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HR Handled Right

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Between 2007 and 2012, the number of complaints filed with the EEOC increased by more than 50%, with the second most common disability claim under the ADA involving a psychiatric illness. In fact, mental impairments account for 11.7% of the ADA claims and include depression, anxiety, post-traumatic stress disorder and bipolar disorder.

Anxiety disorders, in particular, are exceedingly common. Although most people who develop an anxiety disorder feel alone, frightened and – all too often – “crazy,” the reality is that anxiety disorders are the most commonly experienced mental illness. Forty million people in the United States – 18% of the adult population – experience an anxiety disorder at some point in their lives.

Symptoms can range from a chronic sense of worry and tension to unwanted and intrusive obsessions and compulsions to spontaneous bursts of severe anxiety with accompanying physical sensations such as a racing heart or shortness of breath. Some sufferers can pinpoint the source of their anxiety; for others, it remains a mystery.

Bringing Anxiety to Work

One of the most frustrating aspects of many anxiety disorders is the unpredictability of their symptoms. For sufferers, this can feel like perpetually waiting for the other shoe to drop. For the employer, whose business depends on predictable and consistent performance and attendance, it can be disruptive and frustrating as well.

However, most anxiety sufferers perform well at work. Many do not need accommodations at all, having learned ways to cope with their anxiety symptoms through trial and error, treatment, or a combination of both. Others require minimal assistance, i.e., a short-term flexible schedule to adjust to a new medication or an organized supervision style with regular meetings, clear assignments, and advance notice of unexpected changes. In fact, given the prevalence of anxiety disorders, it is highly likely that you have a coworker who successfully manages symptoms that no one s/he works with is aware of.

Just Give Me More (and More) Time

Much less frequent is the employee who uses his or her diagnosis to create more favorable (or convenient) work conditions. This is the employee, for example, whose use of intermittent leave routinely happens on a Friday or around a holiday, or who routinely requests a change of supervisor because his current one makes him nervous (While a change in supervision style can be a reasonable, and often effective accommodation, a change in supervisor may not be).

The best way to eliminate these situations is to a) have a clear absenteeism policy with call-in guidelines; b) track absenteeism patterns and, during medical certification, include any unusual pattern with the employee’s job description and ask the physician whether the employee’s diagnosis would create this pattern, and c) make sure job descriptions clearly outline interpersonal expectations (such as getting along with peers and managers) as essential job functions.

Don’t Worry; I’m (Trying to Be) Happy

Then there’s the flip side; the employee who keeps insisting she’s fine when she’s not. This is the employee who keeps coming to work even though she repeatedly falls apart, seeks out several coworkers to help her, and has to be taken by ambulance to the emergency room. Whether it’s because she’s fearful of losing her job if she takes time off, or in denial about the seriousness of her symptoms, she just doesn’t seem to grasp the limitations that she currently has.

In this situation, a first step is to encourage her to get the help she needs. Consider open questions that will encourage an employee to request support or accommodation. At the same time, remember that your job is not to probe into an employee’s personal life, to diagnose a problem, or to act as their counselor (It’s possible to have a conversation about this without ever mentioning the word “anxiety” or “mental illness,” i.e., by focusing on her behavior at work and the impact it is having on the people she works with.)

Make available whatever company resources you have to assist her. If she decides to pursue FMLA, make sure you provide the doctor with a copy of the job description and the employee’s attendance record; as many as one out of every three anxiety disorder sufferers also have a substance abuse problem and a Friday/Monday pattern of absences may be an indicator. You might also want to ask for a very specific return-to-work note.

The Bottom Line

Invisible disabilities like anxiety can’t be seen but they are surely felt – by the sufferer as well as those around him/her. Fortunately, they are also highly treatable; in fact, all of us work with individuals who have successfully dealt with anxiety or depression. With a little flexibility and adequate resources, employers can help anxious employees return to a more productive and happy state by focusing on whether and how they can accommodate them rather than whether or not a certain medical condition is a disability.

Companies also better take a second look at their job descriptions and address, where appropriate, the emotional stamina requirements of a job. This is important because, under the law, employers do not have to eliminate essential requirements, only how they are performed. If a job requires the ability to work long hours or with little supervision, make it clear. Not only will this provide some legal protection, it can help applicants who aren’t able to meet these demands to opt out before they fail.

You’ve seen him in movies on TV; the veteran who returns home a loose cannon, unpredictable and violent. You’ve read about him in the news; the soldier who goes berserk and kills 16 innocent civilians or mows down his comrades. And now you’re worried he (or she) might show up at your office for the next job interview.

Hidden Fears of Hidden Wounds

An estimated 17 percent of Iraqi and Afghanistan war veterans come home with post-traumatic stress disorder. Eight out of every 100 civilians also suffer from it. So we can look at the glass as half-empty or half full; the vast majority of returning soldiers don’t have PTSD, or combat veterans are twice as likely to have it in comparison to non-military peers.

The unemployment rates for veterans suggest that many hiring managers prefer to err on the side of caution. Their average jobless rate in 2010 was 11.5 percent compared with 9.4 percent for nonveterans. Younger veterans fared even worse — 20.9 percent compared with 17.3 percent for nonveterans.

In some respects, employers feel caught between a rock and a hard place when it comes to hiring returning combat veterans. On the one hand, most of us feel grateful to our brave soldiers, who have been on the front lines fighting to preserving our freedom. In addition to the patriotism than can lead employers to favor hiring veterans, we also recognize the character traits military service builds that can make them excellent employees.

On the other hand, this same sense of gratitude and duty can work against our returning veterans by making employers reluctant to seek out accurate information; after all, who wants to question the mental health of our military? All too often, this means ignoring the elephant that’s already in the room. In an anonymous June 2010 poll by the Society for Human Resource Management, more than half (53%) of responding HR professionals said they didn’t know if workers with PTSD are more likely to commit violence in the workplace. And a 2011 survey of 831 hiring managers by the Apollo Research Institute found that 39 percent were “less favorable” toward hiring military personnel when considering war-related psychological disorders

Let’s be honest; with weekly news stories about employees “going postal,” is a hiring manager who’s uncertain about the link between PTSD and violence going to take that chance?

Post-Traumatic Stress Disorder and Violence

First of all, the majority of people who experience a traumatic event don’t develop ongoing psychiatric problems. Those who do experience symptoms do so to varying degrees. These symptoms include severe anxiety, sleeplessness, nightmares, social isolation, emotional numbness, irritability and a feeling of being on guard. A key symptom: The individual relives a traumatic event when confronted with reminders or thinks about it when trying to do something else.

Among those who do experience post-traumatic stress disorder, the link between is unclear and indirect. For instance, a new study in the Journal of Consulting and Clinical Psychology found a correlation between some of the untreated symptoms of PTSD and criminal misbehavior. Interestingly, though, it wasn’t the PTSD diagnosis per se that was related to criminal arrests but rather PTSD sufferers who had a high degree of unaddressed anger and irritability. Similarly, there are plenty of pre-existing factors that can muddy the waters when trying to clarify the relationship between PTSD and violence; growing up in a violent home and a prior history of substance abuse increases the risk of aggression in veterans and civilians alike.

In reality, violence is uncommon among people with mental illness, and the rare instances that do occur are most often associated with other factors, such as active substance abuse or refusing to take medications. There are also protective factors that significantly decrease the likelihood of violence, such as effective mental health treatment, stable employment, and a strong support system.

The Bottom Line

Most veterans don’t develop PTSD, and the minority who do have the same kinds of reactions of people exposed to a hurricane or a car accident. Furthermore, it is treatable and rarely leads to violence. Employers who let their fears guide their hiring decisions are missing out on a wealth of talent (and may act counter to the law, a topic for another article). The best gift we can give our returning heroes is to hire those who are qualified for the job (not out of pity or indebtedness), assume they are mentally healthy (unless we are told or have evidence that suggests otherwise), and, if problems arise, focus on the behavior at issue rather than a diagnosis.

Workplace investigations are tough enough without the office grapevine gossiping about who did what to whom. As such, it’s standard practice to ask anyone who participates in an investigation to keep their mouths closed about what is discussed behind the closed doors. A new ruling from the National Labor Relations (NLRB), however, suggests that a blanket “keep your mouth shut” mandate may be improper.

The Case behind the Concern

Like many investigators, the HR director for Banner Heath Systems asked workers involved in an in-house investigation to not talk about the investigation with their co-workers. However, James, one of the employees involved objected that this request violated the rights of employees to discuss the terms and conditions of their employment with their coworkers. The National Labor Relations Board sided with James, saying that blanket requests for confidentiality during an investigation are overly broad and might have a chilling effect on appropriate – and legally protected – communications.

So what’s an Investigator to do?

This is a new ruling (July 30, 2012) and time will tell what this means from a practical standpoint. However, the NLRB’s ruling does offer some guidance. First of all, investigators can still ask witnesses to keep quiet as long as they have a legitimate business interest in making the request. This business interest must extend beyond the usual “we’re trying to protect the integrity of the investigation” reasoning.

So what business interest is legitimate? It is one that arises from that particular investigation. Perhaps, for example, the facts you’ve uncovered so far suggest that the accused might try to intimidate witnesses if s/he learns they will be talking to an investigator. Perhaps you haven’t had a chance to retrieve some valuable evidence and are concerned that, if the investigation leaks out, it might be destroyed before you have a chance to do so. Or perhaps you have reason to believe (again, based on what you’ve uncovered) that a group of witnesses might get together and “get their stories straight” before you have a chance to interview them individually.

In addition, when you do feel requests for privacy are warranted, limit the scope as much as possible. For instance, ask that the witnesses not discuss the investigation as long as it’s active or during work hours or on company property.

The Bottom Line

In every investigation, investigators walk a tightrope, trying to balance a number of competing interests. This recent ruling extends those competing interests to include the need to maintain confidentiality and employees’ rights to discuss the conditions of their employment. For now, the best solution during an investigation is to avoid blanket requests for privacy, articulate valid reasons for privacy requests when they occur, and make sure your requests are as limited as possible.

 

Most internal investigation courses do a great job talking about the law and how it applies to offensive behavior complaints, but fail to educate their students on the psychology involved. Here are a few ways in which an investigator can follow the letter of the law and still lose:

Treat Your Employee as a Plaintiff

You may have the most laid-back company on earth, but as soon as an employee complains of sexual harassment, it’s a whole new ball game. Employment attorneys, whose job it is to CYA, immediately jump into litigation mode and begin to anticipate every possible legal curve ball that your employee could throw at them. This creates anxiety in HR professionals, which changes how they interact with the complainant.

The employee, who is already paranoid about what will happen now that she’s opened her mouth, has her worst fears confirmed. She feels like a pariah, she is left in the dark about what’s happening, and she is convinced that the retaliation she feared would happen has begun.

Ignoring the perception of bias

It doesn’t matter if you have the calm of the Budha or the rational mind of Socrates, if the parties involved think you are biased, then, for all intent and purposes, you are. Never think your stellar investigation will persuade them otherwise. There are ways to assess this at the beginning of the investigation; make sure you do. Otherwise, you run the risk of conducting an internal investigation, having a dissatisfied party, and then calling me to do another one.

Talking Like a Lawyer

“You are being terminated for sexual harassment.” Really? Last time I checked, sexual harassment is a legal finding that can only be determined in a court of law. The accused may be guilty of a violation of company policy or misconduct, but don’t call it sexual harassment. Only a judge or jury can decide this.

Focusing on the Wrong Issue

Yes, it is unbelievably frustrating when you’ve done everything in your power to encourage your employees to speak up – conducted highly interactive harassment prevention training, routinely asked your employees how things are going, queried about any interpersonal problems as part of the performance review – and your employee is silent as death. Silent, that is, until his performance is under the gun or you’re speaking to her about her tendency to under-dress.

However, now is not the time to express that frustration. I can’t tell you how many times I’ve been conducting an independent investigation and the complainant kept telling me how “all the HR person focused on was why I didn’t say anything before now.” Yes, the fact is relevant – it is pertinent when assessing the complainant’s credibility, it is relevant to possible motives, etc. However, don’t spend time interrogating your complainant about why she kept her mouth shut until now; it will come back to haunt you.

The Bottom Line

Conducting a good offensive behavior investigation isn’t just about following the law; it’s about understanding the psychology behind it.

Contrary to popular belief, dress code lawsuits based on sex discrimination generally fail. This is because courts, recognizing that employees represent their company’s public image, have a lot of leeway in what they can require their employees to wear. And, yes, this is true even when they have different requirements for men and women.

A couple of recent lawsuits, however, have muddied the waters somewhat. Debrahlee Lorenzana, for instance, made the headlines in 2010 when she accused Citigroup of firing her because her curvaceous figure was “too distracting” for her male colleagues. Ms. Lorenzana alleged that her male employers essentially gave her a list of forbidden clothes – including pencil skirts, turtle necks, and spiked heels – that were allowed for other female employees. When she pointed this out, she was told these employees didn’t have the same delectable figure that she did. When she refused to revamp her wardrobe, she was fired.

Too Hot to Sell Sexy Lingerie?

Then came Lauren Odes, who, in May of this year, alleged that she was asked to tape down her breasts, wear baggy t-shirts, and/or wear a bathrobe to keep her male store owners from unnecessarily stimulating the male lingerie store owners. This case has an interesting twist because, not only is gender an issue here, but the religion of the store owners allegedly played a part in their requests – and ultimate termination of Ms. Odes.

The Quagmire of “Suggestive” Clothes

So what is the real issue here? With regard to Citigroup, there could be some legitimate question as to whether they had a discriminatory dress code if they had rules for “sexy” attire for women but not for men; this does not appear to be the case. Similarly, if either Ms. Odes or Ms. Lorenzana reported unwanted sexual conduct directed towards them by male coworkers (again, which does not appear to be the case), then either could have potential grounds for sexual harassment.

One reason both of these situations escalated was the way employers communicated to their employees about their dress code policy and their request for a wardrobe update. In my dress code training, I find that managers often use words like “provocative” or “suggestive” when talking to an under-dressed employee.

Provoking whom? Suggesting what? These words are not only offensive to the person, they can also be misinterpreted as an expression of sexual interest. Most of us are highly sensitive to any comments about our physical appearance; before your reissue your dress code as a summer reminder, make sure your managers know what to say when it’s violated.

One of the biggest frustrations I hear from my plaintiff attorney colleagues is this; jurors (and most people for that matter) have a very hard time understanding why anyone would put up with sexual harassment for weeks or months without doing anything about it.

In fact, ask 100 people on the street what they would do if some creep at work was coming on to them and 90 of them will say they would take some kind of action – tell the person to knock it off, go to HR or punch the guy (or gal) in the mouth. However, if you ask 100 people who have been in that situation what they actually did, you’ll get very different answers. The vast majority will tell you they either a) tried to ignore it; b) tried to stay away from the person; or c) found another way to get out of there (asked for a transfer or quit).

The Top Reason Employees Keep Their Mouths Shut

So why don’t intelligent, usually assertive employees speak up right when the offensive behavior starts? Hands down, the number one reason is this: “I’m afraid of what will happen.” Most employees realize that once the proverbial cat is out of the bag, there’s no way to put it back in – and they no longer have control over where it goes.

Just about anyone who’s thought about speaking up is terrified of what will happen if they do. Before s/he speaks up, s/he is just a regular employee. However, the minute the employee complains about offensive behavior, s/he becomes something far more sinister in many executive’s eyes. A complainer. A prospective litigant. A financial threat. And, all too often, the corporate fear surrounding this new role gets communicated in a myriad of ways.

When the Fear is Justified

Unfortunately, some employees can cite very good, company-specific reasons why they should keep their mouths shut. “I saw what happened to the last person who complained.” “My manager does the same thing and no one cares.” “HR can’t keep their mouths shut.”

It’s not just about how previous sexual harassment complaints have been handled; employees are all too aware of how employee complaints in general are dealt with. An employee who walks through a manager’s open door policy only to encounter a closed mind behind it learns pretty quickly the difference between policy and practice.

So What’s HR to Do?

Fear of retaliation is natural. I don’t think there’s any way to completely alleviate it. However, there are some things HR can do to minimize it, both before and after a complaint:

  • The most important step senior executives can take in this area is simply to communicate ethical expectations more clearly to employees. In fact, research suggests that improving clarity of expectations and disciplinary guidelines can reduce misconduct levels by more than 40%
  • Managers and supervisors should be trained on how to handle employee concerns and how to instill a corporate culture in which employees raise concerns without fear of reprisal. Employees not only expect their managers to know what to do when faced with an offensive behavior complaint, they expect them to do it with tact and sensitivity.
  • All employees should be put on notice (e.g., through training and the employee handbook) that, if they punish another employee for raising a concern, they will be subject to disciplinary action.

Any manager who thinks employee silence is golden should consider that the longer offensive behavior goes on, and the harder a company makes it for an employee to complain, the more likely it is that what’s golden will be the bank accounts of the attorneys involved.