Justin R. Erenkrantz - ICS 131

Monday, November 22, 1999

Dear Ma'am,

I appreciate the fact that you are asking for my advice on this matter. I will try and address each issue in turn.

One complaint is from a married male employee who says one of the female employees has been sending him messages asking if he'd like to meet her after work for a drink.

Without going into specifics, what is the working relationship between these two employees? Is the woman in a position to have a negative impact on the male employee's work environment since he refused her advances (or vice versa)? If there is a potential for conflict, it needs to be addressed swiftly and promptly by management. If the company does not take appropriate action immediately, we may lose the valuable services of either employee (if not both). I trust that you have already broached this scenario with our Human Resources and Legal departments to assess our liabilities in this situation. I am familiar enough with the common law to know that once the employer is notified of the hostile environment, they are then liable for any further harassment that may occur. I would suggest taking the advice of the Human Resources and Legal departments in this matter. Please do not ignore this scenario and act promptly. Other employees may be watching this scenario closely.

We are reluctant to start looking at email. We are uncertain how employees might react, and anyway, it is not clear what we would do?

I believe that your initial inclination to avoid reading emails is correct. Even though there is a clause technically allowing you to view our emails, I would strongly advise against taking a proactive approach to reading emails. Many employees who are not doing anything remotely illicit may take this course of action as a sign of distrust from the company. I personally believe that reading or interception of emails should only occur when there is due cause for such action. Blanketing every employee as a possible sexual predator is not the wisest course of action. The company needs to trust that its employees will perform in an appropriate manner. Doing otherwise may upset the tenuous balance of morale within the company.

Do you know of any email policies from other organizations that might be helpful as guides? What can you tell us about these policies? Even one good example would help a lot.

My former employer, Ingram Micro, has very strict and well-defined sexual harassment and email policies. I have included relevant sections at the end of this message. Instead of focusing on their sexual harassment and email policies (which you can read at the end of this message), I will focus on some other policies that help set the tone at Ingram Micro.

One of Ingram Micro’s key policies is their “open door” policy. In short, an open door policy dictates that every person in a managerial position is available for assistance. In order to be effective, this directive must apply to all levels of management. If an employee does not feel comfortable talking to their direct supervisor, they can attempt to address the issue with their supervisor’s supervisor. This procedure follows up the chain of command leading ultimately to the CEO. Another rationale behind the open-door policy is that an employee can step outside their department if the employee feels that the managers within their department will not act in an appropriate manner. Therefore, a person in our Development group with a problem can talk to a manager in Accounting if they feel that their supervisor will not address the problem in a reasonable manner. As always, the employee should also feel free in contacting someone in Human Resources to help resolve any conflicts. A strong support system is needed in any large corporation to help address encounters that arise in the real world.

Another key to a good policy is that everyone is aware of it and enforcement is public knowledge. A good policy is worth nothing if it is not advertised. Furthermore, enforcement cannot be privately administered. The best public policy is worth nothing if it is not enforced publicly. If policy is enforced behind closed doors, employees may not be aware of it and may mistakenly assume that the company does not enforce policy. The policies also need to be kept current with the changing social context of the corporation. Old and antiquated policies will be of little help to management if they do not address pertinent issues. If applicable policy is advertised and executed in a public manner, this company will have a strong legal foundation if (or when) any dispute arises.

However, policy must be based on the notion of reaction not action. This company should place trust in its employees that they will report any incidents of sexual harassment. Managers should not proactively seek out sexual harassment situations. All employees must be able to trust the management of a company. If that fragile trust is broken, then the employee may attempt to find employment at a company where trust is a vital component of the corporate culture. In today’s society, employees are the most valuable asset a corporation has and must be treated with all due respect.

Before I continue, I must point out an important distinction between sexual harassment and email. Email can be archived and stored long after the message is sent. In the event of a dispute, the original email can be retrieved and the exact wording can be repeated. It is for this reason that many companies dealing with sensitive data (law firms) mandate that all email be purged on a weekly basis. If the email no longer exists, the courts cannot subpoena it. This is in stark contrast to sexual harassment, which is not tangible. Sexual harassment is the outgrowth of interpersonal communication. One of the involved parties feels that the other has crossed an invisible line of propriety. When dealing with sexual harassment, our judicial system issues subpoenas and inquires about interpretation of events – there is no hard and fast rule that indicates whether a situation was sexual harassment. The courts attempt to recreate the events from biased sources - this leads to a highly unreliable recreation of the events.

How do we balance privacy issues with other important issues? ...Are there technical solutions we could follow to deal with this kind of problem? If so, what are they?

No, I do not think that there are any easy technical solutions to this problem. While you could certainly install a program that searches for keywords within all email messages, this would not necessarily catch all of the incidents. In fact, since the program would not understand the context of the messages, disproportionate amounts of false positives will inevitably occur. Another technical solution would be to indicate alerts when the volume of email between two employees exceeds a certain threshold. While this could indicate potential sexual harassment, legitimate email volume could easily exceed any threshold - after all, this company does try to promote email as a tool for interaction between group members. This would only expend valuable resources in trying to determine which cases are real incidents of sexual harassment (or any other violation of policy) from those that are not.

Let’s take an example into consideration. Consider the case of two coworkers who want to get together after a long and brutal week at the office. The first employee may send this message:

"Hey, where do you want to go tonight? We need to get away from here!"

The second employee could respond with:

"Gee, I do not know. Let me think about it. What's your home phone number?"

The first employee could then respond with his phone number. A problem arises during the course of this conversation: context. The context in which this message is placed says that this may not necessarily constitute sexual harassment. However, if this email exchange were to occur between a male supervisor and female employee, this message could very easily take on the appearance of impropriety that comes with sexual harassment. There is no current technical program that would understand where to draw the line between friendly coworker banter and sexual harassment.

This is the heart of the problem: no guidelines (or, for that matter, technical solutions) can resolve all disputes concerning such moral issues. A live human being must ultimately resolve any conflicts. The guidelines are just that – they guide in a certain method of action when certain events occur. However, there are two ways to attempt to deal with this problem: address it by issuing formal guidelines or ignore guidelines and place complete trust in management to deal with all situations fairly. Both sides have their advantages and disadvantages.

If the company decides to address the issue, they must address it fully and do so in a public manner. However, the flexibility of confronting the matter by policy lies in selective enforcement. The company can then place their trust in their managerial team to decide when they should call upon the policy. If a supervisor does not think an employee’s email usage is affecting their performance, then the policy does not have to be enforced. However, if the supervisor decides that their performance is affected, the policy can be enforced. The policy can also be strictly enforced company-wide when business concerns (or lawsuits) dictate the need for enforcement. However, the company must be extremely careful about over-enforcing strict policies without having due cause. Regardless, having a formal policy acts as a mediator in any conflicts. The policy acts as a source of reference for managers to call upon when a dispute arises.

The other alternative is to ignore the issue and do not state formal policies on issues. In this scenario, all matters are left up to the direct manager. This allows for a tremendous degree of flexibility within the company. The managers’ social values will dictate the work environment. Any disputes can be quickly brought up the chain of command to be addressed. However, this can also easily lead to anarchy when people encounter situations that they have not come across before. A policy of “ignore-and-deal” is probably the most appropriate for small companies lacking a large bureaucracy of management. A small company will probably not even have a Human Resources or Legal department to address any potential conflicts. By choosing this course of action, management has decided that the reward of not having a sexual harassment policy on the books (no time spent developing and enforcing a policy) outweighs the possible risk of lawsuit, which could destroy the company. In the environment of a small start-up company, management is focused on the immediate survival of the company, not on the long-term survivability. In the current cutthroat environment of small corporations, this emphasis is probably correct. They should not expend resources on problems that are highly bureaucratic in nature, but instead on the core business.

The points I raised in the last few paragraphs only concerns inter-corporate communications and dealings. There is another entity that must be considered: the judicial system. In the event of a sexual harassment incident, the offended employee is well within their rights to file a court case against the company. When this happens, all corporate matters and policies are open to investigation. If the company has their sexual harassment policy as well as all incident reports on the books, the company can point to the evidence at hand and say that they did not tolerate such action and dealt with them in the proscribed manner. However, if such a policy or enforcement record does not exist, then the company has no legal backing when it goes to court. All they have is heresy that their policy is a particular way. From a purely judicial standpoint, I would advise having a formal policy on the books and use selective enforcement with appropriate record keeping. This way, the company does not open itself up to legal liabilities that could damage the stability of the corporation.

These are only some of the issues that I believe you should consider. However, the decisions about corporate policies will have to come down from the highest levels of the company. One of the keys to widespread corporate success is consistency within the corporation. If one department has conflicting policies with another department within the same company without a proper rationale, employees may become concerned about the cohesiveness and survivability of the company. Urge your own superiors to consider this matter carefully. Ultimately, everyone within the company will be forced to deal with this problem. It is just a matter of when we must deal with it. I feel the sooner that this matter is addressed, the better.


Justin R. Erenkrantz

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