Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation about workplace harassment and training.
Our guest is Andew Adams, the practice leader in DarrowEverett’s Labor and Employment Practice Group. He regularly advises clients ranging from small businesses to large multinational corporations regarding compliance with state and federal regulations and human resources matters, including personnel policies, day-to-day employment issues and internal investigations.
He frequently trains companies on best practices to spot harassment, how employers can avoid it, and how supervisors are the first line of defense against it. We will dive into Andrew’s time training to become a Navy SEAL and his time crafting employment policies with the sheriff’s department, both of which have greatly influenced his legal career. The supplemental materials and episode transcript are available below.
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On Pay Discrimination: a live discussion with Jessica Stender, Policy Director at Equal Rights Advocates, a national civic rights organization. Please join us.
When: Wednesday, September 27, 2023, 3pm - 4pm ET
Where: Zoom link to be provided
Topics: We will discuss pay discrimination + careers in civil rights with Jessica and take questions from the AccelPro Employment Law community
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Andrew Adam’s DarrowEverett profile.
Adams, Andrew. (2023, February 9). Going by the Handbook Can be Employer’s Best Defense. Darrow Everett LLP.
I. THE VARIABLE NATURE OF HARASSMENT
Matt Crossman, Host: Let’s start off by defining exactly what harassment in the workplace is.
Andrew Adams: It’s variable. When you look at harassment in the workplace, it can range from anything from comments to gestures to things that an everyday person would see as harassment.
But it also includes things that aren’t of that nature. It can be jokes that just almost cross that line or postings or pictures that somebody might have in their office cubicle. We’ve also had employees complain about things like inappropriate literature in the workplace.
So it’s really variable depending on the eye of the beholder. We look at what offends the person and how to address that.
MC: What are some of the causes of workplace harassment and how can companies adopt policies to avoid them?
AA: Most cases stem from management styles, at least what you see when you go to an administrative agency or a court where somebody’s actually litigating or bringing a complaint. And it’s generally a management style that’s outside the bounds of what somebody’s used to. So they’re a little bit more strict than they are with other individuals, or it might be something that somebody’s not used to in the workplace.
We see a lot of interactions that are a result of personalities that just don’t mix. And sometimes people will think that that’s because of a characteristic that they exhibit or a misunderstanding between cultures, and that can lead to harassment incidents as well. And that’s excluding the smaller percentage of incidents where you have some outright harassment in the workplace.
II. TRAINING AS THE FIRST LINE OF DEFENSE
MC: You train employers on these issues, and in that training you call supervisors the “first line of defense.” What do you mean by that?
AA: So when you look at a company’s management model, you always look for supervisors to protect your company as much as you can. And supervisors act as your first line of defense in reducing liability for a company.
You’re never going to be able to eliminate all the liability. But if your supervisors are properly trained on how to address and identify instances that could constitute harassment, and they communicate freely and openly with HR about those issues, that’s where you’re going to see the most reduction in your liability. Supervisor training is so essential to recognizing what an executive or a higher management level individual is not going to see on a day-to-day basis.
MC: What are some common problems those first line of defense supervisors face when they see harassment in the workplace and how can employers avoid them?
AA: So it’s understanding the dynamics of your individual workplace. What’s harassment or deemed harassing behavior in one workplace might not constitute harassment or discriminatory behavior in another workplace.
And so that supervisor is your first line of defense. He’s the one, or she’s the one, or they’re the one that’s on the ground level assessing those situations and working with those employees on a day-to-day basis. So you lean on them to really recognize what’s going on in determining the level of joking or banter in the office and what’s going to constitute discrimination there.
You’re really looking at them to be that judgment level first line, really perceiving what’s going to be considered discriminatory by their employees, and identifying and pulling that out and notifying you of that so you can take actions to prevent that from occurring in the future or reduce your liability in the front end as well.
MC: What are some common mistakes that employers and supervisors make that lead to litigation?
AA: Some common mistakes are trying to address things informally, not documenting incidents when they first occur, and not setting ground rule policies. So you see a lot of conflicts in the office, which can be resolved informally with communication between employees and setting appropriate boundaries and things of that nature.
But sometimes when a supervisor gets involved, they want to lean toward keeping this an informal process and not documenting it. You also see a lot of fear of entry-level supervisors or first-time supervisors disciplining people that used to be their peers. You see a lot of missteps there.
They’re afraid to discipline on things that might be a lower-level version of a violation, but could lead to something greater, or just the tip of the iceberg when it comes to something that’s actually occurring. And so getting over that initial fear of a supervisor of disciplining people that used to be their peers is a big issue.
The other one is not properly documenting things that need to be documented. When things end up in front of the EEOC, the courts or in a formal grievance process, we’re going to look towards the documentation. And the biggest thing that assists me when I’m dealing with these matters is employers that document everything. It’s helpful if someone says, “I have initial disciplinary notices”—even if it’s an informal meeting—“these are my supervisor’s notes from this meeting that I took, this is what the individual said”—and things of that nature.
MC: It sounds like proper training, while not a 100 percent solution, could help companies avoid a lot of problems.
AA: It’s really true, almost more than in any other field of law. Train supervisors, train companies, train employees, whether that’s an informal training with staff or these really formalized, multi-day training events, on what to really understand.
It’s so difficult for anybody coming in without proper training or without in-depth knowledge to really understand the dynamics of what the law covers and how it ranges from state to state and the differences that you can see depending on where you are.
MC: Harassment has been in the headlines for decades upon decades. Is there a way to fix this?
AA: So there’s never going to be a way to fix it all. There is a way to reduce liability and to address it. And the biggest step forward we’ve seen over the last 10 years or so has been putting it in the spotlight and really focusing on addressing it.
There’s been companies that have always done that, but there’s been companies that don’t understand what they can do to prevent these incidents. Or now they’re drawing attention to it and saying, “OK, this could be a serious issue. And now I think we really need to get a formal process in place to address it.”
So it has been brought to the frontline, which is great. And as long as we keep it in focus, I think that’s the best we can do in reducing these incidents that occur and getting policies in place that really address these from Day One.
MC: What challenges do regulators, employers and attorneys face when they’re investigating harassment allegations?
AA: The regulators have it down a little bit in their process. But when employers and attorneys are getting involved in it, at least from the perspective of somebody outside of employment law, they don’t really understand the full dynamics of the practice. I didn’t either.
The interns and law clerks that come in from law school don’t understand the dynamics of the practice either. And that’s just because it’s so multi-leveled. With employment and discrimination, it’s a two-step process. So you have an administrative level which can lead to administrative litigation, whether that’s before the Department of Labor or before a Fair Employment Practices Agency, which can go all the way to an administrative law judge.
Then you have kind of this smaller practice within that, and at any point in time in a lot of agencies, those matters can get pulled out and filed in the courts. So you have this dual practice where you have an administrative litigation practice, and then you have a federal or state civil litigation practice.
So it’s multifaceted, and understanding the dynamics and the interaction between the two is essential to understanding your role in employment law. It’s just so dynamic, the practice and how variable the law can be from state to state depending on the regulations. That’s one of the most exciting things about the practice of employment law.
MC: What challenges has that presented for you in learning this, and what advice do you have for attorneys who are seeing this as a space they might want to work on?
AA: I think the biggest challenge is first understanding the administrative process. You get a lot of background in law school coming up as an attorney about the litigation process in the courts, whether that be state and federal court, but you don’t have too many individuals that practice within that administrative realm.
And so understanding the administrative practice and how each agency works is kind of your first hurdle. And then extrapolating that and saying, OK, now we have this large multinational corporation, they’re all over the United States. We have offices across the states, but also we need to look for local counsel if we’re in a new state.
And then being ready to relearn the law wherever you go, so if your client wants you to pro hac into that case, just so that you’re there, you’re their eyes, their ears, and you’re leading that case. Now you’ve gone from being in Boston to being out in Missouri or Florida or wherever and learning what laws apply there, and their rules and procedures. Basically from the ground up, you become a new attorney in that state overnight.
So you’re getting up to speed, and I think it’s one of the most dynamic pieces of this practice is being able to come in there and want to learn new aspects of how to practice in a different state and the dynamics and how the procedural rules work there. And so you have to always be ready to learn something new almost every day.
MC: That sounds fascinating, challenging, and frankly a little intimidating.
AA: It’s a little of each, especially when you’re first getting started. It can be very intimidating, especially going to a new state, meeting a new law firm that you’re going to use for local counsel, getting to know them and then building a reputation with them, where they respect you and you respect them. You build that level of trust between the two of you through your practice. It can be intimidating, especially for a younger attorney getting out there for the first time.
III. ON WORKPLACE CULTURE, CONTEXT AND DATING
MC: I’m going to hint at a military question here and then we’ll dive in more on that in just a minute. I imagine while you were in the military, you saw some behavior that in the real world would constitute harassment. I worked in construction for a while and I certainly behaved differently there than I do in newsrooms. Does the law care about workplace culture and context?
AA: It does, and it doesn’t. Lawyers always defer to that 50-50 answer. It depends. Here it’s relevant because the context evolves.
So 10 years ago, the answer to that question was a little bit different than it is now. And so there’s a variance of a little bit where you used to have that kind of shop talk exclusion to what people could talk about.
What’s talked about in the shop is different than what’s talked about in the C-suite is different than what's talked about on the sales floor. It’s kind of a variable, and it looks at the dynamics of the workplace and workplace culture and things like that.
Things that are going to be outright discriminatory are always going to be considered outright discriminatory. But the level of joking in the office and the nature of communication and whether or not that pushes some boundaries is going to be a judgment call. In a lot of situations it’s going to be right on the line there, and it’s tough to decide. And that’s why a lot of these cases get filed with an administrative body and it takes a long time to sort out.
Sometimes it’s just hurt feelings over other things. But that line is completely variable and changes with society, I think.
MC: So a company calls you and is asking for your advice on exactly this issue. What do you tell them?
AA: So the first thing I ask is to get as much background information as they possibly have.
We get the background of the company, we get the background of these individuals. It’s going to be a list of questions. What’s the background here? How long have they worked there? How long have they worked together? Are there any kind of social relationships that I need to know about between the two? What documented history do you have with these communications between these two individuals?
And then it really comes down to the context of the communication. If it was just a communication that’s so outright discriminatory then we’re going to have to take a different route entirely. But if it’s something that’s borderline, we look at pretty much all the dynamics of what was going on there.
Was it because one of them got passed over for a promotion at this point in time? Was it that someone got disciplined or didn’t get a good review? Was someone placed on a performance improvement plan? There’s so many factors that come into play.
A big piece of our practice as employment law lawyers is communicating with our clients, especially with human resources and with supervisors and management and really eliciting the responses to those questions. It’s a lot of asking small questions, then eliciting long responses. It’s kind of like we’re doing here — 70% of what we do is opening that line of communication and eliciting responses from our clients about what’s really going on.
MC: You mentioned a subject I wanted to ask about anyway, and that’s social relationships. I dated and eventually married a coworker. Twenty-five years later, it all worked out fine. We’re happily married, but that’s a landmine for potential harassment. If we break up, if it doesn’t go well, whatever. What advice do you have for employers regarding employee romances? Is that something they should keep an eye on? Ban? What’s the solution there?
AA: A lot of employers go one of two ways. They either go way too hard on this topic or they don’t address it at all. And there’s some kind of even medium there, which works out best but that a lot of people are afraid to get to.
You want to address it. You don’t want to ever just gloss over it. So the best practice would be to have a policy in place that outlines what your expectations are of your employees from day one. Because if anything ever comes up, when you bring it up to the employee, they’re going to say, “well, I signed your handbook. I look at your policies. There was nothing about this in there. So why are you coming to me now?”
So moving from there, you want to have a baseline policy. You never want to just completely 100 percent say no workplace relationships, absolutely none, zero tolerance whatsoever, because people are just going to lie to you. No one’s going to feel like they can come to you and talk to you about anything, and it’s going to go all underground.
On the opposite end of it. you don’t want to have a policy that’s so regulated that you say, “Every workplace relationship, come to me in HR, sign these forms saying I asked so and so out, et cetera.” So you want to have somewhere in between where employees are comfortable coming to you and talking to you about things, but you’re also not over-regulating it.
And the one point that we have to really stand firm on is supervisory relationships, where you have a direct report that’s now identified in a relationship with the supervisor. That’s the one piece where you want to say, “OK, we need a 100 percent disclosure on this because there’s steps that you have to take to insulate from liability at that point.”
And those can include separating those individuals, maybe relocation to another work site of one of the two. Or at the end of the day, if it’s such a small company where those aren’t feasible options, one of them may have to leave the company just because there’s so much risk of liability there.
And then there’s the concern on the side of the employer: do we always side with a supervisor and move the subordinate or are we favoring one sex over the other? One gender identity? You have to be very careful about how you approach some of those relationships.
IV. FROM SAILOR TO CORRECTIONAL OFFICER TO LAWYER
MC: So let’s move on to your military training. You trained with the Navy SEALS. What did you learn in training with them that you can apply to your legal career?
AA: I trained with them for a while. I got hurt at first phase, so I didn’t make it too far through. I was there for a little over a year, so I always like to set that straight. I don’t want to ever misrepresent anything about my history.
But in that time, they teach you determination, dedication, hard work, perseverance, and especially time management and planning things out. So there’s a huge focus on everything that they do with planning and scheduling and the timing of everything. When you’re in training there, they have various evolutions, and everything is planned on minute-by-minute timetables. And so you learn to pretty much segment your life out like that and say, “this is exactly the schedule I have to abide by.”
And with the practice of the law and in law school, you have to kind of segment out your life like that. You have to learn to manage your time, especially when you’re working as a litigator in these employment law contexts and really get that time management skill down. And I think that’s one of the biggest hurdles, especially with newer attorneys, newer law students, is time-management and focusing on priorities and things that are coming due.
So I think that’s one of the big things you learned that sets you up very well for a structured environment that you get in the law, too.
MC: Tell me about the injury and how you dealt with it.
AA: Sure. So when I was out in training out there in Coronado, I ended up with repeated stress factors to my ribs.
I ended up breaking them off at some point and doing a little bit of damage inside there, and they had one of the best ways I’ve ever had an employer deal with anything that I’ve ever experienced. They were very good to me out there. They took care of me the entire time, made sure that I was set up to come home to a job.
It was in the 2011, 2012 period, so there were some difficulties in the employment realm. From an employer standpoint, looking back on it, they did a very good job in making my transition the easiest they possibly could. And so my background from there led me into the sheriff’s department, which led me into a little bit of policy and policy review, especially with some new laws that had come out around that time.
MC: What exactly did you do at the sheriff’s department that got you interested in employment law?
AA: I started out as a correctional officer there working the midnight shift. And then I had some free time there, so I got in touch with the policy department and they were overjoyed that somebody was interested in looking at policy and procedure there. Being a little bit of a nerd at that time, going through and reviewing it and helping revise their policies, I did that with my supervisor at the time and my supervisor over in the standards department.
And as time went on, they asked me to do more and more. So we got involved in state and federal auditing around regulations and laws pertaining to jails and houses of correction, and that’s kind of what got me up and running in the policy department and got us in touch with working with legal and working with HR on policy implication, things like employee handbooks as well.
V. THE POWER OF BEING HUMAN TO EACH OTHER
MC: You mentioned how well the Navy treated you when you got hurt. How has that influenced how you advise companies?
AA: It influenced me a lot because from then on I learned how an employer could be human to an employee. You see a lot of people say in a giant corporation there’s no human contact and things like that, but there’s a balance that can be struck with just being a human to each other and being sociable and allowing people to communicate and assisting them with what they need.
And we’ve seen that come through on a practical standpoint with a lot of employee terminations and things of that nature. It’s going to be a rough termination when you have to terminate an employee and you say, OK, sometimes people just want to be heard. Sometimes sitting down with that employee and talking to them for 15, 20, 30 minutes and just letting them vent about something that they feel they want to talk about and get off their chest while that termination is occurring can be the difference between a future lawsuit and somebody moving on amicably.
So they teach you just the process of human interaction and guiding someone through that process and being there and assisting someone in a way that they need at that time. It’s one of the worst times in someone’s life. It can be at the end of a career, at the end of something they put a lot of time into and a lot of effort into, and you’re the person that has to deliver that news.
Give them some of your time and communicate with them and let them communicate with you and be there to listen and let them vent and talk about how they feel. And sometimes that’s all that’s needed. Legal doesn’t need to be there to do it. Sometimes it’s just that supervisor that just needs to let them communicate and let them be able to tell you how they feel.
MC: I love what you said there about being a human to each other. Is it possible to train someone to just be nice in the employment law context?
AA: A wonderful thing about a lot of people that come into the employment law realm, and a lot of people that come into the human resources realm especially, they already have a lot of that skill set in place, and it’s just the company has to enable them to be able to do that.
Large-scale layoffs have to happen. But if there’s the ability to say, “OK, we know you have a lot on your plate, but we’re going to carve out some time for you today to meet with these five individuals who we have to let go. We’re going to give you enough time to do that.” And so it comes from a balance of management enabling them to be nice in order to have those conversations.
MC: Imagine I waved my magic wand and took you back to high school graduation. You can start over from there. What would you do differently?
AA: I wouldn’t do too much differently. Maybe in my undergrad I would’ve gone for something that would’ve prepared me a little bit more for my legal career, something in the field of pre-law or English.
For context, I was a marine biology undergrad, which I had a great time and I love that experience. The culmination of all my experiences led me to where I am today, and I wouldn’t give that back for anything.
MC: Two-part question. Extremely hard-hitting. How many times have people made the marine biologist joke from Seinfeld to you? That’s part number one and part number two: Is there any connection between what you learned in marine biology and employment law?
AA: So the first part, yes, I’ve heard it plenty of times. It’s actually my Instagram handle at this point—“I am a marine biologist.” It’s always a great conversation starter with new clients who ask, “marine biology, how’d you get to where you are now?”
And then they get into the military and it’s just a winding path. You can always take a piece of something that you’ve experienced and apply it to the practice of employment law from what I’ve seen and what I’ve experienced.
MC: One final question. What advice do you have for young attorneys trying to find their way in this profession?
AA: It’s meeting people and getting out there. And really getting to know people within your community of practice and having relationships where you can learn aspects of what you practice and what you need to know that you didn’t think of before.
Because when you dive into something, if you go out as a solo practitioner, it’s learning your practice and the things that you don’t know, the questions you don’t know to ask, that are the hardest to understand at the end of the day. And the best question I have always had is “what question didn’t I ask that I need to know the answer to?” And I think that’s the biggest hurdle, overcoming the inability to ask questions like that.
This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on March 10, 2023.
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