The title of this post expresses in sound-bite form an excellent and thoughtful comment, informed by experience, which we received from a reader who is a long-time HR professional. Anthony J. Zagarino, PHR, a Human Resources Training & Development Manager in New Jersey wrote the following, which could be a great short primer on the subject of banter v. harassment.
“This e-mail is in response to your article on Advisen.com, ‘Can Sexual ‘Banter’ Morph Into Sexual Harassment? The Stakes Are High.’ First, I am not a lawyer. So, I am responding purely from a practical HR perspective. I have been actively training employees and managers in Sexual Harassment and Unlawful Discrimination for the better part of my 27 year HR career. And during that time, I have had to deal with my fair share of sexual harassment complaints, lead investigations, make decisions about whether or not behavior has crossed the line, and if so, figure out how to remediate the problem and, if necessary, punish the offender.
During my career, I have operated under some basic principles about what behavior crosses the line. First, harassment is not normal social behavior appropriate for a professional environment. For me, that means if someone gets angry and drops the ‘F’ bomb once or twice a year, or perhaps more often, that behavior would not be considered pervasively hostile. Thus, the so-called “broken window” theory does not work for me. You cannot forbid, either by legislation or by company policy, normal workplace behavior, which includes banter. If the banter is pervasive and on-going and interferes with employees’ ability to get their jobs done, it has crossed the line.
But what the legislators and sometimes our judicial system fail to understand is that life is not black and white; sometimes that line of appropriate behavior moves depending on the situation. And, courts in different parts of the country will inconsistently judge where that line is.
Another principle I’ve operated under through the years which has helped me to navigate the stormy legal waters of harassment is something a labor attorney told me years ago. When you are faced with a potential case of unlawful harassment in the workplace, imagine, if you will, that your son or daughter, spouse or partner, is the victim – the object of the potentially inappropriate behavior in question. Ask yourself a key question: “Am I comfortable with my daughter [or son, spouse, or domestic partner] in that situation?” If the answer is “no” or “probably not,” then, as a “reasonable person,” you have just judged that the behavior has crossed that threshold. An oversimplified solution? Perhaps. But more often than not, it works.
The bottom line is that so much of this is, in fact, common sense, as mentioned in your article. And because human behavior is so complex, you have to look at each situation on a case-by-case basis. And the more we try to legislate our way through these issues, the more tangled the web we weave. We need to stop over-thinking this, and apply the common sense standard.
And I agree with many of your readers that if every bit of banter in the workplace is policed, you will take the humanity out of the work environment. On top of that, you will burden HR professionals to a degree that it will become the sole focus of their jobs. We are already burdened with a plethora of laws, regulations, compliance issues, affirmative action requirements, all well-intentioned, but not well-thought out by legislators regarding their implementation. You will, in effect, create an HR police force, asking them to do the impossible. Some banter will inevitably slip through the ‘broken window’ approach, and as a result, the plaintiffs’ bar will have more grounds on which to chase their ambulances. It’s time for common sense to prevail!”