At what point does sexual banter, teasing or “roughhousing” become sexual harassment sufficient to qualify as a hostile work environment? And does a work environment which permits or turns a blind eye to sexual banter inevitably become a hostile work environment? A recent case led us to (re)examine this issue.
We did a post on May 1, 2013 in which we quoted Howard Levitt of the Financial Post who said, “The line between sexual banter and harassment can sometimes be indistinct, even blurred. But crossing it is costly.” We noted a case where a general manager of a Canadian restaurant in Ottawa sexually bantered with a waitress who he supervised and then propositioned her.
Last April we cautioned that anti-harassment policies must be followed and must “become part of the fabric of the organization.” But a little later, on May 6, 2013 we asked “How about when the comment does not rise to even mere banter but is only a casual remark or even simply a workplace compliment? Are these comments safe or taboo?” And “can a compliment be considered harassment?”
What should the “fabric of the organization” consist of, and how severe should “zero tolerance” be?
We wrote on December 16, 2013 about a case where in the “sexualized [work] environment” of a Canadian mattress store “crude banter was the norm.” A female employee admitted that she “joked about penis size and sex, along with everyone else.” This led to her losing her later harassment claim. Was this decision correct? Or right? Or fair?
A couple of times we looked at the so-called “broken windows theory” and mused about what would be the effect of a zero tolerance policy that was strict enough to prohibit even sexual banter. For example, on November 3, 2013, we wrote about this theory, which was posited in 1982 at the height of urban blight and crime and argued that if an urban environment was kept well-ordered and every “broken window” repaired (i.e., every act of public disorder addressed) this might prevent escalation into more serious crime. The theorists claimed that “if a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.”
Last February we asked: what if employers (who, hopefully, adhere to a well-publicized “zero-tolerance” policy towards sexual harassment, or any kind of harassment for that matter), actively discouraged, showed disapproval or otherwise rebuked every stray or trivial unwanted comment or act that did not rise to a legally-actionable level? Would this cause a decrease in actionable harassment or a less hostile workplace?
Responses from our readers were mixed and all over the board, and we could not get a consensus from the HR professionals and counsel who responded. Some agreed that every bit of banter should be sanctioned, while others felt that a workplace devoid of teasing and banter was too sterile to contemplate (or work in).
The case which led us to write today’s post involved an employee who claimed sex-based hostile work environment based solely upon the following facts (taken verbatim for the decision of the NY federal appeals court decison): “two instances of touching, the more significant being an incident in which Mendez’s supervisor touched his lower back for four to five seconds. There was also workplace banter about a supervisor’s sexual orientation and nightlife, and a single occasion where a supervisor told Mendez he was gay but “[y]ou just don’t know it.”
The Court affirmed the dismissal of the case, holding that: “considering ‘all the circumstances’ … the episodes complained of were ‘simply too episodic, insufficiently serious, and . . . insufficiently tied to his gender or sexual orientation, to have materially altered the conditions of [Mendez’s] employment.’ Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”
Is “common sense, and an appropriate sensitivity to social context” the right formula? Too subjective? Or does it properly take into account “common sense” and raise it to a legal standard? (Note: for what its worth, the Court declared for some unstated reason that the decision is not to be deemed of precedential value).
At this point we would like to ask readers to comment on this post, this new case, the “broken windows theory,” and/or our initial query: At what point does sexual banter, teasing or “roughhousing” become sexual harassment sufficient to qualify as a hostile work environment? And does a work environment which permits or turns a blind eye to sexual banter inevitably become a hostile work environment?