The Basics of Discrimination and Harassment From an HR Perspective
In my day job, I’ve been managing people for over 15 years now, so I’ve taken multiple management training courses at Fortune 500 companies. There are some basics that should be known before letting someone be responsible for someone else and their job, since one’s manager is one of the biggest factors in determining job satisfaction, but it seems that a number of comic companies are falling down on the basics of this and other human resources-related issues. That’s why I think it’s important to be aware of the topics guest writer Casey Gilly covers below. It’s a long piece, but it covers the basics that will lead to better workplaces, and I appreciate her sharing this knowledge.
This week, Alex de Campi wrote an excellent piece about known harassers working at comics publishers. For many of us, this wasn’t news — we know there are people working in this industry that don’t treat others the way they should. Not only is this behavior infrequently spoken of, but apparently it’s tolerated at a corporate level.
Well. I have a lot of feelings about this — not just because people are being poorly treated, but because I’ve worked as a Human Resources professional for over ten years. For the past five years, I have been solely focused on Employee Relations, which is a discipline of HR specifically dedicated to investigations. My day-to-day job is receiving concerns from employees and managing the discovery process, including and up to making recommendations about what steps management should take, depending on what information I’ve validated.
With that experience, I can tell you — something isn’t adding up with these reports. A senior editor with multiple incidents of sexual harassment on file? How is that allowed? Did they consult with HR? Because if they did, they would know that the law mandates anyone guilty of harassment is subject to immediate remedial action — which maybe was taken, I don’t know. But the fact that he’s still there and there have been repeat incidents? Jesus, what a liability. No one is that good of an editor to risk keeping on staff.
I don’t work for any of the companies mentioned, and I wasn’t involved in those investigations, but the fact that known harassers are still in positions of power? That is inconsistent with how I’ve seen similarly situated individuals treated. It sounds like people’s rights are being violated, and they are being subjected to working conditions outside of what is reasonable and legal. And that pisses me off.
Not only do I work in HR, but I also work in comics as a journalist. I see the culture built around accepting harassment in all forms. We are supposed to chalk it up as part of the experience. We are told that harassment is actually a compliment. Our stories are dismissed, our experiences are laughed at, and we are faced with the choice to either tolerate this behavior or leave. Well, when I see my two careers intersecting like this, I can’t stay quiet. Like Alex, I need to speak out about what people can do to protect themselves. And at a corporate level, that begins with HR.
Now, not all HR is created equal and some employers care more about their HR teams than others. Are there companies where HR’s value is questioned and they aren’t given adequate resources or a voice? Definitely. Are there HR people poorly suited for their jobs who don’t understand how to influence, advocate, and protect the company? For sure. This job is hard, and it’s emotionally intense. There are days where I’ve ended a four-hour-long investigative phone call, closed my office door, and screamed into my jacket until I was hoarse. But my job isn’t any more difficult than anyone else’s, and at the end of the day, I am responsible for making sure my company has made informed decisions.
You see, I care deeply about my profession. I consider it a privilege to be a person people can go to when they’ve experienced mistreatment, or seen something questionable, or are just flat out having a bad day and need a safe place to vent. I enjoy helping people come to solutions and feel rewarded when someone leaves a conversation with me feeling empowered. In my role, I walk the line between what a company’s culture dictates we do, what policies and procedures say, and what the law requires. It’s a balancing act to make sure that decisions are fair, consistent, and unbiased. While my recommendations may not always be followed, I can at least make sure there was a voice of fairness.
This doesn’t mean the complaining employee is always right — in fact, in many cases, findings are usually a combination of poor communication and differing perceptions. But in the cases where poor behavior is validated? You’d better believe action is taken. And not just because I think it’s important, but because the law says it’s required.
Let’s talk a little more about the law — you know, that thing all employers are required to follow. I see these terms get used in a wildly inaccurate fashion all the time, and I do my best to educate on the legal interpretation without undermining someone’s experience — but for the sake of this discussion, let me lay it out. This is how the law (specifically the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disability Act of 1990, the Pregnancy Discrimination Act, the Equal Pay Act of 1963, the Civil Rights Act of 1991, the Genetic Information Nondiscrimination Act of 2008, etc.) defines these terms.
Discrimination based on race, color, religion, sex, pregnancy, national origin, age (40+), genetic information, or disability is absolutely prohibited by laws enforced by the Equal Employment Opportunity Commission. Basically, it means you can’t treat employees under these protected classes any differently than you would anyone else. It doesn’t mean that because you’re a 41-year-old man and you didn’t get a promotion that it’s automatically discrimination — you could be a terrible employee. But your employer would have to prove why they made that decision, if questioned.
Harassment is unwelcome conduct motivated by race, color, religion, sex, pregnancy, national origin, age (40+), genetic information, or disability. This is a type of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination Act of 1967, and the Americans with Disability Act of 1990.
It’s considered actual harassment when tolerating such behavior is a condition of continued employment. For example: your boss refers to you as Preggers McOldy, in reference to you having a baby at age 41. He refuses to call you anything else. When you ask him to stop, he says, “As long as you work for me, your name is Preggers McOldy.”
Now that’s a dramatic example, but you see what I mean. When your choices are to tolerate the behavior or resign, that’s when it’s harassment.
The other form is pervasive, severe behavior that a reasonable person would consider intimidating, hostile, or abusive. Now, it’s not illegal to be an asshole, so your boss can be snippy with you, but if it continually crosses lines that target protected classes? That’s when it’s harassment.
For example: your boss shouts racist names at people when she’s angry. She’s angry, like, all the time. When you ask her to stop, she apologizes but never changes her behavior. Totally harassment!
Another example: your boss tells you to get your fucking work done by the end of the day. Rude for sure and maaaaybe vaguely threatening, but it’s not based on your race, age, orientation, etc. Your boss is just kind of a dick. So probably not harassment. In order for it to qualify as the legal definition, it must create an environment that most people would say is hostile and offensive. It’s pretty hard to prove.
Harassment also includes jokes, ridicule, mockery, offensive objects, or pictures that interfere with work performance. (Note here: if you work on a comic laden with breasts and wieners and sex, that’s not harassment. You aren’t being unwillingly exposed to it. But if you’re uncomfortable, it’s a good idea to talk that out and see if there’s another project you can work on. But also, like… it’s comics. A reasonable person in comics knows there’s going to be mature content and understands that it’s part of the product. However, if someone puts up a Graphic Sex Positions of the Month calendar and demands that you look at it, totally a different story. Same with unsolicited dick pics, unless you work as an unsolicited dick pic rater, in which case, omg your job must be super weird. Call me. I need to know.)
So, what do you do if you’ve actually faced discrimination and harassment at work?
You tell your manager and Human Resources, and you tell them immediately. Why? Because Federal and state harassment/discrimination laws impose a legal obligation for employers to investigate all complaints. Employers don’t get to pick and choose which concerns to look into. It doesn’t matter if you’ve complained multiple times — they are LEGALLY REQUIRED TO INVESTIGATE. Not only that, but they are required to have a non-biased, qualified person conduct the investigation. If an employer fails to investigate, thoroughly document said investigation, or reached a WTF conclusion, guess what? That can be cause for legal action. Not only will it make the employer look like a douchebag, but it can elevate what could’ve been a simple fix (or an insubstantial initial claim) to a whole new level of “you done fucked up.”
Aside from it being a legal matter, a good employer doesn’t want to ignore inappropriate behavior in their workplace. They want to maintain employee morale and foster positive contributions. They want to limit their liability for claims and legal action, too, but mostly they don’t want to be heartless assholes that permit chronic abusers to run free and wild, like sexually harassing ponies on the plains of discrimination. I truly believe that most employers want to be considerate of both sides — these are sad, confusing situations, and it can be super challenging to simplify what’s going on. I’ve been there personally. It’s not easy, but it’s necessary.
If your employer has investigated the harassment, the complaints are legit, and still nothing is done, then I would strongly advise you to speak to a senior member of management and Human Resources. If you aren’t satisfied by their response, you can contact the EEOC, the Department of Labor, or your state-specific employment rights commission. They can guide you on filing a claim that prompts an external investigation. I know how overwhelming that sounds, and I’m sure some of you just got a little scared thinking about going down that path. But hear me out.
It’s okay to be scared. You’ve probably experienced something pretty traumatizing. You’ve seen things you don’t want to talk about. You have worked your butt off to land a job in this industry. You’ve sacrificed, you’ve taken less pay than you’re likely worth, and you may have realigned your entire life to accommodate this amazing career opportunity. You don’t want to mess that up by stirring the pot. You’ve seen how small the industry is, you know how people talk, and you don’t want to make it on to that nebulous blacklist you’ve heard of. You don’t want to be lumped in with “the complainers”. You just want to make awesome comics — and that desire means you’ll put up with treatment you don’t deserve.
But you are worth more than that. You have the right to work at a company where you don’t have to choose between being treated well and having a job. You have the right to pursue your career aspirations without tolerating sexist, discriminating, violating behavior. You have the right to be heard, and for your experiences to trigger your employer to take action. You have the right to not be retaliated against for providing good-faith feedback. You have the right to go to work and not worry about being sexually harassed. Like… a legal right.
Here’s what: things aren’t going to change until people take action. Employees that experience harassment, discrimination, and unfair treatment need to report it. Your employer has to be made aware and have a reasonable opportunity to investigate and respond to those allegations. If you don’t make them aware, they can claim ignorance of the situation. And in some cases, higher-ups may genuinely not be aware of issues.
What can you do as an employee?
• Make yourself aware of your employer’s policies, specifically their Open Door Policy, Harassment Prevention Policy, Anti-Retaliation Policy, and Whistleblower Policy. These might have slightly different names, but the general ideas should be recognizable. These are typically found in an employee handbook or on the employee intranet. You likely received a copy on your first day. Knowing these policies will give you the steps your employer wants you to take if they aren’t being followed.
• If you’ve experienced questionable treatment, document it. Write yourself an email. Take a few minutes and jot it down. If someone else witnessed it, ask them to write a statement. I know it might feel like you’re That One Paranoid Worker with a file on everyone, but do your future self a favor — if something bad happens, capture it on paper. Your manager and HR people will probably appreciate it when you partner with them.
• Be prepared to talk to your manager about it — remember, they need to be made aware, and you are accountable for letting people know when something is amiss. That conversation is probably going to be uncomfortable, and I challenge you to embrace that discomfort. It doesn’t feel good, but it can be productive and lead to something better. It can be as simple as, “Hey, Manager, I saw something that I don’t understand and I’d like to get your thoughts on it” or “Manager, I have a concern I’d like to bring to your attention.”
• Follow up in writing. That can be as simple as sending an email that says, “Hey, Manager, today we discussed my concerns about X. You suggested that I do A, B, and C, which I will do immediately. You also said you would do E and F. I wanted to make sure I captured everything, so please let me know if I left anything out. Thanks so much for talking with me, I really appreciate it.”
• Look at your own behavior, too. Are you being reasonable? Are you taking ownership for communicating your needs and boundaries in a clear way? Have you assumed positive intentions and considered that the person upsetting you may not realize what they’re doing? Think about how you would want to be treated if the roles were reversed. You’d probably want to be made aware and given a chance to change your behavior.
• If your manager is the person in question, speak to THEIR manager or to HR. Document those conversations. Don’t be a jerk about it and make sure you keep your facts straight.
• Don’t be afraid to pursue what you are legally entitled to: a workplace free from discrimination and harassment.
And what can you do as an employer?
• Hire smart, dedicated HR professionals who understand your organization’s goals and want to help you get there the right way. HR does a lot more than schedule holiday parties and pass out candy, and getting a high-quality pro on your team is going to be like a jet pack for your company.
• Listen to your people. If someone is making others uncomfortable, ask yourself — is their contribution worth more than the safety, sanity and happiness of multiple individuals? Is it worth compromising your reputation? Is it worth a potential lawsuit? Probably not, tbh.
• Invest in your people. Train them on communication techniques, encourage transparent dialogue, help them problem solve. Get ahead of potentially volatile situations by empowering your workforce to face into issues at the onset.
• Don’t be afraid to ask questions. Ask LOTS of questions. Cultivate curiosity and examine why you’re making various decisions.
• Do encourage your employees to bring forth concerns. Foster an open, honest environment of mutual trust. Reward people for making good choices and make your stance on bad behavior well known.
• If you’ve made choices you’re not proud of, like continuing to employ a verified harasser, it isn’t too late to take action. Have a talk with your team and decide if this a precedent you want to keep setting. Comics readership is now 53% female — we are the majority. Do you want to retain people that don’t value your primary customer? I don’t think you do.
•Give yourself a high-five if you’re already doing these things. It’s not easy out there.
Department of Fair Employment and Housing (California only): http://www.dfeh.ca.gov/
Department of Labor: http://www.dol.gov/