Our posts about sexual banter and sexual harassment, and the relationship (if any) between the two, have brought out the best in our readers – thoughtful, enlightening and helpful comments
Tom Vogele, an Orange County, California attorney noted that “the nature of `harmless’ sexual banter is that it too often tends to escalate into actionable harassment.” He continued:
“We tried an EEOC case in Alaska where a male Special Staff Assistant to the Governor acted, in the words of his supervisor, “immaturely” by routinely talking about sexual matters with a female SSA. The female SSA was uncomfortable but did not firmly ask the male SSA to cease and desist.
Perhaps emboldened by her failure to say “no” the banter turned into far more sexually oriented comments about the female SSA’s sex life and body. The banter eventually turned into touching and leering that resulted in a formal complaint against the State for hostile work environment and failure to supervise the male SSA and enforce its own informal anti-harassment policy.
These types of complaints can be extremely costly to defend (we represented the charging party) and expose an employer to large civil liability on top of very bad press.
The best rule is probably, “don’t say anything in the workplace you wouldn’t say to your mother or first grade teacher.” While it might sound overly strict, the cost-benefit analysis says it doesn’t pay to engage in sexual banter.”