Shenanigans Or Sexual Harassment?

By: Randy Dotinga

Sometimes sexual harassment is as clear as an inappropriate pat on the rear. And just about everybody would agree that bosses shouldn’t use crude terms for women on the job.

But do dirty jokes in the pressroom count? What about reporters screaming out obscenities on deadline? Or advertising reps exchanging e-mails about the nice pecs on their new manager?

Experts admit that even they have trouble distinguishing between harmless workplace shenanigans and an illegal “hostile environment.” But there is agreement on one thing: the path that victims should take if they feel they’re being harassed. If someone is acting inappropriately, put up a red light and then head up the chain of command, experts say.

“Tell the person who is engaged in the improper conduct to stop it,” said Lisa Klerman, an employment law attorney with Morrison and Foerster in Los Angeles. “Then report it to management and the human resources department if there is one. You should report to people high enough in the company who can do something about it. They can’t lawfully retaliate against you for doing that.”

Cara Brennan, human resources manager at The Monterey County (Calif.) Herald, adds that it’s important to properly follow procedure as outlined in the employee handbook. “Problems can happen when the person doesn’t report it to the right people,” she said. “You tell a supervisor who’s not your direct supervisor, and they don’t know where to take it.”

Klerman advises that alleged victims keep a journal of the “harassing events” listing what happened, who was involved, and who witnessed the incidents. “You should expect the company to investigate and interview whoever the complainant thinks they should interview.”

Workers who report sexual harassment should be able to learn the results of the investigation and what disciplinary action, if any, was taken, Klerman said.

Victims of harassment can turn to the courts too. As discussed in last week’s column, courts are extremely unfriendly to any boss who engages in “quid pro quo” — such as forcing an employee to agree to sexual favors in return for a promotion. But a “hostile environment” is more difficult to define, and judges may give employers more leeway when it is alleged, said Randal S. White, an employment lawyer with Fox, Rothschild, O’Brien & Frankel in Doylestown, Pa.

“Generally, a single incident or isolated incidents of offensive sexual conduct or remarks do not create an abusive environment,” White said. “The occasional telling of an off-color joke is not necessarily sexual harassment. Casual flirtation is not necessarily sexual harassment.”

But that doesn’t mean that employees can get away with saying whatever they want either. Companies can set their own standards, and courts have limits of their own.

“When you start to see a pattern of sexually charged remarks or horseplay, courts will tend to side with victims of such behavior,” White said. “When sexual banter turns physical, courts take a closer look. The frequent ‘pat on the butt’ for a job well done is likely to end up in a lawsuit.”

In fact, inappropriate physical contact isn’t just an issue between male and female employees. As The New York Times Magazine reported in a recent cover story, courts are seeing more cases of same-sex harassment, many of them involving heterosexual men who torture other male employees through humiliating horseplay or wisecracks about their masculinity.

In this area and others, the law regarding sexual harassment remains confusing and convoluted. But the stakes are as high as ever. “The days of turning a blind eye to boorish behavior in the work-place are long gone,” White said. “Now, it’s a sure-fire way to get hit with an expensive lawsuit.”

COMING NEXT WEEK: “Do you have any questions?” In many job interviews, that’s the cue for you to ask about money. But who should be the first to offer an actual number? What are the keys to negotiating a decent salary?

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