Devon continues to ask Carmen out – seven times – and she continues to make excuses. Is that okay? Is Devon harassing Carmen? Carmen never said no to Devon. Should he have gotten the hint? Most of us would say “yes,” yet Devon just believed Carmen was playing hard to get. More to the point, how many times is it okay for someone to ask a work colleague out before it’s too many? Three times, four times? Asking someone out once would be okay, and ten times would be too many, but where on the continuum does it go from being okay to not okay?
What if Carmen told Devon the first time “thank you Devon, that is kind of you. However, I’m seeing someone else and am not interested in dating. Please don’t ask again.” If Devon asked a second time, it would be one time too many. Thus, not okay.
The Legal Standard
Employers would like employees to politely say “no;” however, it’s not required. Conversely, if Carmen wanted to pursue a sexual harassment claim against the organization, she would first have to alert someone in the organization that she believes she is being harassed, allowing the organization to handle it.
These situations are further exacerbated by another legal standard, which is what is required to prove harassment? Virtually all areas of the law require “act and intent” by the perpetrator. However, in the broad area of Title VII, the Civil Rights Act of 1964, including all forms of discrimination, harassment, hostile work environment, etc., the standard is the perpetrator’s act and the victim’s perceptions or feelings. WOW. How do we know what someone else is thinking or feeling: we don’t have crystal balls?
To better understand the differences in the proof required, think of homicide, which requires act and intent. If a motorist who is abiding by all local traffic laws, hits and kills a person who darts out in front of her car, that would likely be a pure accident, thus no criminal liability would attach: There was an act, but no intent. Homicide runs the gamut to “murder one,” when a person plans a homicide and carries it out. There is the act, and the intent to commit homicide. The person is just as dead in each example; however, the perpetrator would be treated vastly differently based upon intent.
If sexual harassment requires the perpetrator’s act and the victim’s feelings or perceptions, how does the perpetrator know when she has stepped over the line? Clearly, if the victim tells her to stop, then she must stop. If nothing is said, how would she know? These “questions of fact,” require an administrative agency, a jury or a judge to decide.
The Gray Areas
A Gray Area: Off-Hours
Each Friday night, Molly and available MIS staff members go across the street to TGIF’s for Happy Hour. Several are regulars, including Carl Colleague and Tammy Team Member. Molly relaxes during Happy Hour, calling Carl “honey” and “babe,” cussing and telling dirty jokes. Last Friday, Molly and several staff started telling dirty jokes, with Carl telling a particularly graphic one. The following Monday, Deirdre Department Member went to HR to report the “hostile work environment” at TGIF’s.
Sexual Harassment? Those arguing “no” often cite: 1) it was after work hours, we were on our own time, and it wasn’t on company property; 2) it wasn’t a required work activity, so no one needed to be there; and, 3) Molly is neutral in the workplace so whatever she does on her own time doesn’t affect us.
Those arguing “yes” typically cite: 1) everyone knows that work matters are discussed, and if we don’t go, we’re not in the loop; 2) these get-togethers are about teambuilding and if we miss out, we’re not considered part of the team; and, 3) “Molly might be “neutral” at work, but what about her filthy mouth at TGIF’s? I’m offended and I now know who the real Molly is. I don’t feel comfortable.”
These cases are a toss-up; if I were on the jury, I’d vote yes. To me, it’s less about physical location and more about power positions: Molly is the boss, whether she’s sitting at her desk, or across the street at TGIF’s.
For those in doubt, substitute another protected class. For instance, what if Molly were telling anti-Muslin jokes, and Deirdre is Muslim. What will she think? “Wow, Molly knows I’m Muslim, and I’ll never get ahead with her. She’s hates me.”
The Real Problem
However, Molly’s behavior at the Friday get-togethers was at a minimum poor judgement, and possibly sexual harassment. Molly was suspended for two weeks, and received a strong letter about her poor judgement, which could be removed in a year if “she kept her nose clean, particularly at the Friday get togethers’.”
Fear of Retaliation
Tips for Identifying, Preventing and Handling Workplace Sexual Harassment
- It’s not the alleged perpetrators intent; rather the perception of the victim. Stand in someone else’s shoes: How might one’s behavior be perceived by another?
- If unsure, ask: “I’m interested in going out with you. Are you interested?” or, “I’m a huggy person; are you okay with a hug, or do you prefer a handshake?”
- Think of one’s workplace position, rather than the physical locale of the activity: I’m the boss whether I’m on-site or at TGIF’s.
- Manage the matter: “hey, Carl, we’re all having fun here; however, the dirty jokes are not okay. Stop.”
- Publish a policy, have all sign off.
- Conduct harassment prevention training.
- Take all allegations seriously and respectfully.
- Conduct neutral investigations, using an outside resource, where appropriate.
- Discipline, where needed.
- Regardless of the outcome, ensure there is no form of retribution or retaliation, advising the victim to immediately alert the applicable internal person/s if he feels it has happened.