Human Resource Management in the 21st Century

Jean Says:

It provides the HR Professional with a sound foundation and path to follow for preventing and dealing with infractions. In your experience do most companies have detailed policies?

May 23rd, 2007 at 6:26 am

Michael Says:

Great question!

This topic and the tactical intervention (a company’s sexual harassment policy) enable HR professionals to gain insight into organizational behaviors. The “method of handling complaints” serves as a conduit through which stakeholder thinking and action emerge, providing HR professionals with data for strategic and tactical decision-making. Policies of all types can be viewed as data points which inform critical though and action. Human resource professionals can use the policy development, implementation, and interpretation processes as learning opportunities. Learning opportunities to partner with counsel; ask critical questions concerning the genesis of Title VII, the legislative intent for it enactment, and its relationship(s), and the importance of these relationship(s) with constitutional law, torts, and evidence. In addition, counsel can provide guidance concerning refining a company’s sexual harassment policy; providing language that is simple and transparent, and process and procedures that comply with the spirit and mandate of Title VII, as well as related acts.

Thoughts……………

May 23rd, 2007 at 6:50 am

Gary Pyle Says:

If I remember correctly, in this instance ignorance is not necessarily bliss. Just because a company has a policy against sexual harrassment and they have a regular training program, they still remain liable for the actions of their employees. Training and acknowledgment of that training will help in their defense, but this does not remove them of all blame. Correct? So, the best way in my opinion to handle the issue is vigliance. Ensure that the training is provided, but also make the employees feel secure in the open door policy to be able to come to you or any one in management to discuss any uncomfortable situation.

May 23rd, 2007 at 10:55 am

isaac dixon Says:

Both comments are right on the money. The case involving Boca Raton Florida a few years ago shows having a policy without enforcement is no bar against litigation. Policies are just the begining, organization committment to providing a work environment that is free from harassment in all forms begins at the top. This is one of the key reasons that many organizations have moved to Anti Harassment Policies.

These policies do address Sexual Harassment but they also include issues such as workplace bullying and inapproriate conduct that is unwanted and repeated by employees, vendors and others.

May 23rd, 2007 at 12:53 pm

Robert Says:

Some terrific points here. There is no way to stop litigation altogether or provide an airtight defense to all situations. Vigilance is key. There is also no substitute for valuing people. Believe it or not, many a case results in litigation due to “feeling wronged” rather than money. What do you think is the value of an apology? Check out http://www.flastergreenberg.com/articles/03_11.cfm “Schwarznegger’s Lesson for Lawyers”.

May 24th, 2007 at 5:00 am

Michael Says:

Hello Gary and Issac,

Welcome and thank you for participating in our expanding HRM Blog.

Employer anticipation, action, and vigilance concerning sexual harassment and hostile work environment in the workplace are mission critical variables to 21st century organizations marketplace success. Enabling a workplace free of harassment is a key responsibility of leadership at all organizational levels.

For HR leaders, formal legal training is must!

Typically, HR processionals possess a general, often vague understanding, of legal action in the workplace associated which is aligned with “black letter” law (e.g. XIV Amendment “Due Process” and IV Amendment “Search and Seizure,” however, are these professionals are rarely informed concerning the philosophic and ethical principles which constitute the genesis of and remain guiding and influential forces relative to the evolutionary nature of the law.

Formal legal training requires attending law school or at minimum, topic specific, in-depth, legal theory and practice classes. Legal training in Constitutional Law, Torts, and Alternative Dispute Resolution (ADR) can expand HR professionals’ ability to interact more effectively with counsel; enabling more precise communications, informed decision making, and workplace action; in turn reducing dependence on counsel, as well as retainer fees.

The majority of law-oriented, professional education programs marketed to HR professionals’ are little more than legal pabulum. One and two day courses that introduce simplified versions of legal theory; providing checklist approaches to workplace employment action and ending with the caveat “always contact counsel before acting.”
This approach to understanding and integrating legal principles into HR practice relegates HR professionals to intellectual poverty, as well as actionable disadvantage. Here are several considerations for developing a new approach to HR and the law:

1. Partnership with Counsel - Counsel can be effect legal coaches. Ask for foundation definitions of legal terms and concepts, how they apply in the workplace, and what the strategic and tactical consequences of action. Ask for resources (e.g. cases, holdings, and case dictum that highlight key legal principles and courts’ rationales for rulings).
2. Law School - Contact local law schools and inquire if they have business or employment law courses available for non-law student. If you are enrolled in a University that has a law school, inquire concerning taking law courses in the law school as electives.
3. Read the Law - The law, like other specialized disciplines, has its own theory, language, and literature. Accessing legal theory and practice can prove challenging without understanding terminology, legal principles, and working through case law. Frequently, HR professionals deprive themselves of integrating legal principles with HR practices as a result of their ignorance of the law. Reading, in turn understanding the law, can provide opportunity for self education and integrative insight; in turn, advancing the effectiveness, efficiently, and credibility of HR professionals and the profession.

Given the topics of HR professional development and the future of HR, I will upload in a separate posting the overview of the book I am currently writing entitled Human Resource Professionals in the 21st Century Knowledge Age: Partner or Pariah©.

Thoughts…………….

May 24th, 2007 at 8:39 am

Jean Says:

In response to Gary and Issac:
What is the expectation of management in accountability for actively modeling and holding accountable for implementation of policies. Why should sexual harrassment be any different than other policy?
If a manager sees an employee stealing or mismanaging we coach them, discipline them and sometimes terminate them. Why look the other way in cases of sexual harrassment, perhaps what we need is self-confidence in what is right and wrong and how to stand up for it?

May 29th, 2007 at 7:50 am

Angela Kegler Says:

Robert, I realize the legal (and ethical) basis for examining a sexual harassment case is from the perspective of a “reasonable person.”

I perform corporate training and often work with organizations to develop programs in an effort to prevent sexual harassment. Many times, I am working with organizations that are suffering the aftermath of some form of harassment problem. I am frequently presented with the question: What determines a reasonable person? As silly as the question sounds, I find myself in a conundrum when presented with the question. It seems so obvious to me, but it is not always that simple to answer.

Is there guidance on what constitutes a reasonable person? Thanks for your feedback.

May 30th, 2007 at 8:13 pm

Michael Says:

Angela,

Thank you for your post.

Yours is a great question.

The “reasonable person standard” does seem so “reasonable” to many people as their benchmark for reasonability is their perception of and attribution to situations. One perspective is the law, as established through case law and legislation, provides the workplace with standards that are interpretable per case. To ask what’s “reasonable,” using this perspective requires individual perceptions and attributions associated with a situation to be minimized in order to case holdings and mandates of legislation to be applied. In many workplace environments, case law and legislation are not primary drivers for HRM strategy formulation, decision-making, and policy implementation.

To my May 24th posting to Robert’s question, “Formal legal training requires attending law school or at minimum, topic specific, in-depth, legal theory and practice classes. Legal training in Constitutional Law, Torts, and Alternative Dispute Resolution (ADR) can expand HR professionals’ ability to interact more effectively with counsel; enabling more precise communications, informed decision making, and workplace action; in turn reducing dependence on counsel, as well as retainer fees.”

To your question, “what constitutes a reasonable person?” In the field of HRM, responses to this question must be influenced by a clear understanding of associated legal theory and practical experience applying relevant case law holdings and legislation.

Robert, what are your thoughts……………?

May 31st, 2007 at 8:57 am

Robert Says:

Two terrific posts Michael and Angela. The “reasonable person” standard is a legal attempt to create an objective test. The point is to provide guidance rather than have the law be personality specific. It is most often applied in tort law and criminal law. What the Courts are trying to do is not take into account how a particularly sensitive person (in the sexual harassment context) might feel but how the rational, intelligent and average person might be affected or act in similar circumstances. It is a device to aid the trier of fact to evaluate situations. It is more of a guide for Courts than HR professionals. It is significant to note that some Courts have applied a “reasonable woman” standard.

These concepts can be difficult to grasp and one gets more of a “feeling” for identifying problems through the reading of cases and fact patterns. The benefit of having a strong anti-harassment policy and procedure for handling complaints is that it can eliminate the need to engage in too much legal reasoning. The training you provide sensitizes people to the issues and is incredibly valuable. It may be obvious to you but not to others. If a person needs to conduct a legal analysis of “reasonableness” before pursuing a course of conduct, there is a very good chance that he or she should abandon this conduct.

The HR professional, in my opinion, should become more familiar and comfortable identifying potentially litigious or simply “wrong” (a subjective term (:) situations. Michael Williams who heads this blog has instituted courses at Capella where learners study statutory and case law and are then presented with a fact pattern to argue in a conference call on one side or the other from an attorney’s perspective. The value of this is that the learner starts to understand the paradigm of the lawyer, learns how law may be applied and argued in “real life” situations and undergoes (hopefully) a shift in thinking that enables an ability to identify issues and promotes the facility for effectively communicating with counsel.

June 1st, 2007 at 10:13 am