When Sexual Harassment Isn't Sexual

Some studies have asked women to indicate whether they have been subjected to sexual harassment.  the studies found that about 25% of the women indicated "Yes."  But an interesting thing happens when you ask the same question not by using the words "sexual harassment," but instead defining specific behaviors.  This includes things we might define as "gender demeaning" or "gender derogatory" behavior.  When women were asked if they had ever experienced those types of behaviors in the workplace, the number responding "Yes" shot up to 60%.  So what does this mean?

It means that sometimes organizations looking for sexual harassment may miss the types of behaviors they should be looking for.  When a policy defines sexual harassment as "sexualized behavior" including propositions, lewd gestures, etc., many in the workplace might not think it includes gender demeaning behavior. Gender demeaning behavior is included in the "legal" definition or harassment,  and just as harmful to victims. 

A prohibition on sexual harassment in the workplace must include behaviors that indicate bias.  Comments or jokes that imply women are the weaker sex, more emotional, or flighty should be included.  Take these examples:

• Jokes about women being bad at math or science
• "Blond" jokes
• Comments that a woman's true calling is caring for house or children
• Comments that a woman's highest and best use in the workplace is making coffee, baking goodies, and taking notes

These types of comments all rely on stereotypes of women that should be included in the definition of gender harassment. 

Gender derogatory labels applied to women should also be included.  Look at this list:

• "darling" 
• "sweetheart" 
• "baby" 
• "honey" 

These nicknames denote a particular bias, and continual behavior like this should be included in prohibited behavior. 

How about using offensive comments implying women are less than men?  This behavior should be prohibited.  This might include comments like:

• Telling a woman to "man up" 
• Telling a woman to "grow a pair"
• Telling a woman she is too emotional, flighty, or even the more recent example where an attorney implied that women are more inclined to lie because they are the weaker sex 

By forgetting to include gender demeaning or implicitly biased behavior in the definition of sexual harassment, leaders miss an opportunity to assure that the team understands expectations for their behavior.  They also miss an opportunity to eliminate the kind of demeaning behavior that can lead to even more serious incidents of gender bias. 

Reporting Harassment, Encouraging the Elbow

According to Business Management Daily, looking at recent high profile sexual harassment claims, only 25%  were reported to internal HR. 

This is consistent with what we already knew, most complaints are unreported. We must encourage reporting more forcefully!  How do we do that?  Trust. Culture.

Did you see the TIME Magazine report of the Person of the Year?  Did you notice the cover of the Magazine?  It had five women, some sitting, some standing, all dressed in black.  All of the women were prominent in bringing those high profile harassment cases to light recently, or starting the #MeToo movement.  Many of the faces were recognizable.  Famous women.  Women that we "know." 

But did you notice the sixth woman on the cover? 

If you just saw the cover and did not read the article you may not have noticed her.  The sixth woman was visible only in the far right corner. 

Only her elbow was showing, also dressed in black.  She was not visibly shown or identified, because she had not yet reported her harassment, and was fearful of retaliation or backlash from her employer, co-workers, small town, or more. 

What we know from statistics like those cited in the first paragraph is that many people (not just women) suffer from harassment in the workplace (not just sexual).  And most do not report it. 

A 2017 survey of 2235 women showed over 30% had experienced harassment, but only 29% of those who experienced it reported it.

A 2013 poll indicated that 75% of those who experienced harassment did not report it.

A survey cited by the EEOC in 2016 reported that around 90% of those who experienced harassment did not report it. 

These statistics are even more depressing when you consider that employers have been working on prevention and correction of harassment for decades, but the reporting numbers have not changed.  A 1994 poll found that an almost identical number of people who experienced harassment did not report it: 72%.  So the number have not improved over the years. 

The reasons why people do not report are often psychological, but they also stem from issues of trust and organizational culture.  The psychological reasons, documented in many studies are things like:

• Fear of losing their job
• Fear of retaliation (In a 2003 study of those who reported harassment, 75 percent indicated they suffered retaliation for reporting.)
• Fear of getting someone into trouble (we are all taught from an early age that no one likes a tattletale!)
• Fear of disrupting the workplace, causing a scene or uproar
• Fear of being accused of having no sense of humor, not being a team player, being ostracized
• Fear of being embarrassed
• Fear of not being believed
• Fear of feeling powerless or not valued

The reasons are as varied as the person, but those are general categories of how people may respond in the real life situation.  So what do organizations do to encourage the elbows to come forward.


First, acknowledge that we DO want the elbows to come forward. 

Organizations can be proud of having no complaints, but from the above statistics we know every organization probably has had something happen.  A lack of complaints does not mean it is not happening.  Organizations need to continually encourage reporting, showing an interest in knowing what is happening.

Second, make sure everyone knows that it is their responsibility to report, whether they are the victim of harassment or not.  If you see something, say something. 

Third, continually reinforce that those who come forward are doing their part, as members of the team, to make sure that harassment is not occurring, and fix it when it does.   

Fourth, train supervisors and managers to encourage reporting, and how to act when something is reported. 

Fifth, conduct regular training where this message is reinforced. Training by itself without all these other things (especially number ten) will not work, but you have to keep sending the message, over and over. 

Sixth, followup on any reports to make sure no retaliation is occurring. 

Seventh, follow up with the workgroup where issues have been reported, to make sure the team knows that they will be held accountable for making sure those reporting problems are not treated badly because they came forward. Make sure everyone knows that no retaliation will be tolerated, and the whole workgroup is responsible.

Eighth, hold everyone accountable for their part. In a 2017 poll, 95% of women who reported experiencing harassment also reported that the perpetrator was unpunished.  That number varies by poll, but it is still very high in every poll I have seen.  Lack of accountability for those who perpetrate harassment means the elbow will remain in the shadows.  Hold supervisors responsible for not following up.  Hold team members responsible for not treating people appropriately. 

Ninth, work with leaders in leadership development programs so that they can develop the kinds of skills that will help them to prevent harassment, but especially encourage those who are experiencing it to come forward.  Listening skills, compassion, etc. 

Tenth, and most importantly, work on developing a culture of trust within your organization, where team members trust that their leaders are highly ethical, that the leader do what they say, and that the leader can be trusted to do the right thing when a problem arises. 

Another statistic from the 2017 poll is also noteworthy:  75% of Americans now identify sexual harassment in the workplace as a "problem" with 64% deeming it a "serious problem."  Public support for harassment prevention has never been higher, so the time is now for organizational leaders to bring the elbow out of the shadow. 

How Do We Confront and Eliminate Unconscious Bias in Leadership Decisions?

Consider these scenarios:

•       Jamal and Greg send nearly identical resumes to multiple companies in multiple industries, each applying for the same jobs.  Greg received 50% more “call backs” for interviews for those jobs.  The same thing happened when Emily and Lakisha sent out resumes, with Emily receiving the much higher level of call backs.[i]
•        When “Sue” is evaluated on her performance, successes are 2.4 times more likely to be attributed to team effort, rather than to Sue’s individual effort.  “Allen’s” performance review was twice as likely to contain strong performance words like transform, innovate and tackle, while “Sue’s” performance is much more likely to contain softer words like supportive, collaborative, and helpful.[ii]        Interestingly, when asked for words to describe a great manager, most responded with the stronger words typically used to describe the performance of males in the workplace.
•       Ginger and Rachel, who look nearly identical, apply for the same jobs, and one submits a candidate photo wearing professional attire, the other submits a photo wearing a low cut top.  The latter is 19 times more likely to land a job interview.[iii]

All of these studies simply help us to articulate and demonstrate what we already know.  Each human person has a multitude of innate and invisible biases.  Most biases we are not even aware that we have.  Yet those biases control our thoughts and sometimes even our actions.  Some of the biases may be harmless, like preferring fans of one sports team to another.  But others may stem from discriminatory attitudes towards a protected class, and those are the dangerous biases that we need to uncover and eliminate. 

Why do these unconscious biases exist?  Because our brains must function that way.  We take in way too much information to be able to consciously process all of it in any given moment.  So our brain reverts to what it knows or what it believes, processing information quickly, but not always flawlessly.  This results in biases like:

·         Confirmation bias, where we automatically assign more weight to information that confirms what we already believe, and

·         Familiarity bias where we are naturally more comfortable with those we know, or

·         Affinity bias where we are more comfortable with those who are like us.  Biologically we are “hard-wired” to prefer people who look like us, sound like us and share our interests and beliefs. 

We also tend to internalize society’s biases as well, accepting them as reality.  So stereotypes are born, and sometimes they are ingrained.  Women are better at taking notes, and are not as strong, they are helpful team players, but perhaps not aggressive leaders.  Older people are weaker, Jewish people are ______, simply fill in the blank for every category of people you can think of (Irish, Catholic, Muslim, Refugee, Native American, white men, gay, doctor, black, etc.)  and you will uncover common stereotypes. We all know people in those categories who do not fit the stereotype, yet the assumptions persist.  Unconsciously, it may cause a hiring partner to prefer a man for a manager position, or a younger person for a career position, or a woman for a nursing or teaching position. 

When such hidden biases play a part in organizational decision-making, the shortcuts that often serve us well  can lead to poor decisions and actual discrimination.  So organizational leaders have to recognize this phenomenon, and fight against it.  Decisions about who to hire and recruit, who would be a “good fit” for a particular position, assessments of individual performance, decisions on promotion to leadership, choices about building an effective team, etc. are all decisions that can be impacted by this hidden bias.

So what can you do?

• Be aware that unconscious bias affects all of us.  Don’t be afraid to examine your own biases. 
• On big decisions, slow down and elaborate on why you are reaching your conclusions. 
•  Be willing to be challenged.  Get the perspectives of a wide variety of people with different experiences.
• Think about whether any of the common biases, like familiarity biases or stereotyping, can be clouding your judgment.
• Attend training on unconscious bias whenever possible, and read as much as you can about it.
• Promote diversity and inclusion initiatives within your organizations.

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[i] http://www2.econ.iastate.edu/classes/econ321/orazem/bertrand_emily.pdf

[ii] http://www.businessinsider.com/gendered-language-in-performance-reviews-2015-10

[iii] http://fortune.com/2016/06/29/women-revealing-clothes-interview/?xid=soc_socialflow_linkedin_FORTUNE

Social Media and the Impact on Employee Relations and Human Resources

Human Resource professionals are faced with many challenges each day.  But one of the most intriguing challenges, with no easy solution,  is how the decisionmaking process in employee relations complaint investigations is affected by the rise of social media and instantaneous sharing of all manner of information. 

In the past, organizations simply believed that they could keep employee relations issues under wraps and handle them delicately, “in house,” without much fuss.  Now, organizations have to be prepared to respond quickly and appropriately when a complaint arises, and to anticipate the possibility that the workplace can be polarized not only by conversation and even gossip within the workplace, but in the public arena.  Their actions are now under a public microscope. 

So now organizations are caught between a rock and a hard place.  The EEOC tells us that we must conduct investigations in such a way that it protects the confidentiality of the complainant.  The NLRB tells organizations that they cannot prohibit employees from talking amongst themselves about workplace issues.  And the public, knowing little about a situation, will weigh in on social media, sometimes creating massive difficulties for the organization, as happened in the #DeleteUber campaign and social media uproar over Susan Fowler’s public complaint of harassment and inaction. 

Consider how Uber reacted to Fowler.  It was not necessarily a bad reaction.  On the same day Fowler’s allegations were posted, the CEO of Uber, Travis Kalanick, responded on Twitter, noting that the behavior she described was “abhorrent” and “against everything we believe in.” That probably seemed like a very strong statement opposing harassment, and Kalanick may have assumed that this would stem the tide of any negative publicity, particularly since he also indicated that he was unaware of the behavior prior to the posting, and would launch an immediate investigation.  The post was made on a Sunday, Kalanick’s first response was the same day, and by Monday Uber was reinforcing the extensive investigation and calling an “all hands” meeting for Tuesday.  But even these efforts did not eliminate the uproar, as many, many people, both at Uber and other organizations, weighed in with their own stories of harassment.  The story went viral and Uber’s reputation was damaged, perhaps irreparably. Susan Fowler then became a spokesperson for all things Uber, ultimately being asked for her comment on every action that Uber took, including the results of the investigation launched and its recommendations, all of which were made public.  (Fowler’s response, predictably, was that Uber’s response and proposed action was “all optics” and her Twitter comment indicated “they’ll never apologize. I’ve gotten nothing but aggressive hostility from them.”)[i]

What will prevent your next harassment case from appearing in social media, with a less-than-favorable view of your organization? One thing you CANNOT do: prohibit employees from discussing their working conditions on social media.  So what can you do? 

Organizations have to become crisis communicators, and invoke strategies whenever allegations first surface.  Not only does the organization need to launch an immediate investigation, but leaders must also be prepared to make public statements, to the extent possible, outlining their leadership philosophy and their response.  And leaders need to be prepared to do this at the speed of Twitter.  When you learn of a negative posting that seems to be catching steam, how long does it take for an official statement?  If the answer is three-five hours, that may be too long.  Things you can do now:
As I have been advocating all along, you need to be very clear on your organization’s and your leader’s approaches to harassment allegations and discrimination.  If you talk the talk, you must walk the walk.  If you have worked hard on your systems and your culture, you can easily use that culture to show how you take allegations seriously and will respond promptly and appropriately. 

•       You can prepare sample statements that address any number of employee conduct issues that you might foresee appearing on social media.  Than you can respond more quickly.
•        You can make sure all of your leaders know social media platforms and what they can do, and are prepared to engage those platforms when necessary, taking ownership and leadership of any employee relations issues. 
•      You can review your confidentiality policies and processes when it comes to allegations of discrimination and harassment.  Is it a blanket statement that everything will be confidential?  Or does it allow for flexibility?  Does it provide discipline for those who violate it (probably not a good idea!)?  Who does it protect? If it is designed to protect the alleged victim, and s/he waives that protection by publicizing allegations, is it appropriate for the organization to also make public statements?  Is the confidentiality provision designed to protect the reputation of the accused?  How will that protection play on social media, ie, will it appear to be protective of the accused?  Fox News initially responded to allegations of harassment by defending the accused  & dismissing the allegations, and that did not go over well, as it added further flame to the idea that Fox was defensive and refused to admit harassment was occurring.[ii]

The Boy Scout motto is probably best here:  Be prepared!  

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[i] https://www.washingtonpost.com/news/the-switch/wp/2017/06/13/ex-uber-engineer-whose-complaint-started-firms-internal-investigation-dismisses-findings-as-optics/?utm_term=.7801586f9925

[ii] https://www.nytimes.com/2017/04/01/business/media/bill-oreilly-sexual-harassment-fox-news.html

Culture is Everything

In my last blog post, I wrote about the importance of leadership in creating a respectful workplace.  But what about organizational culture?  Isn’t that a more important factor in maintaining a respectful workplace?  Here is why leadership comes first:

•        Leadership forms and influences culture.
•        Culture drives behavior.  
•        Behavior results in a respectful workplace.

A particular organizational culture could be inclusive, diverse, and respectful, but if a new leader comes in, all that could change over time. 

So what about culture and its influence on the organization?  I mentioned the 2016 EEOC study in my last post, and in that same study, the EEOC concluded:  “Over and over again, during the course of our study, we heard that workplace culture has the greatest impact on allowing harassment to flourish, or conversely, in preventing harassment.” Of course the EEOC also recognized that leadership is what drives culture. 

So how does an organization assure that organizational culture will prevent harassment?  I use a visual aid to demonstrate the different elements of a respectful workplace: 

Each of these elements are important.  Each contributes in reinforcing or defeating a culture of respect.  What are the elements to look for in your own organization?

What are your organization’s values? Culture is set by the values of the organization. As an example, Google has been ranked as one of the “happiest” places to work.  The organization places a high value on diversity and inclusion, and has been one of the leaders in efforts to eliminate bias in decisionmaking.[1] The organization is dedicated to valuing people, celebrating successes, accountability for diversity and inclusion, and other efforts that have shaped the Google culture.[2]  Riot Games, an organization also listed in Fortune’s 100 Best Places to Work spent time developing their culture by looking for “workplace toxicity” (defined to include behaviors generally categorized as racist, sexist, homophobic and other forms of “hate speech”) in their team members’ gaming behaviors, and used strategies designed to eliminate it.[3]  These organizations have both worked hard to analyze and define their values, and develop initiatives to further those values.

How intense are your organization’s efforts to address diversity and inclusion?  Studies show that the more diverse the workplace, the less likely harassment will occur.  That is one of the reasons why Google has concentrated so heavily on diversity and inclusion.  The EEOC pointed to the lack of diversity in a workforce as one of the “risk factors” for harassing behaviors.  Diversity helps to define organizational culture.

What types of behaviors are formally or informally rewarded? Team members do not learn workplace norms through policies, they learn through behavior, attitudes, remarks, jokes, and the organizational response to situations (spoken or unspoken). Does your organization have a high performer who has bad habits like fits of anger, bad language, rude treatment?  Rewarding that person, even if it is for their money-making ability, sends the message that behavior is tolerated. 

What happens when a policy clashes with the organizational culture? As Gustavo Grodnitzky writes in his book Culture Trumps Everything, when a policy and culture clash, culture will always win out.  Leaders must set culture expectations, and define organizational values.

How does your organization address general workplace civility? Studies show that in a workplace culture where there is bullying or general incivility, harassment is more likely to occur.  Tolerance of disrespectful treatment may give implicit permission to engage in the behavior, and contributes to a culture of tolerance. 

How does your organization encourage reporting of inappropriate behavior? The EEOC cited the effectiveness of training such as “bystander intervention” in combating sexual violence on campus (“If you see something, say something.”) Does your organization value reporting? Encourage and reward such behavior, and develop skills in reporting, giving permission even to bystanders to report behavior.  The “don’t tattle” culture many grew up with is strong. Counteract that by enhancing the organizational value that all of us are responsible for respect in the workplace. 

The development of organizational culture is a complex topic that cannot be covered in depth here, but these ideas will help leaders begin to assess their own organizational culture of respect.

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[1] https://rework.withgoogle.com/guides/unbiasing-raise-awareness/steps/watch-unconscious-bias-at-work/

[2] https://rework.withgoogle.com/

[3] https://rework.withgoogle.com/case-studies/riot-games-assessing-toxicity/

Leaders Lead the Way in a Respectful Workplace

• ·         Fox News
• ·         Uber
• ·         Sterling Jewelers
• ·         UC Berkeley

What do all of these organizations have in common?  In 2017, they are in the news, and not in a favorable way. 

All of these major U.S. employers are in the news because of high profile claims of discrimination and harassment in the workplace.  And what do all of these cases tells us about how we prevent harassment?  It starts at the top!

In June 2016, the Chairs of the Equal Employment Opportunity Commission Select Task Force on the Study of Harassment in the Workplace asked employers to “reboot” harassment prevention efforts.  The EEOC used a poker term, “double down”[1], calling on employers to get more serious about efforts to prevent harassment.  After spending 18 months listening to business leaders, legal scholars, and social science researchers in the area of harassment, the EEOC said: “we heard that leadership and commitment to a diverse, inclusive, and respectful workplace in which harassment is simply not acceptable is paramount. And we heard that this leadership must come from the very top of the organization.”   The EEOC also said:  “Conversely, leaders who do not model respectful behavior, who are tolerant of demeaning conduct or remarks by others, or who fail to support anti-harassment policies with necessary resources, may foster a culture conducive to harassment.”  Over the course of the decades since organizations first began to address harassment in the workplace, many research projects have been completed.  Some of those focus upon leadership.  One study looked at leadership in the military.[2] What the study found was that “harassment occurred less frequently in groups whose members perceive that the organization’s upper levels (i.e., leaders) will not tolerate such behavior….”

When leadership does not tolerate the behavior, it is less likely to occur.  When leadership tolerates or condones disrespectful behavior, it will occur more frequently. 

What types of leadership behaviors increase the frequency of harassment in the workplace?  The research is in:

·         Tolerance.  When a leader is dismissive of behavior that is troublesome, or casts aspersions on the “accuser,” the message to the organization is clear:  This type of behavior will be tolerated here.  Those who might have a tendency to engage in disrespectful behavior are given implicit permission, from the top, to engage in the behavior.  Those who might be subjected to the behavior understand implicitly that, if they complain, they will not be believed, or, as in the case of Fox News, they will lose their jobs.  When the leader models harassing or disrespectful behaviors that implies tolerance. This is what happened at Fox News, the leader at the very top, the powerful CEO, Roger Ailes, was engaging in these behaviors.  That gave permission to people lower on the org chart, like Bill O‘Reilly, to be accused of the same types of behavior.

·         Permissive in addressing problems. When harassment is found, what are the consequences?  When the leader is “easy” on the harasser, the leader gives implicit permission for the behavior to continue.  This is what Berkeley leaders discovered when they did not hold prominent professors responsible for the behavior, because termination “would ruin his career,”[3]  or eliminate a research pioneer[4] and the behavior at Berkeley continued. 

·         Lack of zero tolerance policies and procedures supported and widely known. Leaders have to be personally involved in assuring that policies are clear, widely distributed, and endorsed by the leader.

·         Training that lacks leadership support and clear directives against harassment. Leaders must be personally supportive of training for all team members, especially supervisors, introducing it and explaining its importance, and supporting accountability and consequences when training is ignored or not attended.

So, when someone asks you why it is so important for leaders to be invested in diversity and harassment prevention at your organization, your answer is: Leaders lead the way!

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[1] “Double Down” is a poker term meaning to double one’s bet.  The EEOC chairs intended this message: significantly increase, the time, effort, energy and commitment to eliminating or reducing harassment in the workplace.

[2] Fitzgerald, L.; Drasgow, F.; Magley, V.:  Sexual Harassment in the Armed Forces:  A Test of an Integrated Model,  11 Military Psychology 3, pp. 329-343 (1999)

[3] http://jezebel.com/berkeley-school-of-law-dean-downgraded-to-professor-aft-1764011841

[4] http://jezebel.com/celebrated-astronomer-at-uc-berkeley-sexually-harasses-1736356408

Does Your Company Harassment Prevention Training Miss the Mark?

Most companies are aware of their obligation to train employees about harassment in the workplace.  But a review of recent litigation cases shows that many employers still miss the mark.  Training is required to effectively prevent harassment (while recognizing that not all harassment can be prevented). A training program should not be simply a “check-the-box” “we have a training program” effort.  If we want to truly create a nearly harassment-free workplace, we must analyze what serves as effective training, and implement that in the workplace. Here is a short checklist:

Train employees to recognize problem behaviors.  Presumably, if the goal is preventing behavior, the first element that must be included is helping supervisors and employees recognize inappropriate behavior.  Often, those who do not understand the impact of certain behaviors, or how the behavior is perceived, do not recognize the behavior as inappropriate.  This type of training seeks to have an effect on cognitive perception.  Research has shown that individuals who received this kind of training were more likely to recognize harassing behaviors.

Help employees recognize problem behaviors with respect to all protected classes.  We are seeing a rise in problem inappropriate workplace behaviors  towards other protected classes such as race, national origin, religion, etc.  Many employers began harassment prevention programs by focusing upon sexual harassment.  While it is important to continue to include that, employers must seriously address the other types of harassment, which can be just as costly in terms of workplace morale, employee engagement, not to mention legal defense costs. 

Make sure employees know of leadership support for a harassment-free workplace.  Another goal is helping employees to understand the organization’s policies on the subject matter.  This type of communicative training program can only be effective if it is tied into the communication of shared values and vision, in addition to merely communicating the content of the policy.

Make sure employees know where to go when a problem occurs. Another goal might be to help employees understand how to alert someone when the behavior occurs.    

Make sure supervisors know how to respond. Another goal would be to help supervisors understand how to appropriately respond.[i] Depending upon how each supervisor perceives the situation, this kind of training may increase their skill level in both recognizing the issue, and understanding appropriate responses. 

Determine whether your workplace needs respectful workplace training. A further goal might be to sensitize employees to the seriousness of the issue, and the impact the workplace and individuals.  This type of training seeks to change individual perceptions and behavior, and might also include helping employees to understand why those subjected to the behavior might complain, and how the behavior impacts victims.  Through training that includes role play, harassment scenarios, victim impact, and discussion about offensiveness from different protected class perspectives, this can have an impact on altering attitudes.

Make sure training includes everyone.  While tracking is sometimes difficult in a larger company, making sure everyone receives regular training is important.

Make sure training is not a one-time, lecture format.  To accomplish the goals identified as more proactive, ie, changing culture, training must be delivered in a sustained, effective way, and not a one-time lecture format.  The latter may be effective only to provide information rather than changing attitudes and culture.

Employers and HR professionals will be well served by an in depth review of their training policies, practices and content, keeping these principles in mind. 

.

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[i]One court held the employer had not reasonably prevented harassment when it did not train supervisors.  The court noted that there was no guidance provided on how to investigate (if that was their role) document, and resolve harassment complaints once they were reported.  EEOC v. Boh Bros. Construction Co., 731 F.3d 444 (5^th Cir. 2013).