Sexual Harassment Grievances Are Never Easy
They can be really difficult when one member is accusing another one of inappropriate behavior
In the last installment of the Steward's Sourcebook, we discussed the difficulty of representing both members involved in a dispute, specifically a fistfight. In this issue, we're looking at another problem that frequently pits one member against another -- grievances that arise from sexual harassment.
Even when they don't involve conflicts among members, these cases present a challenge, because people have many different emotional responses to this type of allegation. Responding to all of your members' concerns can get difficult. You can make it easier on yourself by never straying from your true objective: to ensure that all members are treated fairly.
Of course, that's easy to say in the abstract. It isn't as easy when a person you know claims to have been subjected to some ugly behavior; nor is it easy when a friend of yours is being accused of something you can't believe that person would do.
Two rock-hard principles should guide you in handling a sexual harassment grievance. First, the union does not condone or tolerate sexual harassment in any situation. Second, the union's role in any grievance is to make sure that all union members are treated fairly, no matter what they have been accused of or who does the accusing.
When members accuse you of taking the wrong side or trying to play both sides instead of taking a stand, you may have some success explaining your role in the grievance by drawing the analogy of the court-appointed attorney.
When a person is charged with a crime, the state offers to provide the accused an attorney if he or she can't afford one. In this case, the state is working on both sides. They have a prosecutor trying to convict the person, and they also pay for an attorney to represent the person.
The reason for the state-appointed attorney is to protect the accused person's Constitutional right to a fair trial. No matter what a person is accused of, he or she is entitled to a fair trial. In the U.S. and Canada, this right is sacred. It is sacred in unions as well.
A grievance is very similar to a legal case in court. Someone is accused of something, and the grievance procedure is used to make sure that the accused person is treated fairly. The grievance process determines guilt and assigns punishment. Your job is to protect every member's rights, regardless of what has happened.
Study The Company's Sexual Harassment Policy
One of the first things you will want to look at when handling a sexual harassment grievance is the company's policy for handling sexual harassment complaints. Nearly every company has developed one.
The company's policy should provide a procedure for making these complaints that protects both the accused and the accuser. Unlike some other complaints, a person who accuses another of sexual harassment may become the subject of further abuse by other workers -- sometimes inadvertently. For example, if details of an embarrassing incident become known on the shop floor, other workers may gossip about what happened, causing more embarrassment for the accuser.
In other cases, workers may retaliate against the accuser for going against their friend. They may believe the accuser just has a grudge or is not telling the whole story. You may remember when law professor Anita Hill accused Supreme Court nominee Clarence Thomas of sexual harassment during his confirmation hearing. Her motives were called into question. Some of Thomas's supporters even "leaked" phony stories about her romantic life. In the end, the truth was very difficult to discern. The same sort of behaviors often come into play on the shop floor. Even if one of your members is accusing a supervisor of harassment, other members may not approve of his or her actions. And when two members are involved, one the accuser and one the accused, emotions can run very high.
That is why your company policy should provide a way for workers to make their complaints in private, to a person specifically designated to hear that type of complaint. These complaints should remain confidential, as much as possible.
And the company should guarantee that they, too, will not retaliate against an accuser, unless they can show that the person maliciously put forward a case just for revenge or other personal reasons and there is no doubt that no harassment ever occurred.
Most company policies include a "zero tolerance" clause, promising to deal with allegations quickly and to use drastic measures to stop harassment when necessary. Flagrant harassers or employees who engage in especially odious behavior are usually fired.
Whatever your company's policy, every worker is entitled to work in a harassment-free environment.
Sexual Harassment Takes Many Different Forms
Many different kinds of behavior can be termed sexual harassment.
Supervisors are engaging in sexual harassment when they tie a company reward to any kind of sexual conduct. The clearest form is the boss who says he'll give you that promotion you've applied for if you slip into his office and satisfy him. This kind of offer is often called a quid pro quo, a Latin phrase meaning "this for that."
Sex does not have to be directly mentioned for this kind of offer to be sexual harassment. For example, if your boss says he'll move you to a better shift if you'll have dinner with him, he is making a quid pro quo offer. He has linked your going on a date with him to your gaining an advantage at work.
Another kind of sexual harassment does not involve a quid pro quo offer, but arises when a supervisor or a co-worker engages in sexually inappropriate conduct with a worker. Examples would be a boss who exposes himself to one of his employees, or a worker who touches a co-worker in a sexual way.
Sometimes this type of harassment can be difficult to discern, such as the supervisor who brushes against female employees when he passes them in the line. Is his motive sexual, or does he just need to lose a few pounds so he can fit through the space?
Workers do not have to tolerate unwanted sexual advances or put up with a sexually oppressive work environment. For example, if the boss loves to tell dirty jokes, even though he knows that some of the people under him are offended by them, he is creating an oppressive environment.
The sexually oppressive atmosphere is a gray area. People like to have a good time at work, so sometimes jokes and casual conversation can get pretty spicy. It also isn't unusual for a worker to ask another one for a date. That raises the question, how do you know when someone has crossed the line from acceptable behavior to unacceptable?
The answer is that each person creates his or her own line, and when someone crosses it, he or she says so. If the person has been warned but continues to cross that line, then the behavior becomes sexual harassment.
Collecting and Documenting Evidence is Essential
The key to good representation is always to collect and document the evidence. In sexual harassment cases, documentation is even more important.
Let's say Trisha goes to her supervisor and tells him that Greg is touching her inappropriately when they pass closely, which they often have to do in their tight workspace. Trisha says that lots of other women have had the same experience. She offers to bring them forward, but the supervisor says he's too busy to bother with that; he'll just talk to Greg. Then he tells Greg in front of several witnesses that if he hears one more time about Greg's roaming hands, Greg is gone.
Naturally, word gets around the shop floor pretty quickly. Greg puts up with a lot of teasing from his buddies, and there is a lot of speculation about who made the complaint to the supervisor. But a week later, there's a new topic for gossip, and Greg is forgotten.
Then Trisha goes to her supervisor with another complaint. She says Greg stopped touching her, but just before the lunch break he positioned himself where no one but she could see him and exposed himself to her.
The supervisor goes directly to Greg and tells him to clock out, that he is fired. When Greg asks why, the supervisor says the company has a zero-tolerance sexual harassment policy, which gives him the authority to fire Greg.
Now Greg is furious. He demands to know who has accused him. When the supervisor says that is confidential, Greg storms out of the shop, but not before telling his friends what he thinks of the supervisor and the b___ who is telling lies about him.
After work, you find him and six of his friends in the parking lot. They demand that you get him his job back and get his accuser fired. They say there is no way he would harass anyone. Two of his friends are female. One of them tells you she knows who accused him and it's all a bunch of lies.
How do you handle this one?
Clearly, you're in for a lot of work, and you haven't even run into Trisha or her friends yet. You know that when you do they're going to be angry with you for taking up his case.
You start by looking at the company's sexual harassment policy and what your contract says about discharging workers for misconduct.
The supervisor's actions may have been hasty. He should have interviewed those women that Trisha talked about. He may have violated the contract or even the company's sexual harassment policy.
You'll need to take a statement from Greg, and you should ask his friends whether they would be willing to testify regarding his good character. Have them write their statements down and sign them. An unsigned statement is not worth much.
Of course, when Trisha hears that you're trying to get Greg's job back, she'll probably have a few things to say to you. But your job is to protect Greg's rights as well as hers.
And you'll be sure to interview those other women that the supervisor was too busy to bother with, along with the witnesses that heard the boss warn Greg to keep his hands to himself.
Now let's look at this same scenario, except that the supervisor doesn't fire Greg. Instead, he tells Trisha he thinks she's lying and maybe she made the whole thing up. She comes to you demanding that you make the company fire Greg or move him to another location.
What would you do differently?
Not much, really, because you still need to understand the company's policy, and you still need to take statements from anyone with information that will help you find the truth.
No matter what the grievance is about, the evidence guides your actions.