Harassment by officials a tough road to hoe

HARASSMENT ISSUES: WHAT ELECTED OFFICIALS NEED TO KNOW

By: Tami Tanoue, CIRSA Executive Director

 

Harassment issues are surfacing at the level of governing bodies and elected officials. Like an unexpected virus variant, this permutation has left some municipalities unprepared to deal with the consequences. The results have included ineffective responses, public embarrassment, and loss of public confidence.

Why Should You Care About Harassment Issues at Your Level?
You might be thinking that the governing body working environment is not the same as the employee workplace. You’re all co-equals, elected by and accountable only to the voters. The people “hired” you, and the people are the only ones who should be able to “fire” you. You each got into this voluntarily for the love of your municipality, and not as your livelihood, and those who can’t stand the heat should get out of the kitchen. Right?

 

Well, wrong! Let’s start by looking at your place in the municipal organization. You’re at the very top of the organizational chart and the chain of command. As such, you are a key influencer of the organizational climate. A recent study concludes that the organizational climate is the most potent predictor of harassment in the workplace!1 You’re setting the tone for how people throughout the organization interact with one another. If the tone you set is disrespectful, inhumane, or dysfunctional, then that behavior will be modeled and replicated throughout the organization! Do you want that?

Another reason you should care: the higher up in the organization a harassment issue surfaces, the more difficult it is to deal with. Because of legal requirements and public expectations for transparency, you must necessarily conduct most of your work in public. If you think that a harassment allegation at your level can be dealt with behind closed doors, you may be disappointed.

Also, the consequence for a well-founded allegation of harassment isn’t straightforward when it comes to an elected official. How is an elected official to be “disciplined” by his or her peers? Concepts such as “corrective action up to and including termination” don’t necessarily translate well when applied to elected officials.

And assuming you’ve laid out a process for dealing such allegations, who gets involved in that process? Those in the administrative team who normally provide you with support, advice, and assistance may well say, “sorry, this is above my pay grade,” requiring you to go outside your organization, at great expense, for help.

Policies, Legal Definitions, Civil Liability Laws, and Their Limitations
The definition of “harassment” differs from policy to policy. One common factor, though, is that harassment generally must be “severe or pervasive” in order to constitute a policy violation. The “severe or pervasive” standard is consistent with the U.S. Equal Employment Opportunity Commission’s (EEOC) view of offensive conduct that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, or the Americans with Disabilities Act of 1990: the conduct must be severe enough that enduring the offensive conduct “becomes a condition of continued employment”; or must be “severe or pervasive” enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.2

Thus, policies, as well as civil rights laws affording protection from harassment, set a high bar for liability. A common question, then, becomes: “well, if my conduct is short of ‘severe or pervasive,’ there’s no problem, right?” Stated differently, if someone’s behaving badly, but the behavior doesn’t quite hit the high bar for a policy violation or for civil liability, does that make the conduct acceptable?

Another form of liability is criminal culpability. How often have you heard someone justifying their bad behavior in this way: “Well, I haven’t committed any conduct that could be described as criminal.” Does that make the conduct OK?

Let’s think about this! In any other aspect of your work as a public official, is the standard for acceptable conduct this low? When it comes to ethical or conflict of interest issues, for example, would we be able to get by with a low bar like “well, just don’t commit a crime,” or “just don’t expose yourself or our municipality to civil liability”? No! Municipal officials pride themselves in meeting the highest standards of conduct when it comes to ethical issues or conflicts of interest. So why should we set such a low bar for the way we behave towards one another?

And here’s another critical issue. Harassment laws are generally aimed at employment matters: employee-employee issues, supervisor-employee relationships, employer-employee responsibilities, and the like. These laws aren’t designed for issues between elected officials, who aren’t employees, aren’t accountable to an employer, and are beyond the reach of common workplace remedies like termination, suspension, demotion, etc. Thus, you’ll run across investigations of elected officials’ conduct that might reach a conclusion along these lines: “The allegation of a hostile work environment based on sexual harassment was unfounded. This conclusion is reached because the Civil Rights Act of 1964 does not apply to elected officials.” But, does that make the conduct acceptable? Should exposure to civil liability be the standard by which conduct is gauged?

Most reasonable people would not live their lives by the guideline, “I’m OK as long as I avoid civil or criminal liability”; we would want to hold ourselves to a much higher standard! And, as leaders, we certainly wouldn’t want to model such a low bar for the rest of the organization. So let’s ditch the legal parsing. Let’s focus away from the “h” word, harassment. Let’s not spend too much time arguing over definitions. What we need to do is to confront and articulate the expectations we should have for ourselves, and for our colleagues, in the environment in which we operate.

Risk Factors for Harassment
The EEOC has been doing some interesting work around harassment issues in recent years. Risk factors have been identified that, if present, increase the likelihood that there will be harassment issues in the workplace. You can view the complete list on the EEOC’s website,3 but some of the risk factors include:

  • Homogeneity – lack of diversity, “currently only one minority among us.”
  • Workplaces where some employees don’t conform to workplace norms – “rough and tumble” or single-sex dominated workplace culture.
  • Cultural and language differences – arrival of new personnel with different cultures, nationalities; segregation of personnel with different cultures or nationalities.
  • Workplaces with “high value” personnel.
  • Workplaces that rely on customer service or client satisfaction.