Readers once again were quick to respond to our post “‘Oh Wow, You Look So Pretty I Can’t Even Concentrate’ – Sexual Banter Or Sexual Harassment?”
We will publish many more reader comments, but first we think that readers might want to chew on two good comments on workplace behavior from attorneys on the employee side of harassment cases.
Richard Seymour, an attorney in the Washington, DC area:
“I represent sexual harassment plaintiffs, among others, and also mediate these kinds of claims along with others. One of my hardest tasks is educating the claimants, and sometimes their counsel if new to the EEO field of law, that the conduct codes to which they were exposed in college or university–that anything that makes you uncomfortable is a violation–does not constitute the legal definition of harassment. In a Venn diagram, they are not even on the same page.
Many courts, in my view, require a quantity and intensity or conduct and remarks that is shockingly high, or they will throw out the case. Ordinary compliments about a woman’s appearance and attire do not come close to meeting this standard.
Popular skepticism is also high with these kinds of claims, which is another of the hundred reasons to be careful in selecting and presenting these claims. Employers, of course, have a legitimate interest in making sure that their employee-conduct codes stop overly familiar or overly intrusive behavior before it sinks to the level of something actionable. Using the collegiate standard as an internal code of conduct makes a lot of sense to me.
There are ways of going too far, of course. To prevent problems before they start, some employers have developed no-dating standards, particularly as between supervisors and the people they supervise. Even these can get employers in trouble in States like California, where a right to privacy is enshrined in the State Constitution, and violations of the right are actionable.
Employers legitimately wanting to stop problems before they arise have one further hurdle: their clients’ HR departments. Both in handling and in mediating cases, I am constantly surprised by the extent to which HR departments sometimes abandon their role as the first line of protection of the employer by stopping problems, and have taken up instead the role of enablers and defenders of the managers accused of harassment, even where a modest investigation would turn up a pattern of fairly extreme behavior that should have been stopped. Some of them invent all sorts of rules to avoid looking at unpleasant things: requiring that all complaints be in writing, looking at each complaint in isolation, requiring independent corroboration that can never be provided since the harassment did not take place in front of independent witnesses, dismissing the complaint because earlier women just laughed it off, and the like.
It seems to me that an outside investigation, by people who are really trained and competent to conduct it, provides the best protection for employers who are prepared to let the chips fall where they may, and act on the findings. I would also personally like to see employers or employer associations provide more realistic information to employees about what is and is not actionable harassment. Quoting EEOC guidance from its web site should be safe for them to do. The result would likely be that employers and people like me would receive fewer but more meritorious internal complaints.”
Jon Green, a NYC area employment attorney:
“It has been our firm’s experience (we are a plaintiff side firm) that ever since the Faragher/Ellerth decisions, we see very few sexual harassment claims from white collar workplaces. The same is not true for blue collar workplaces such as police or fire departments or unionized employers. I leave that to the sociologists (or our faulty marketing) to comment why. However, we do still do see differential treatment of women in white collar workplaces where management is male dominated. I have a matter right now where a young woman a little older than my early 20’s daughters has been accused by a middle age male COO of being too emotional when faced with insubordination by her direct report and has been threatened with firing.
As for flirtatious and/or sexual banter in the workplace, this is tricky. Rick Seymour is correct that innocent flirtations or even an isolated sexual comment that is not egregiously derogatory does not rise to actionable sexual harassment nor should it necessarily. My wife, who jokes that sexual harassment helps pay our bills, and others I know lament that workplaces may become too sterile as a result of overreaching policies to eradicate workplace harassment. After all, how many marriages have their origins from workplace romances–my maternal grandparents met this way.
The other unspoken issue is that employees are biological creatures who have sexual attractions that don’t just become dormant in the workplace. Obviously, actions arising from sexual attractions need to be curtailed in the workplace and as human beings we have evolved to put the brakes on our basic impulses. But at the same time, workplace zero tolerance harassment policies are reminiscent of Prohibition that created unintended consequences that ultimately led to its repeal.
So, what to do? I think that the legal standard of “unwanted” conduct is the key. If an employee/supervisor gets too flirtatious, the object of those flirtations has to politely but firmly say thanks, but no thanks — “romance in the workplace is not a good mix for me”. If that doesn’t work, then the employer complaint and remediation mechanisms should be utilized and kick in. This requires workforce training that has to be drummed in repeatedly.
My two cents from my experience representing sex harassment victims.”