(upbeat music) - Hello and welcome to "Prairie Pulse".

Coming up a little bit later in the show, we'll hear a musical performance from Chris Koza, but first our guest joining me now is attorney Lisa Edison-Smith with the Vogel Law Firm in Fargo.

Lisa, thanks for joining us today.

- Thanks for having me.

- As we get started, tell the folks a little bit about yourself and your background.

- Well, I'm a North Dakota kid.

I'm originally from Milnor, North Dakota, and a graduate of NDSU, big Bison fan I'd add.

And became an accountant after I went to NDSU and subsequently, when I had a four-year-old and a seven-year-old, went to law school, and I've been practicing law at the Vogel Law Firm here in Fargo since 1997.

- Okay, and your specialty is workforce harassment.

And that's what we're here today to talk about.

What got you involved in that?

- Well, when I went to law school, it was a particularly pivotal area in labor employment law.

There were a lot of cases before the Supreme Court about sexual harassment, and that was always my interest in practicing law.

So I have always practiced employment and labor law, primarily on the management side, since I came to the Vogel firm.

- You know, well, and we're probably gonna talk a lot about sexual harassment, but is there a legal definition for that?

- You mentioned sexual harassment, and sexual harassment is only one form of harassment.

So we can get into that, but sexual harassment is a form of sex discrimination.

Sex discrimination's prohibited by both federal and state law.

And it wasn't until actually 1986 that the US Supreme Court recognized that sexual harassment was a form of sexual discrimination, which can come in the form of sexual comments or other kinds of abusive or harassing behavior directed at individuals in the workplace place based on sex.

So, you know, sexual harassment doesn't need to be overtly sexual.

It doesn't need to be sexual proposals or jokes, but it needs to be abusive and harassing behavior in the workplace that creates a severe or pervasive atmosphere of harassment based on sex.

- Well, and you know, obviously then what you're saying, it's pretty complex, probably.

- It is, and we're, you know, the line drawing in sexual is extremely hard to do because courts struggle with that.

What's severe or pervasive?

When does a casual joke cross that line over into something that's potentially violative of the sexual harassment laws?

- What's the difference in say harassment, workplace harassment and a hostile work environment?

- Well, there are essentially two forms of sexual harassment and hostile work environment is one form of sexual harassment.

There are two types of harassment.

One is the Latin phrase, quid pro quo.

And that's what you think of the old "Mad Men" style boss chasing the assistant around the desk.

That's either you have a relationship with me or you'll either be terminated or it will hurt your career.

So that's something for something, you have the relationship, and you'll do well, or you'll be terminated.

Hostile work environment is different.

Hostile work environment doesn't necessarily involve requests for sex or for sexual behavior, but it involves abusive conduct, maybe jokes.

It could be, we see in this electronic era, screen savers, all sorts of messages, and maybe Facebook posts, things that are shared in the workplace.

It could be any kind of that behavior that's derogatory and directed at one sex based on their sex.

And it has to have a substantial impact on the workplace in order to be actionable under the statutes.

- Mm-hmm, well, you know, right now in the news, a lot with the New York Governor Cuomo's allegations.

North Dakota legislature, Luke Simons was expelled from the state legislature.

Can you talk about maybe those two cases from your perspective?

- Well, I don't have all of the details on 'em, I'm so I can't comment on the specifics of them.

When it comes to Governor Cuomo, I view the Governor Cuomo case as sort of an extension of what we've seen happening since the Me Too movement really in 2017 began.

An individual in a position of power who is alleged to have abused that power both by making comments of a sexual nature, by inappropriate leading personal comments and by just out-and-out sexual conduct towards junior staffers.

With Representative Simons, it's a little bit more complex as I understand it in that there's not the element of requests for sexual favors, but there's derogatory comments, suggestive comments towards women, and comments that, for example, suggest women belong in a particular role.

And that are derogatory towards women in general.

- Mm-hmm.

When did companies start to take this issue seriously?

- Well that really is a question that depends on who you talk to, because there are there are a significant number of people who say companies aren't taking it seriously right now.

But as I indicated, 1986 is the first that the US Supreme Court recognized this, sexual harassment, as being actionable.

In the late '90s, there were a couple of Supreme Court cases that said if companies took prompt action, and if they took steps to have a policy and to train their employees about sexual harassment, that may be a defense to claims.

And so really in the late '90s is when you started to see companies really developing those policies and developing that training.

And I've been practicing law since 1996 and in Fargo since 1997.

And part of my practice has always been providing training to management, to employees, on sexual harassment.

So it's been going on for a long time with varying degrees of success.

- Mm-hmm, so do most companies have that training video or seminar for employees or- - Larger companies, yes.

Most larger companies have incorporated, you know, they have policies that are reviewed and updated annually, they're reviewed with employees, and they have some form of training.

A live training or many have developed computer module training updates, online courses that employees can take on an annual basis.

And that's been one of the questions is how effective has that training really been?

Because it's been around since the late '90s, and yet here we are in 2021, and we continue to see really high profile cases.

So one of the challenges to folks like us in reaching out to our clients in doing this is what is really effective?

And the EEOC which is the federal agency that enforces sexual harassment law has concluded that some of the canned training that employers have done, the click the button on the online training, really isn't very effective.

- Hmm, well, can you talk about some of the gray areas, or, you know, things like commenting about a new haircut or commenting about an outfit, or things like that?

At what point does it cross the line and?

- Well, the Supreme Court has said, Justice Scalia said that Title VII, which is the federal law that prohibits sexual harassment, it's not intended to be a general civility code, and it's not intended to address, you know, general courtesies in the workplace.

So, you know, a comment I might say to you, "John, that's a really nice lookin' tie, you look good today," and that's perfectly innocuous, but the issue can be a couple of things.

It can be one, the frequency.

How frequent are you commenting about someone's appearance, particularly how frequently are you commenting about, in most cases, women's appearance.

And then the other thing is tone.

And the specifics of the comments, a comment that might say, you know, "Lisa, that's a nice lookin' suit you have on," or "I really like those heels," perfectly fine.

But if I say it a little differently, if I say "That's a really nice looking suit, those slacks look really good on you."

The intent can be different, and how it's received, which is the most important thing, by the recipient, can be very different.

So frequent comments about appearance, and particularly suggestive comments about particular items of wardrobe can be very problematic.

- Yeah, if an employee feels like they're being harassed, what recourse do they typically have?

- Well, again, you know, most employers in North Dakota, I think even quite small employers have sexual harassment policies.

They know that that's a risk reduction policy and it's a good thing to have.

Most of the time, the first thing that an employee can do depending on the level of severity and the level of their discomfort with it, is to try to address it with the person.

You know, themselves, directly, to say "I really didn't appreciate that comment."

Or, you know, I don't like those jokes.

If you feel comfortable doing it, that can be a first step, but sometimes you don't feel comfortable doing it just because of the nature of what the perceived threat is.

Or you feel like you've done it and the conduct continues.

Then most employers have, they should have, policies that say here's the first step you would take.

And it typically would be go to human resources person if you're in an organization that is large enough to have human resources people or go to a particular manager.

- So did I just hear you say, sometimes the issues can be resolved between employees, and if they're comfortable, that may be a first step.

- Absolutely, you know, policies that require employees to confront their harassers, they're not effective.

And they're not looked on well by the courts in some cases.

Policies that suggest, hey if you feel comfortable to address it, I've seen many cases in which what originally started out as, you know, what people perceived as good natured joking has escalated to a point where one or more of the parties is just not comfortable with it, but didn't feel comfortable just saying, "You know, I really wish you wouldn't say that anymore."

Where if the person had done that, before it got to that point, it might've been effective.

Not all cases, but some cases it might be effective just to say, you know, "I don't appreciate that."

- You know, have you seen more cases with all the media we have, of Facebook, Twitter, TikToking, texting even, I mean, has it elevated because of that or has it just always been there and it's just ways that it happens sometimes.

- Well I think, I don't know that it's actually more frequent, but it's documented.

People don't think necessarily about the fact that when you send a text message or you send a Snapchat, that that person may very well have a copy of that.

And there's rarely a case that I'm involved in that doesn't involve substantial, either social media, private messaging, or text messaging, often photos, and things of that nature.

So all of us have that little computer in our pocket in our phone, and so now it's just so much easier to capture what actually happened.

And people are very casual about what they'll say and send to other people.

- Mm-hmm, so obviously, without getting into details or names, what are some of the examples you've had to deal with legally?

- Well, you know, I think some, the examples run the gamut, and there's a perception perhaps that sexual harassment occurs at maybe high levels in the organization or very low levels, very educated people or people with limited education.

And that's not the case.

The reality is I've seen cases that involved males that worked in a shop, you know, very blue collar jobs.

And what they claimed was an intent to be humorous, but actually some fairly egregious harassment of other males.

Pornography, pictures, sexual comments towards other males, all the way up to presidents, CEOs of organizations, trying to force unwelcome conduct on subordinates.

- Mm-hmm yeah, well, you mentioned this, and in the past, was there sort of an anything goes attitude in some organizations?

- Absolutely, absolutely.

And I mean, as some of the cases you cited, Harvey Weinstein, you know, we look at Matt Lauer, those are sophisticated organizations.

Those are powerful people, but they're people who there was a willingness to look the other way.

And it's sort of, you know, there's a lot of discussion about white privilege or white male privilege.

And I do think, and when we look at some of those more recent, powerful individuals, they're not all white.

There's Bill Cosby in there too, but the privilege of power is very obvious that this has continued up into 2020 and '21.

So yes, it's been a problem.

You have construction sites, anything goes, but you also have seen in the Me Too movement that that has extended to the highest levels of corporate America and the C-suite.

That powerful people have been able to get away with behavior that's unacceptable and it's unlawful.

- So can you talk about or explain the importance of due process in these cases?

- Due process, it's an important concept in the law, which is basically simply that an individual who's accused should have the opportunity to present his or her side of whatever in response to the allegations.

And in advising employers, that's always an important step, that the accused has the opportunity both to present their response to it, and to offer up, "I have witnesses and evidence on my part."

And that is an important part that I always advise employers, never go simply on one side of the story, even if you don't think there's any evidence that's gonna change the outcome, you need to give that person the opportunity to be heard and present his or her side of the story.

- Yeah, so, you know, probably a rhetorical question.

Is there ever fear that a false allegation will ruin an employee's career and it will stick with 'em?

- There absolutely is.

In my experience, and I do a lot of training on this subject, false allegations, completely false, fabricated allegations are pretty rare.

Exaggerated allegations, then you're getting into a little different territory.

But I have been involved, actually, very early on in my career in allegations that at first blush appeared to be very serious, brought by a female against a male supervisor that in the end there was documentary evidence that they were false.

And fortunately, in that case, the employer handled it well, they did a thorough investigation, and were able to refute the allegations before there was public knowledge of them.

So before there was that damage to a person's career.

So that's always a concern.

But again, my experience is truly fabricated allegations have been rare in my practice.

- You know, do you find that smaller businesses deal with this less effectively than larger companies?

Or is it the reverse?

- You know, that's a great question because that's contextual.

In some cases, smaller businesses are better.

They know their employees, they are concerned, and they're going to generally react quickly.

Now that can be a benefit.

What can be a real difficulty for smaller businesses is if you have allegations, if you have a mom and pop run shop, and the allegation is against one of the owners of the business, who does the employee go to?

And they may or may not have any outlet for employees to complain to, and employees may not feel they can complain.

And in many cases, they may have inadequately developed policies or suggestions of what employees can do.

- Yeah, you mentioned earlier, I mean, we think about a male employee harassing a female employee, usually, or a supervisor, but you said it can happen same-sex, but it also can happen a female harassing a male employee.

Can you explain or comment a little more on that?

- Yeah, absolutely.

There's Title VII, which is again the federal law, recognizes and the courts have recognized that sexual harassment can be of any variety.

It can be male on female.

It can be female on male.

It can be same-sex.

it can be subordinate harassing a supervisor, even in some cases, although it's more typically supervisor versus harassing a subordinate.

So, you know, and I've dealt with all of those types of cases.

- Hmm, yeah, well, so what would your message be to companies or HR departments, probably, when counseling or advising them on this issue?

Maybe you can give a little free legal advice today.

- Well, you know, it's not particularly legal advice 'cause a lot of it's common sense, but common sense will be beneficial legally to employers.

One, take sexual harassment, and any kind of harassment, very seriously, you know, have a policy, make sure your employees are trained on that policy, and update that periodically.

And then take action when something happens, take prompt action, let your employees know that there's some teeth in those policies and that the expectations are the same from the top of the organization to the bottom.

The worst situations I've been involved in is when I've been asked to do harassment training and everyone attends except upper-level management.

That's the worst message you can send.

The message has to come from the top down.

- Okay, good advice, and we're out of time.

If people want more information, where can they go?

- I would suggest that they go to EEOC, the Equal Employment Opportunity Commission website.

They go to the North Dakota Department of Labor, Minnesota Department of Human Rights.

Google any of those or we have a website at vogellaw.com that has many resources that address the same kind of issues.

- Lisa, thanks for joining us today.

- Thank you.

- Stay tuned for more.

(upbeat music) Chris Koza is a composer from the Minneapolis area who combines pop, rock, folk, and indy to create his own form of Americana style music.

He is joined by Jourdan Myers for this performance.

(lively guitar music) ♪ Traffic standing like a stone ♪ ♪ 10 million people all alone ♪ ♪ They wait for a signal change ♪ ♪ Everyone pushin' to get home ♪ ♪ Walk in the door, set down the key ♪ ♪ Turn on the lights and the TV ♪ ♪ The world blinking off and on ♪ ♪ 10 million faces in the screen ♪ ♪ Radio wave ♪ ♪ Rushin' through the open air ♪ ♪ You can never taste or touch ♪ ♪ Spillin' into everywhere ♪ ♪ I'm reaching out for you ♪ ♪ You're reaching out for me ♪ ♪ Through a physical plane ♪ ♪ I keep falling for a radio wave ♪ (lively guitar and keyboard music) ♪ Late at night the city sleeps ♪ ♪ The freeway sounds just like the sea ♪ ♪ The waves crashing on forever ♪ ♪ Water washes over me ♪ ♪ Radio wave ♪ ♪ A flyaway frequency ♪ ♪ You can never hold or feel ♪ ♪ The spirit of the in-between ♪ ♪ I'm drifting after you ♪ ♪ You're drifting after me ♪ ♪ Through a physical plane ♪ ♪ I keep falling for a radio wave ♪ ♪ Rushin' through the open air ♪ ♪ No, no, no, no, you can never taste or touch ♪ ♪ Spilling into everywhere ♪ ♪ I'm reaching out for you ♪ ♪ You're reaching out for me ♪ ♪ Through a physical plane ♪ ♪ I keep falling for a radio wave ♪ ♪ Wave ♪ ♪ Wave ♪ ♪ Wave ♪ ♪ The waves crashin' on forever ♪ ♪ The waves crashin' on forever ♪ ♪ The waves crashin' on, crashin' on ♪ ♪ The waves crashin' on forever ♪ - Well, that's all we have on "Prairie Pulse" for this week, and as always, thanks for watching.

(upbeat music) - [Announcer] Funded by the Minnesota Arts and Cultural Heritage Fund with money from the vote of the people of Minnesota on November 4th, 2008.

And by the members of Prairie Public.

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