likely never be written to accommodate employee issues to an extreme degree where the ability for an employer to make money and stay in business is compromised.

There is something very important to remember about limitations of any Human Resources department. They are not set up to be able to eradicate all mention of sex in the workplace. HR departments don’t have the power of teachers or parents to snuff out inappropriate sexual conversation because they are dealing with adults and not children. If anyone has given you the impression that a business will be able to dictate the behavior of its adult employees, they have thoroughly misled you. Code of Conduct documents exist to direct the professional behavior of staff but they cannot control it. It is very important that you as an employee find a culture that best fits your ideals and vision of an employer. The onus is on you to find where you fit and are comfortable, not the other way around. Employers will never be able to stop people from flirting or finding significant others at work. That is not something that can or should be regulated or controlled.

The above opinions are my two cents only which don’t represent the opinions of any company past or present that I have ever been employed by.

Are there any other HR employees who want to weigh in on this issue too? Am I off base here? Do you have any questions, comments, observations, or insights of your own to share? We welcome and encourage responses below.

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