Questions about sexual harassment in the workplace..

Factual Questions
1

As always, this is a hypothetical, but I am having a debate with a friend, and we have a couple of questions:

  1. For it to be sexual harassment, does one person have to be in a position of power over the other, as in supervisor/supervisee?

I would think no, especially for continuing abuses, which leads to question 2.

  1. Does the “harassment” have to be continuous? In other words, if one employee says to another, “Gee, honey, I would love to have those beautiful breasts all over my face.” and employee #2 gets offended, is this automatically harassment? What if employee #1 immediately says that he is sorry she is offended and that he will not discuss anything of a sexual nature with her in the future, and in fact, does not? I guess in even simpler words, does the harassment have to be after notification that someone is not interested yet it still persists? Is there any “one-time” comment that can be so outrageous as to make it harassment from step one?

  2. Under what standard is it judged whether a comment is considered offensive? A reasonable person standard? A subjective “that individual” standard? A Roman Catholic Nun standard? A crack whore standard?

Thanks in advance.

2

Question 1: No any employee can be guilty of harassing another.

Question 2: One time can get the harassing employee into trouble.

Question 3: The standard is subjective. I know a man who got writtten up for commenting on a new hair do by a female employee.

3

IANAL…but…
I agree with **Snnipe[/B’s answer. All three large companies I’ve worked at (10k - 100k employees) have clear policy against sexual harassment, and provide training on it. Here is what they teach their employees:

Anyone can be in violation of the rules against anyone, regardless of reporting relationship, sex, sexual orientation, intention, or duration. Within limits, harassment is in the mind of the person being harassed. You probably won’t be found in violation if your comment is clearly not bad by virtually all standards (“He said GOOD MORNING to me!”).

Also note that you can be in violation of harassment rules due to a third party overhearing your conversation. You might be quietly whispering to a friend at work about what a great body someone you saw at a night club has…and a co-worker might find that uncomfortable.

-D/a

4

Something similar to this has happened in the past to me. I called a co-worker a bitch behind her back and she reported me after overhearing it. I got a 3 day suspension even though my superiors thought it was stupid and agreed she was a bitch.

5

And it can be “in the eye of the beholder” type thing making the violation subjective even if someone is being completely unreasonable.

Way back in 1993 I was on a break and making a phone call to another officer at my desk inside the patrol bureau office. There wasn’t anyone else in that office and the other officer I was talking to was at home off duty. Our conversion was we were concerned that another officer was having some personal problems. I said “Dons just been acting kind of queer, lately”. I guess I should have said “Dons just been acting kind of peculiar, lately” because a Lieutenant across the hall tore out of his office and stormed into mine and began chewing my ass something fierce for using the word “queer”. He screamed and bitched that if someone had heard me make such a homophobic statement we’d be liable for sexual harassment lawsuits, complaints from the public, and so on. It’s not like anyone else had heard what I said, but I’m sure lots of people heard him screaming and yelling!:rolleyes:

When I insisted that the word queer was a perfectly acceptable word to indicate something odd or different, he screamed "NOT AS LONG AS I AM YOUR SUPERIOR IT ISN’T! There were no written policies about use of such words that I knew of.

I then said “Lt., had I intended to use an anti-gay slur I would have said Dons been acting like a fag, lately!”. This really set him off and he stormed back to his office and wrote the whole thing up on the official form. The next day he gave the complaint to the Captain who read it and then tore it up in front of the Lieutenant and told him to get some real work done.

And that was the end of that.

Oh, except that the other officer was still on the line while I was getting screamed at. After the Lt left our office area the first words I heard on the phone was “What…a…fucking…asshole…that guy is!”. I concurred.

6

Thanks for the answers, but I can’t imagine a subjective standard being applied. You have to comport yourself so that your conduct won’t offended even an insanely, maniacal prude for fear of losing your job?

ETA: No other area of law is like this. Every other area would apply an objective standard.

7

When such things come up in court, a “reasonable” person’s judgement is what the judge or jury is supposed to consider. Same thing in negligence or abuse…reasonable, customary, prudent etc.

So would a “reasonable” person think that “Good Morning, Nancy!” was an example of sexual harassment? Probably not, unless it was accompanied by a leer, a gesture or only said to one person with whom the speaker had a history of some sort while everyone else was ignored.

It’s someone in HR’s job to determine what “reasonable” is, or what a judge or jury would likely think, if the case were to go to court. You can see why they would probably be a shade more conservative than you or I - if it does go to court, they want to be able to show they addressed the issue appropriately.

8

In my experience there is a subjective standard- but only for repeated behavior. For example, at my employer, commenting about someone’s new hairstyle in and of itself wouldn’t be considered harassment the first time. If, the after the comment, the woman told the commenter that she did not want him to comment on her appearance and he continued to make such comments, then it might be considered sexual harassment. There are indeed one-time comments and behaviors that are so outrageous that a single incident can be harassment , but those don’t depend on a subjective standard.

9

Well,there is the law, and there’s what an overly-sensitive lawsuit-phobic HR department will SAY the law is at their company.

They have a lot to lose if a hypersensitive moron makes a halfway compelling case in court, or even a mildly sensational case to the media. Your career at that company or any future company is meaningless to them compared to their fear of the sensational case against them.

Remember that the company is strictly liable for all your behavior. All they can do to you is fire you. But they can be sued for millions by the self-appointed victim. Or so they believe.

You’d like to think that most companies in most cases will apply a reasonable person standard, and give any actual offender one free bite before applying euthansia, just like we do with pit bulls.

But not always. A central corporate HR staff whose sole goal is to avoid controversy & protect the company from the enemy, i.e. their own employees, won’t see things that way.

Smaller companies *might *be more reasonable.

10

It goes both ways - if a company decides that you are a liability or just flat no longer wanted, they can fire you for whatever reason they decide to trump up and have very little fear that you will have the money to sue them for false termination. So IMO the answer to the question is sexual harassment is whatever the company decides it is, and that decision will depend on who is doing it or to whom.

11

I am amazed at some of the stuff I’ve seen over the years that has been construed as sexual or other forms of harassment over my career, and how easily some people fly off the handle over anything. This can be sexual, racial, or anything else. In the U.S., if anyone brings the matter to HR, they have to deal with it, or else the company opens themselves up to liability, especially if the claim is legitimate and they did nothing to stop future instances of it.

Many years ago when I worked in research, I will never forget one woman in our lab who flew off the handle at everything including things that had nothing to do with her. One day this affected even me. I was speaking with a black co-worker about the show Beverly Hills 90210 (when that was on the air) about the realism of an episode that had aired the night before. We had both watched the episode where the main character, who is having sex with a very attractive older woman, dumps her because she made a mildly racist and mildly antisemitic remark in the show. IIRC it was because the character had to probably work harder because his boss was black and therefore, probably lazy, and that the Jewish co-worker didn’t have to work because all Jews are rich. While we both agreed the remarks were inappropriate, we were debating whether they were enough to make an other immature (and lucky) high school kid break off a torrid relationship with a very attractive older woman he was clearly otherwise infatuated with. It was a nothing conversation, and neither of us thought anything of it.

Well, apparently this gal overheard the conversation, completely misconstrued it, and told HR that I was telling the black co-worker that I was a racist. HR, of course pulled us both aside when we got back from lunch (because as a racist, I apparently always go to lunch with people I hate :rolleyes:), and questioned us about it. At first we didn’t even know what they were talking about, and when we found out it had to do with the Beverly Hills 90210 episode, we both laughed as we were more embarrassed they found out we watched the show. HR was not laughing and took this deadly serious. Naturally we found out it was this same busybody women who busted us, and neither of us could believe that she didn’t even bother to speak to either of us first before reporting this. Needless to say, she didn’t last long in our lab, and here was a case where this person was prepared to destroy my career over something she thought she heard. What’s scary is, had this black co-worker had a beef with me, he could have gotten me fired on the spot if he had gone along with it. Lucky for me, we were buddies and he was an honest guy anyway, but this started my long lasting distrust off all things HR in the world…

12

This is dependent on jurisdiction. In my jurisdiction, for example, anybody can launch a human rights complaint through the provincial human rights commission at no cost to them (except for expenses, of course). Sexual harassment qualifies as a complaint that can be prosecuted.

However, if the person chooses to prosecute through the courts based on wrongful dismissal, for whatever reason, they may choose to engage a lawyer, who will generally cost. Still, it can be worth it–I’ve represented clients who have been very happy with their settlements/judgments, even after my fees have been deducted. Of course, such complainants can always use the provincial employment standards board, which will get them the minimum settlement they are permitted under the applicable statute. Again, it doesn’t cost them, but they only get the minimum.

If is is a wrongful dismissal based on a human rights violation, then anything goes. A lawyer can help; but while he or she is not absolutely necessary, a lawyer can often help get a larger settlement than the plaintiff could on their own. It is important to remember, though, that the human rights tribunal does not necessarily follow the common law in establishing wrongful dismissal settlements. It can be a gamble, but to the client of modest means, often an attractive one.

In short, there can be a number of options open to the complainant, depending on jurisdiction. There is no “one size fits all” answer to this question. Best thing for the OP’s complainant to do is to consult with a lawyer in the applicable jurisdiction, in order to understand just what his or her options are in this situation.

13

Sexual harassment is divided into two parts usually. The first kind is called Quid Pro Quo (roughly meaning “something for something”) and the second kind is "creating a hostile working environment.

The first kind usually results in no warning and immediate dismissal. The second kind (which may not even involve sex, but falls under that umbrella) results in warnings first.

Quid Pro Quo sexual harassment, can be a subordinate harassing a manager. It can be anyone, a vendor, a customer, a guest, a third party contractor.

Quid Pro Quo sexual harassment also contains the terms “No means no.” This means one attempt isn’t sexual harassment but “No” is the key word. If I say “Hi, would you like to go out on a date?” That is not sexual harassment. If the person say “No, I’d wouldn’t” at this point, “No MEANS no” and any further attempts to ask out the person on a date would result in quid pro quo sexual harassment.

The second part of sexual harassment is “creating a hostile working environment.” As you can see that may or may not involve sex, but comes under that umbrella.

The phrase "“Gee, honey, I would love to have those beautiful breasts all over my face.” falls under the “creating a hostile working environment,” part as there’s no direct offer of quid pro quo or “Something for something.”

Creating a hostile working environment is a difficult thing as it is wide open to interpretation. For example posting the ten commandments at a PBX station to inspire you may be creating a hostile working environment, as a PBX is likely to be viewed by everyone in the workplace. But if you are a manager with a private office that no one should be in, then you’d be allowed to do this.

So you can see rules DO vary. The same way some employees can be required to wear a uniform, and others can wear what they’d want.

I can give you a good example. I used to work in a hotel. I work out a lot and have a great body. I would come to work after they gym and I’d be wearing a tank top and shorts and go in the locker room and chage. H/R told me to stop this. I asked why, I said, “Other people where tank tops and shorts and change at the hotel.” The H/R director said, “Yes Mark, but not with the same results.”

Basically it was causing talk, so I just switched to sweat pants and a long sleeved shirt when I worked out and came over to change.

You have to fully understand a HOSTILE working environment is not the same thing as an unpleasent working environment. You can be surrounded by unpleasent people and that doesn’t make it hostile. A hostile working environment is one that actively makes it nearly impossible for you to do your job.

A third portion that comes under sexual harassment is a manager/supervisor duty to report things. If they see something that is quid pro quo or creating a hostile working environment, employees in managerial or supervisory roles have an obligation to report this, or their company may be found liable.

Employees without managerial or supervisory roles do not have a duty to report it, but they are encouraged to do so.

14

To the best of my knowledge there is no such thing as “false termination” so any such suit is not likely to go far, regardless of how much money you have.

This is incorrect.

What is true is that if your environment is hostile to the point of being unbearable because all the people around you are jerks, you’re out of luck. If your environment is unpleasant because some guy makes an occasional suggestive remark, you can sue for big bucks.

This is because there happens to be a law covering the second situation and not the first.

15

curlcoat is in Canada where they have a different set of laws and terms. I believe the US equivalent would be wrongful termination.

16

Unless you have some sort of employment contract (either union or as an individual) you are generally not going to get far suing for wrongful termination just because the employer fired you for an invalid reason.

17

I guess that proved it. Yeah I said it!

18

Slight hijack, but let’s straighten a couple of things out.

I thought curlcoat was in California. At any rate, the correct Canadian term is “wrongful dismissal,” and it is actionable.

This is the case in Canada. As I said about a year and a half ago in this thread:

19

I’m in the US so I don’t know if this applies.

You are saying that an employer can fire a person any way they like, even if it is due to lies, evasion, etc?

I’m in the US. Is Fotheringay-Phipps simply saying I used the wrong term?

Are you an attorney?

20

I’m not sure what you mean by “any way they like”. For any reason, yes (subject to contract terms, as above). If they don’t like your nose, no problem, you’re out the door.

See: At-will employment - Wikipedia

No.