Same Harassment Law, Different Generations

harassment

The multi-generational workforce presents challenges for employers trying to enforce harassment policies.

Experienced HR professionals and savvy businesspeople intuitively know what to do in the event of reported workplace harassment: identify the right person(s) to gather pertinent information, gather the information then respond accordingly. React but do not overreact. Do all of that promptly. Keep things as confidential as you can, but confidentiality cannot stand in the way of gathering the necessary information. Take appropriate steps to guard against any retaliation against the complainant or anybody else involved in the situation.

In a nutshell, that is how to minimize potential liability for the employer under current laws. Those laws – Title VII of the Civil Rights Act and the major court cases interpreting it – are largely made by pre-Baby Boomers and until recent years largely administered by Boomers themselves. But do those laws always work when applied to how post-Boomer generations respond to harassment?

Less Inclination to Report

The employer’s ability to best defend itself is based on prompt and appropriate response to information it receives. But in order to respond the employer needs the information.

Blogger Penelope Trunk (born 1967, so an early Gen X-er) in 2010 identified the advice to “report sexual harassment, even if it’s just a minor infraction” as one of three pieces of terrible career advice women give each other. Once women report harassment, she wrote, HR people respond in order to protect the company (in the manner described above), which is often not in the complainant’s best career interests. Just handle the situation yourself, she counsels.

My experience strongly suggests she is not alone in this view and that Gen X and Gen Y workers are less inclined to report harassment than Boomers. Indirectly, those generations may be working against the employer’s desire to obtain information.

Avoiding the Ticking Time Bomb

An employer usually is not liable for hostile environment harassment it would not reasonably be expected to have known, but it can be hard to prove a negative. The employer would rather have the information.

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Assuming Ms. Trunk’s point is true, does it extend to also mean that post-Boomer generations are less likely to file a lawsuit if they are terminated? It is not clear that it does. Unless these younger generations are just litigious, then undisclosed harassment becomes a ticking time bomb for employers.

Policy, Training and Responsiveness

It seems likely that the law will evolve over time in some as yet unknown way as lawmakers increasingly come from those generations. The law inherently lags behind what may be optimal for the younger half of the work force.

In the meantime, this generational challenge heightens the needs for employers to have a good prevention system in place, including:

  • the right policy
  • periodic (separate) training of managers and of employees
  • a track record of responding to the information they do receive

As with most employment issues, good managers using good judgment as the eyes, ears, and spokespersons of the company are also critical to minimizing risk to the company. In short, unless and until the rules change, employers need to be able to show they were ready and willing to respond if they had known of harassment, and that employees of any generation had every opportunity to tell them.

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Managing Partner, Ohio office of Barnes & Thornburg LLP

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Article Published May 15, 2012

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