Written Testimony of Sindy Warren, Esq., Warren & Associates LLC

I. Background

I have been immersed in issues of workplace harassment since graduating Stanford Law School in 1996. For eight years I worked at large firms representing employers. Then, in 2004 I began my consulting practice with the aim of improving workplaces while helping to ensure legal compliance. I have conducted nearly 200 workplace investigations, many centered on harassment. I have trained many workplaces on harassment prevention, have helped to create and implement harassment prevention plans, and have consulted with employers in responding to and remediating issues of workplace harassment. I am also currently engaged as an expert witness on behalf of the plaintiff in a harassment case in an Ohio state court. The observations that follow are based on these experiences.

II. Representative Sample of Work on Harassment Issues

1. A local grocery store chain. I was retained by a Cleveland-area grocery store chain in 2012 to conduct annual anti-harassment training for all employees across fourteen stores for two years. The chain implemented the training as part of a consent decree with the EEOC, arising out of a reported incident of harassment. The incident involved inappropriate comments made by an older male employee to a younger female co-worker.

During the two years of training, I became quite familiar with the organizational culture. It was, in general, an informal environment filled with a variety of ages, races, and ethnic backgrounds. Educational levels tended to be fairly low; a significant portion of the workforce never graduated from high school. One of the contributing factors to potential and alleged workplace harassment was the diversity among the workforce. What seemed innocuous and even funny to some was offensive to others. Through the training, the organization was able to establish a clear sense of acceptable and unacceptable behaviors in the workplace. Employees seemed to buy in to the newly articulated standards. This was evident in the level of participation in the training sessions, which was encouraged. The organization has noticed a big shift in workplace behavior, with far less reported harassment concerns since the completion of the training.

2. A park district. Beginning in 2004 I was retained by a local park district responsible for annually providing approximately two and a half million visitors with recreational and educational experiences at a wide range of indoor and outdoor wildlife facilities. I trained the entire workforce on harassment prevention. I also investigated several incidents of alleged sexual harassment over the years. The park district has a casual work environment, and in some cases boundaries became blurred as a result. For example, supervisors became overly friendly with subordinates and in one case a romantic relationship ensued. It did not end well and the subordinate accused the supervisor of harassment and retaliation based on his response to her ending the relationship. My investigation substantiated the allegations.

3. Restaurants and Food Services. I have been repeatedly engaged to conduct anti-harassment training for a local franchise of a national chain restaurant. Due to the transient nature of the workplace and the high level of turnover, the franchise has had to deal with some harassment issues, largely consisting of inappropriate comments based on sex. They have noticed a difference in the number of complaints since implementing training and rolling out a strictly enforced anti-fraternization policy, which prohibits supervisors from having relationships with and interacting with subordinates in any kind of a social setting.

I have conducted several investigations involving high-level employees at two national food service companies, most concerning sexual harassment. A couple of investigations alleged race-based harassment. In all of these investigations, the allegations surrounded inappropriate, sexist or racist comments in the workplace. Some allegations were substantiated, others were not. My most recent investigation involved, among other things, a claim of highly inappropriate and sexual comments to a sales employee by a customer. The employer had a clear system in place to handle such situations, which helped it act quickly upon learning of the allegations.

I conducted an investigation into serious allegations of sexual harassment at a fast food restaurant in Northeast Ohio; it is part of a well-known national chain. The allegations involved a store manager hurling sexual epithets at a female subordinate and making physical sexual advances. While the allegations were substantiated, the employer did not take any remedial action and seemed to be quite upset with the investigation's conclusions.

I am currently serving as an expert witness for the plaintiff in a race and disability-based harassment case against another fast food establishment in Northeast Ohio. The allegations center around the behavior of a manager and co-workers who repeatedly denigrated an employee based on a learning disability and made frequent racist jokes and called him racially derogatory names. Social media is playing a big role in the case, as the manager in question connected with his employees via twitter and Facebook and repeatedly posted racially derogatory "jokes" and comments about the plaintiff and also commented on his alleged cognitive impairment. The employer in this case did no training on harassment. While it had a written policy, employees were unaware of its contents.

4. Medical professionals. I have been retained over a dozen times to conduct one-on-one sensitivity training for doctors at one of the most renowned hospitals in the country. Each of these doctors is male. Each engagement was based on the hospital's concerns about comments made by these doctors to female co-workers or, in most cases, subordinates. Before my training, most of the doctors had sat through some kind of anti-harassment training in the past. But the degree to which they had been engaged in the training - most of which was web-based - seemed limited. The one-on-one sessions provided the doctors with not just an overview of the applicable legal standards, but also a practical approach to workplace interactions and relationships. The opportunity to ask questions and have a non-judgmental dialogue also seemed to boost their understanding.

5. A local union. I recently conducted an investigation into allegations of sexual harassment made by a young female office worker for a local union. She alleged she was harassed over a period of six months by the principal officer, the highest-ranking member of the office. The alleged wrongdoer also carried(s) a very high and prestigious position in the international union. The allegations were verified by a series of text messages wherein the senior male employee essentially asked his subordinate to engage in a sexual relationship with him, in exchange for monetary reward and professional growth. I substantiated the allegations and concluded the violations of the union's harassment policy were egregious, particularly in light of the power differential between the parties. Thereafter I testified at a hearing on the union's behalf, as it is currently seeking the removal of its principal officer. While the union had an anti-harassment policy and a complaint procedure, it was basically rendered meaningless by the fact that the ultimate enforcer of the policy was the individual who engaged in a sustained pattern of violating it.

6. Law firms. I have been retained by two local law firms to conduct anti-harassment training for their lawyers and staff. The engagements arose out of the clients' understanding of their legal obligations as opposed to in response to a specific incident or concern. I found members of both firms receptive to and engaged in the training, asking questions, coming up with hypotheticals, and really trying to wrap their heads around the thornier issues that arise in harassment law. While I really enjoyed working with these clients, I find it somewhat striking that only two firms sought out these services. I know of many firms who would not even consider rolling out harassment training and others who do it by rote (i.e., web-based training), while the participants only marginally pay attention.

7. Private clubs. I have been retained by a couple of local social clubs (hunting, golf, tennis) to provide anti-harassment training. The engagements arose out of situations where either co-workers or club members allegedly engaged in sexually inappropriate behavior. In the case of the questionable behavior by a member, heavy drinking was involved. In the other scenario, a lack of understanding of appropriate workplace behavior and discourse seemed to be the problem. Both clients believed the training - which focused, in part, on how to appropriately respond to potential incidents of harassment - was beneficial in preventing future incidents.

8. Schools. I do a lot of work with public and private schools, ranging from elementary schools to universities and colleges. I have been retained on at least a dozen occasions to investigate allegations of harassment. While some of these investigations resulted in findings that a school's harassment policy was violated, in the majority of these situations school employees misused the term "harassment" to describe what they perceived to be unfair treatment. I have seen this phenomenon in non-academic settings as well, but it has been most striking in the school arena.

9. Miscellaneous.Recent anti-harassment training clients include a large and well-known steel company, a small marketing firm, a small engineering firm, a large construction company, and a couple of mid-size manufacturing companies. Most of these clients came to seek training because of an incident of alleged workplace harassment. After sorting through the particulars, they sought to educate their workforce and prevent future incidents of harassment. I have found participants in each of these organizations to be interested and engaged in the training sessions. One reason is, I believe, the interactive nature of the sessions, where participation is encouraged and sometimes required.

III. Observations and Recommendations

If I had to point to one industry that seems to have the most flagrant issues with harassment, it would be the fast food industry. The investigation I conducted some years ago and the case for which I am presently engaged as an expert witness are two of the most egregious examples of workplace harassment I have encountered. In both cases, there seemed to be a complete disinterest in the issue by management. There was no training for managers or employees, no established or well-communicated complaint policy, and no assurances of non-retaliation for complaining. For most fast food establishments, many workers are young and transient; I believe this demographic reality contributes to the problem.

At the same time, I have worked with other food service and industry clients that have taken issues of workplace harassment extremely seriously and have nipped such issues in the bud. One of the food services companies I referenced has sent me all over the country to investigate allegations, even though the vast majority of my work is local.

Employers that understand the importance of a harassment prevention plan - including a solid and well-communicated policy, a clear complaint procedure coupled with assurances of non-retaliation, and anti-harassment training - are undoubtedly at an enormous advantage when it comes to preventing and remediating workplace harassment. Those that do not are likely to suffer from workplace harassment issues and their effects (employees become distracted and, more importantly, disengaged, which negatively impacts almost all metrics of a healthy work environment, including productivity and profitability).

The answer is simple, though not necessarily easy. If employers commit to creating and implementing harassment prevention plans, workplace harassment will decline, and fast. There will always be a bad actor here or there, but there will be systems in place to redress such situations. Employers must consider the aforementioned to be necessary ingredients of an effective harassment prevention plan: (1) the crafting of a comprehensive policy, including a clear complaint procedure and a strong and strongly enforced statement against retaliation, (2) the rolling out and communicating of said policy, and (3) regular, interactive and dynamic training on what the policy means in the day to day life of an organization and its workers.