Mini-skirt Monday?

According to The Salt Lake Tribune, a federal complaint filed last week alleges that a male supervisor took the notion of a dress code a bit too far by attempting to require a female employee to observe “Mini-skirt Monday,” “Tube-top Tuesday” and other highly inappropriate attire-based days. He also allegedly engaged in numerous other unlawful activities, including filling the office air with a spray that was “intended to arouse women.”

Harassment = Big $$$

As we have discussed on numerous occasions, the EEOC, judges and juries hate it when employers fail to take workplace harassment seriously. In fact, some of the biggest lawsuit payouts in the past year were in harassment cases, including:

• $95 million in a case featuring an alleged assault and failure to respond to a hotline complaint as well as a contention that the employer only took the matter seriously after police showed up on the premises.
• $10 million where an executive allegedly propositioned a receptionist, read obscene e-mails out loud and then retaliated when she complained.
• $8 million for an alleged “pattern and practice” of assaults, propositions and crude comments.

What Employers Should Do

Want to join the above dishonor roll? It’s easy. Just: (1) believe the sexual harassment is a thing of the past, (2) fail to ensure that your anti-harassment policies and training are up-to-date, (3) don’t promptly and thoroughly investigate all claims of harassment (especially those against executives) and (4) don’t protect those who complain of harassment from retaliation.

If you’d prefer to do the right thing and stay out of court, click here for our handy Harassment Cheat Sheet, here for our Investigation Tool Kit and please please please do the opposite of everything in the preceding paragraph.

(Special thanks to Jon Hyman for bringing this case to my attention.)

The Allegations

A male employee repeatedly complained of harassment by a female co-employee, including comments and come-ons over a one-year period. Here are the facts, according to the complainant:

• The female employee told the male employee she wanted to have a relationship that was “more than platonic.” The complainant declined.
• From then on, the female employee began to make comments about sex and repeatedly groped the complainant.
• At a holiday party, the female employee continually grabbed the complainant, forcing the complainant to leave the party.
• Upset over being spurned, the female employee filed a harassment complaint against the complainant. She later admitted it was false.
• The complainant complained numerous times of harassment to various levels of management.
• The female employee’s complaint was investigated promptly and thoroughly. The complainant’s was not.
• When he felt his claims weren’t being taken seriously, the complainant left his job and underwent psychiatric treatment for anxiety and depression.

The Settlement

The employer denied liability but paid $192,500 to settle the case and agreed to enhance its anti-harassment policies and training. Specifically, it agreed to educate its employees about female-on-male harassment.

The Lessons

There are two key take-aways: (1) ensure that your anti-harassment policies and training are broad enough to include female-on-male harassment and (2) promptly and thoroughly investigate ALL complaints of harassment.

The percentage of harassment claims filed by men with the EEOC has been rising in recent years. In fact, last year it hit an all-time high of 16.4% — an increase of 37% over the past decade.

As the EEOC attorney who handled the case said, “Sexual harassment is always unjust and illegal, regardless of the gender of the perpetrator or the victim.”

What’s a Love Contract? To protect itself from liability, an employer requires romantically intertwined employees to sign an agreement stating that (1) the relationship is 100% welcome, voluntary and consensual and (2) they will fully comply with the employer’s anti-discrimination and anti-harassment policies, including immediately reporting any and all harassment, avoiding nepotism/favoritism and working in a professional manner at all times.

The Vote. The people have spoken and it’s virtually a dead heat. Of the 151 voters in day one of our poll, 77 (51%) said love contracts are a good idea. 74 (49%) believe they’re a bad idea. That’s a marked difference from the same poll we conducted last year, which had a 61-39 bad/good split.

My Thoughts. My rather negative view of love contracts was captured quite nicely here in Newsweek. In short, it seems to me that love contracts are a form of over-lawyering that basically forces HR to act as the love police. Effectively and consistently enforce your anti-harassment policies and you should be just fine.

A quote from the Newsweek article gives a bit more depth:

Consensual relationship agreements are just another case of “overlawyering,” says Mark Toth, the chief legal officer for Manpower North America, an outplacement and employment services company based in Milwaukee. “It forces [employers] to become the love police, consistently enforcing who’s dating whom,” Toth says. And he’s not sure if such contracts will necessarily protect companies from litigation. A subordinate signing a love contract might claim that he or she signed under duress or that harassment began after the contract was signed.

One can easily imagine the following conversation taking place in a company that adopts a love contract policy:

HR:  Hello, Greg.

Greg:  Hello.

HR:  I heard you’re dating Marcia. Is that true?

Greg:  No, actually I’m dating Alice.

HR:  Oh, really? I thought Sam was dating Alice.

Greg:  No, he’s dating Carol now.

HR:  Hmm.  I thought Carol and Mike were married.

Greg:  Did you hear that Bobby’s dating Cindy? And that Jan’s dating Peter?

HR:  I quit. (Hands him a stack of love contracts.) Congratulations — you’re our new Head of HR.  Get everyone to sign one of these.

Don’t let that happen to you.

(In the interest of fairness, some lawyers and HR professional are quite fond of love contracts. Check out some of the comments to yesterday’s poll and read the full Newsweek article to get other perspectives.)

What do you do? Ever consider a love contract?

What’s a love contract? To protect itself from liability, an employer requires romantically intertwined employees to sign an agreement stating that (1) the relationship is 100% welcome, voluntary and consensual and (2) they will fully comply with the employer’s anti-discrimination and anti-harassment policies, including immediately reporting any and all harassment, avoiding nepotism/favoritism and working in a professional manner at all times.

Such contracts were relatively rare and obscure until an episode on TV’s The Office in which Michael Scott was asked by his love-interest boss to sign one. Despite the rather humorous complications that followed, that episode apparently spurred HR folks all over the country to consider adding love contracts to their risk-reduction arsenal.

It seems I get lots of questions on this topic right around this time every year. This year, I thought I’d see how YOU feel.