A co-worker/friend of mine has been having problems with a fellow co-worker. They were friendly and joked, but non-friend cw has crossed the line several times recently, in c-w//f’s opinion.
Now, to the question. Co-worker/friend has a friend who is a lawyer. Co-worker friend’s friend (lawyer) told her not to say anything to offending co-worker but to report it officially. Why? Would talking to him directly hurt any future punishments? Could it be used against f/c-w somehow? It’s been reported and has been sent up the corporate ladder, just curious why she was told not to talk to offending co-worker.
Thanks in advance - DESK
IIRC from a very recent thread here, by talking to the other person about it your friend could be considered to be creating a hostile work environment (especially if they get other coworkers in their side) and could end up being the person losing their job.
Also, from the lawyers POV, a)other people getting involved will only muddy the waters and confuse the issues. Timelines will get fuzzy. People won’t remember who said what to whom etc etc.
Has friend/cw actually informed non-friend/cw that she feels they have ‘crossed the line’ in their joking?
That ought to be her first action, not running off to see a lawyer friend.
I always thought that if the offending was in the form of banter there was some sort of responsibility on the part of the offended party to inform the offender that the jokes were unwelcome?
The more egregarious it gets, rather obviously, the less the need for this…
Based on the passive/aggresive style of your post, there is probably no cw/friend, just you. A lawyer wouldn’t address a question in this form either, except to ask a lot more questions. The offending co-worker is probably someone who threatens your imaginary status in the work place. You will eventually get fired after your co-workers get tired of your rumor-mongering and baseless imputations.
Or you could just provide some details so the question could be answered.
For advances to be considered sexual harrassment, they must be “unwanted”. If the person making the advances believes that in their friendly joking banter that the other person may not find the advances unwanted, then it will be very hard to prove that it is illegal sexual harrassment.
The manner in how to handle it, can be various. (1) The person receiving the advances could say, “I don’t like your advances, please stop them”, in some form or fashion. If they continue, then it potentially would qualify as sexual harrassment.
(2) The other way of handling is for the person receiving the advances to inform their supervisor or HR and they go and talk to the person making the advances. This alone is not sufficient for the person making the advances to be fired or disciplined, as they could assert that based upon the friendly joking and bantering that they thought the advances may be welcomed. Since they have been duly warned by management, if it continues, it will most likely result in discipline or termination.
Option 2 is most likely to result in a difficult workplace setting between the advancee and the advancor, as management has been put on notice. But it also, avoids any future “he said, she said”.
You guys could well be right, and I hope you are. But I was explicitly told in a Sexual Harassment Training course that this is not the case. I don’t think the person giving the course was a lawyer, but they had been trained in these issues. They said that not only did the person claiming “hostile work environment” not have to make the slightest objection, but they could even initiate such jokes themselves, and then turn around and claim harassment. Their claim would then be that they were offended all along and were just trying to fit in.
Of course that doesn’t mean that they would win their case. A jury might not believe them. In addition, it would have to be something that a reasonable person might find objectionable. But this person’s claim was that if the judge or jury believed this person’s testimony that they were just trying to fit in and not make waves but were really harassed, and the actions are such that could be reasonably interpreted as “hostile work environment” by some people, then the mere fact that they had failed to object - or even that they had initiated similar themselves - would not protect against claims of SH.
Slight aside - I think you were aiming for “egregious” here. I like your new word, though - social people who just go too damned far. 
Of course it’s OK to say to a fellow employee, “I think you have gone too far.” When you are ready to use the word harassment it’s time to call HR. The conversations these two people are have ARE the problem at that point so why continue them? HR should be able to help this person (you know, your friend) better understand the situation and could act as a mediator if there really is a correctable problem. That doesn’t mean that the C-W/non-F is going to be instantly fired, nor should it. It just brings in an impartial party to assess what is going on. I say impartial but remember that a business get in trouble for allowing this to go on.
Unfortunately notifying management may be disadvantageous for both parties. Any mark in an employees record will tend to follow them throughout their employment at that company. Even when the information is supposed to be confidential, it rarely is. In the cited case (assuming it has a factual basis), the OP is a non-affected party who already knows about the incidents. Most offices have a rumor mill, and I’ve personally heard HR personnel disclose confidential information. Added to that problem, companies frequently mis-handle these cases, either ignoring substantial problems, or over-reacting to insubstantial or non-existent problems.
Your phrase ‘When you are ready to use the word harassment’ highlights the major problem, harassment is a subjective measure. There isn’t any real argument for cases of sexual extortion such as ‘have sex me with or I’ll fire you’, but the OP makes no reference to disparity of power. The relationship between the workers is described as friendly and joking, but there is no mention of the offendee informing the offender about the offense. In this case, even the use of the term ‘crossed the line’ implies that their relationship brought them close to the line already. What small delta could turn friendship into harassment?
For actual cases of potential harassment, which don’t sound like the OPs, the best thing for the offendee to do is start a diary of incidents with names, places, and details of the entire encounter. If the offense can be interpreted as a joke, or a mistake, politely inform the person that you are uncomfortable with what they have done. Do not mention the incidents or your diary to co-workers. Seek outside advice based on your diary if the incidents continue, and if you can find disinterested people who agree with your interpretation of harassment, then contact the company management. Record those contacts in your diary as well. Make a copy of the diary to show management, don’t release the original except on the advice of a lawyer you are paying, or a court order.
If someone were doing something that I found offensive – such as massaging my shoulders or commenting on sexual matters – of course I would tell him to stop. It would seem ridiculous later if HR or my boss or his attorney asked me if I had told him not to do that.
I agree that some thing are obviously inappropriate. I would still make sure that I said something to the offender before I headed out the door on my way to report it.
The offending person is the one who is creating the hostile work environment and telling him (or her) to knock it off is appropriate.
This is not a legal opinion, but it is a logical and sane one. And I have been through the process.
[moderating]
Let’s dial back the aggression. This is out-of-place in GQ.
[/moderating]
If I genuinely felt I was the victim of sexual harassment, I would not contact HR first. Yes, I know that HR tells you to contact them first. But that is not what I would do; HR will pretend to be your ally, but in reality they only exist to protect the company from lawsuits. I would first contact a lawyer.