Welcome to my latest Monday Morning Briefing, as folks in the mountains of California try to dig out from under the snow, Ukraine enters its second year of war, and Los Angeles starts rolling out the red carpet in preparation for its big night this weekend – the 95th Academy Awards. Which also means my daughter in law (who works the event) and son are in town, and that makes for a happy mom.
And since they were up early on NYC time, so was I, and maybe I will get this Briefing out the door on time for once. Thank you, Kate and Aaron.
REMOTE WORK AND NEW SOCIAL MEDIA TRENDS CREATE NEW CHALLENGES BUT SAME OLD THEMES
I don’t write about sexual harassment all that much, because, well, it’s a bit “same old same old.” If you have taken my training classes, you know I somewhat sarcastically talk about the fact that sexual harassment has been in the news as long as I have been teaching these classes, which is over 30 years, and no doubt always will be, because we are human.
The reason for discussing it now is because we are seeing sexual harassment manifest a little differently as our world and technology changes. However, that only means that our training and HR resources need to evolve to stay ahead of these issues.
My first example involves an issue we have seen grow as workplaces went remote in 2020, and that is harassment conducted over video or other live chats. Recently, a women who works in corporate sales publicly shamed several vendors on TikTok, and her story went viral accordingly. She was holding a Zoom meeting so that a few sales reps could pitch her company on some new products, and the sales reps started a group chat discussing how hot she looked and what they wanted to do about it. Unfortunately, one of the reps mistakenly shared the group chat with her. She then shared it with the world.
I know I have covered this in previous articles, but living behind the cover of a computer, phone, or any other screen should not give anyone the freedom to act or keep acting like jerks. Since the pandemic, I have heard stories of employees being harassed by direct team chat messages, pictures sent via group chat, and of course, there was the early story of Jeffrey Toobin inadvertently being “caught with his pants down” on camera during the Presidential debates prep. Hopefully at least the professionals have gotten better with their zoom features since then.
Many articles I pulled up about the above story described the sales rep’s chat as “locker room” talk. If I recall, I think this is how then candidate Trump described his conversation with Billy Bush that was caught by Access Hollywood before the 2016 election. Why do we call it “locker room” talk? That implies that this is somehow normal or even healthy conversation between boys or young athletes after sports, right? But all of that is crap. This isn’t a locker room. And these aren’t boys or young men on a sports team. These are grown men in a work setting. And in this case, these men were actually trying to sell a product to that woman, who was their customer! (by the way, what is the likelihood she buys from any of these assholes, do we think?)
I do not fault men for being men, or women for being women, for that matter. As I said, humans will be humans, and in many cases, are sexual beings. But that does NOT mean that every single one of us can’t keep a lid on that AT WORK. We all have that ability. It’s just a matter of professionalism and respect. Just make that choice. Use the grandmother test. Would you act this way either to or in front of your grandmother? Or if you are like me, and your grandmother has long ago passed, in front of your daughter/niece/grandson – pick someone you adore.
The next story comes from one of my clients (with his permission). Some of you may know the online platform “OnlyFans.” I had not. It apparently is based out of the UK, and it allows its users to create content and share with the public for a monthly subscription. Fitness trainers, models, and other content creators utilize the platform to grow their fanbase. However, unlike Instagram, YouTube or Snapchat, OnlyFans allows very explicit sexual content, which creates a much darker side of this platform. I won’t go into the political issues surrounding this site; you can all research them yourselves, as I have now done. But let’s just say that many use the site to make private pornographic pictures or movies of themselves, and then charge the public to watch. As long as it doesn’t involved children, all of it is legal.
Such was apparently the case with one of my client’s employees, unbeknownst to the client. They only discovered this because a co-worker of the employee discovered her OnlyFans page and began viewing it. That’s fine, he paid her to do so. But then he started showing it to mutual co-workers – at the store where they both worked. Management became aware when the employee who made the page stopped coming to work because she felt too – embarrassed. She never brought it to management’s attention.
So where are the problem behaviors? First, we have an employee showing pornography at work. That’s a pretty clear cut violation of the harassment policy. We can get into the debate about (a) yes, he knew it was a co-worker, and (b) she consented to her body being shown publicly, but none of that changes the simple fact that this employee was showing pornography at work. Apparently, multiple times. He could have easily shown this to people OUTSIDE of work. He made a different choice. I think that’s probably a terminable offense.
Second problem behavior, we have an employee who just stopped coming to work. Frankly, she made the page, and she knew it was public. Was it a problem that the page was being shown in the workplace? Yes. But her way of dealing with it should not have been to just ditch work, with no word to management. I don’t know that I would fire her. I would absolutely counsel her and make sure she understands her accountability in this situation.
Do we or should we prohibit employees from engaging in this type of behavior outside of work in order to reduce the likelihood of these incidents occurring? Nope, nope, and nope. Forget moral judgments, there is a Labor Code Section, Section 96(k), that prohibits employers from taking action against employees for their “lawful, off-duty conduct.” Making this page on OnlyFans is perfectly legal activity.
Yes, it is a brand new world in which we live.
MANAGING ISSUES SURROUNDING WORKERS WITH DEVELOPMENTAL DISABILITIES
Frankly, shame on me for not touching on this issue sooner. This impacts adults like my daughter, who is on the autism spectrum. But this discussion has been triggered by not one but two different client situations in the span of two weeks involving employees who were hired disclosing nothing about any disabilities. However, sometime into their employment, these employees claimed they had some diagnosis that required an accommodation in order for them to perform the essential functions of their job. Secondly, in both client scenarios, the employees also stated that they were the subject of teasing, insensitive remarks or harassment from co-workers/management, who presumably were unaware of their diagnosis.
Here is the context. We have a few different sets of individuals with developmental disabilities in the workforce. Some, like my daughter, have been officially diagnosed at a young age, have been working with the Regional Center or some official agency or job coach, and may even be placed in a workplace with full transparency about their limitations and possible restrictions. In those cases, any accommodations are addressed at the start, and those who need to know about their diagnosis within the workplace are given information in advance. In those cases, employers should be able to head off any sensitivity issues, and I would hold all co-workers and management accountable for any ill-placed remarks.
The next group involves adults who had formal diagnoses but who function well enough that they don’t need to be working through an agency, or at least do not believe they do. Most of the time, they interview without disclosing anything about their diagnosis. This of course is their choice, so long as they truly do not need any accommodations at work. Let’s face it, there are many who walk amongst us with ADD, ADHD, dyslexia, mild depression, OCD, who have had these conditions under control enough to be able to manage their symptomology. There is no reason to ever disclose these diagnoses to anyone, if they are not impacting the ability to perform the job.
There is also the group of workers who have never had the benefit of a formal diagnosis, but suspect they have “something” by going online and reading about their symptoms. I’ll discuss this group last.
The two incidents that arose recently happened with the middle group, as I indicated. In the first circumstance, it had become relatively clear to my client that this young adult had some issues, but he had never told management officially. When he started becoming overwhelmed during busy dinner rushes, he would go missing. Obviously, that is unacceptable for most employees. Out of frustration, his co-workers and managers vented, which to the employee felt hurtful. Once the employer became aware of his diagnosis and his needs, they were able to work up to work up a plan which allowed the employee to communicate when he was feeling overwhelmed and ask for a short break. Even that ability alleviated much of his stress, which reduced the amount of times he actually needed to leave the floor. And of course, the snarky comments were averted once everyone was on board with the plan.
The second scenario involved a sales employee who was getting pushback from co-workers because he was always delinquent with his paperwork. He finally confessed to Human Resources that his inability to timely complete his reports was due to a disability, and he sought an accommodation. My clients were initially skeptical, asking why someone in their mid-40s would not be more forthcoming about having a disability which inhibited them from dealing with writing well (assuming it is dyslexia). I told them that I knew people who were still very self-conscious about such things, in fact, my sense was that younger employees who grew up in school systems with more sophisticated inclusion programs were much more accepting of their own identities.
I hasten to add that the numbers of young adults on the spectrum will be exploding into the workforce over the next few years. When my daughter was diagnosed in 1994, the thinking was that 3 in 10,000 children were on the autism spectrum. Within ten years, that number changed to 1 in 66. Whether that change was due to an increase in incident rate, diagnosis rate, or both, there will be that many more young adults who self-identify as neurodiverse entering the workforce. Sarah is 31. These kids are coming up right behind her. Some will be coming in through Regional Centers, but many will not. They will interview just like the employee who interviewed with my client, and they may just present as a little “quirky” or “sensitive” or “odd.” They may also have some amazing other traits. My daughter is never late and hasn’t missed a day of work since she started. She also remembers everything she has ever learned. But as they say, when you have met one person with autism – you have met one person with autism. They are not all alike.
I will be adding a bit about disability harassment to my harassment power point. It should have always been there.
Now, this gets complicated, because I know there are circumstances when employees are struggling with performance issues and suddenly start talking about a diagnosis they never had before. I have been through these conversations with some of you. Or in other situations, employees ask for unreasonable accommodations, and it is clear they are in jobs that are ill suited to their limitations. We will have to walk through ALL these scenarios VERY carefully. Always remember to call your favorite employment law attorney when these scenarios present, as they are very messy.
Well, I am getting this out before noon for once, and it was a LONG one. See, if I were Sarah, I guarantee it would always be on time. She is better than me in so many ways. Have a good week, all.
#StandWithUkraine