Risky Behaviors are Risky Business for Sexual Harassment Claims
By: Jody T. Walker, Esq., Stefani C Schwartz, Esq.
Sexual Harassment in the workplace is risky business. Partner Stefani Schwartz and Counsel Jody T. Walker discuss what the guidelines for Sexual Harassment are and how to recognize them. Many types of behaviors can lead to a sexual harassment suit. Learn how to identify what risky behaviors will put your company in jeaopardy.
What is Sexual Harassment?
Take a quick poll by asking what people would consider Sexual harassment? Ask around the office. Is it physical? Verbal? Body Language?
Sexual Harassment is…
- Form of discrimination based on sex. This applies to male, female, transgender, etc.
- Unwelcome sexual advances. No one likes to be groped
- Requests for sexual favors. There is absolutely no place where this is acceptable.
- Other verbal or physical conduct which unreasonably interferes with an individual’s work performance, or creates an abusive work environment. Remember, if it feels wrong, then it probably is.
Two basic types of sexual harassment
Quid Pro Quo Sexual Harassment. Otherwise known as “This for That” or “Put Out or Get Out.”
- Can be committed only by someone who can effectively take formal actions that will adversely affect the victim. (i.e., firing, demotion, denial of promotion). For example, supervisors, managers, officers, etc.
Hostile Work Environment
- The creation of an abusive work environment or interference with the employee’s work performance through words or deeds because of the victim’s gender. This can be described as the workplace not being “welcoming”.
- Unlike a quid pro quo, a hostile environment can result from the gender-based unwelcome conduct of supervisors, co-workers or anyone else with whom the victim interacts on the job.
What makes a Hostile Environment?
- Unwelcome conduct of a sexual nature.
- Creating an intimidating, offensive or disruptive work environment for some employees. Some examples are:
sexually explicit talk, e-mails or images
comments on physical attributes
there is a difference between a compliment and
unwanted “sleezy” remarks
inappropriate touching
What you learned in Kindergarten applies here: keep your hands to yourself, always.
Hostile Work Environment
Don’t look at an isolated event. Totality of the Circumstances: (look at the big picture, not single incidents)
- frequency of the conduct
- severity of the conduct
- physically threatening or humiliating conduct
- offensive utterance
- interference with an employee’s work performance
- Remember, being mean is not Illegal
The law is not a civility code, “a plaintiff is not entitled to a work environment free of annoyances and disagreeable colleagues.” Herman v. Coastal Corp., 348 N.J. Super. 1, 23, 791 A.2d 238 (App. Div.)
Risky Business, Risky Behaviors
There are many types of behaviors that can contribute to a Hostile Work Environment. Many types of gestures or comments can be included:
- derogatory comments
- crude or offensive language
- terms such as “honey,” “dear,” “sweetheart” and “babe”
- grunts, wolf whistles, catcalls, hoots and animal noises
- off-color jokes or jokes of a sexual nature
- discussing sexual activities
- requests for sexual favors or dates
- graphic descriptions of pornography
- obscene phone calls or e-mails
- staring
- looking up and down (elevator eyes)
- making derogatory gestures of a sexual nature
- giving sexually suggestive looks
- making facial expressions of a sexual nature (winking, licking lips, Etc.)
- invading a person’s space
- inappropriately touching a person or person’s clothing
- “accidentally” brushing sexual parts of the body
- indecent exposure, mooning or flashing
- uninvited neck or back massaging
- stalking
- grabbing
- kissing, hugging, patting, or stroking
- Sexually explicit posters, cartoons, calendars, computer graphics, or pictures
JUST BECAUSE YOU DON’T FIND IT OFFENSIVE DOESN’T MEAN OTHERS WONT.
Unwelcomeness: What does it mean?
- Most adults who pause to think about it can distinguish between what might be perceived as welcome and unwelcome behavior, especially if they think carefully about how others might react.
- There is an old saying: Would you treat your mom, sister or wife this way…?
- How would you feel if your son or daughter was treated in this manner?
- And alas, the golden rule “treat others how you would like to be treated”
How can you know in advance if a behavior is unwelcome? There are some general guidelines to avoid committing unwelcome behavior. Remember what you learned in Kindergarten? Here it is again:
- respect the people around you
- think before acting
- imagine how other people might be feeling
- be sensitive to cultural differences
- exercise common courtesy
- think twice before making a joke (any joke)
If you are unsure if something might be unwelcome, don’t do it. There is no risk in not doing something. If you are told to do something you don’t agree with, take it up with HR first before you act. To see what we can do for you and your company, please contact Stefani or Jody.