Excerpted from a Constangy Brooks Smith & Prophete LLP Blog by Robin Shea
Even if you didn’t do it.
The recent proposed Enforcement Guidance on Harassment in the Workplace published by the U.S. Equal Employment Opportunity Commission has some good recommendations for harassment training topics. One recommendation is to train employees to avoid “borderline” behavior that may not technically be unlawful but is close enough to put them at risk of either crossing that line, or being credibly accused of harassment.
What are the behaviors that, although legal, put you at risk? Here are my top five.
No. 5: Expressing opinions too freely at work. Opinions on the weather or the best place to go to lunch are one thing, but certain subjects are NSFW (Not Suitable for Work). Your opinions about these topics are best shared only with trusted personal friends and family members — away from the workplace. Twenty years ago, some dangerous subjects were affirmative action, immigration, and whether women should work outside the home. Nowadays you can add opinions about gender identity and nursing moms who work outside the home, to name a couple.
No. 4: Telling sexual, racial, ethnic jokes, but only to people who think they’re funny. You probably know that a valid harassment claim requires that the behavior be “unwelcome.” So you should be fine here, right? Because you’re making sure you tell your jokes only to co-workers who will slap their knees and laugh uproariously.
There are at least two problems with this. First, you never really know how someone will take a comment you make. You may think the co-workers you’re joking with will love your joke, but it’s possible that you were wrong. If your joke is unwelcome to one co-worker, then you have probably violated your employer’s harassment policy.
Second, what if a co-worker who isn’t part of your crowd overhears you? Or what if one of the co-workers who loved your joke repeats it to the wrong person? And what if you really mess up and put your joke in an email? An email that gets forwarded to a bunch of people you don’t even know, some of whom think your joke is offensive?
No. 3: Using words with sexual meanings. A female co-worker makes you mad, and so you call her a “b**ch” (or worse). Or a guy makes you mad, and you call him a “d**k.” Or you’re just mad at the world and shout, “F***!” If you get accused of sexual harassment for using words like these in this context, I will argue to the death that you are not guilty. In my opinion, in context, these are all just regular cuss words.
But who cares what I think? The problem with these words is they have sexual connotations, and there have been actual lawsuits in which people were accused of harassment for using words like these.
No. 2: Complimenting a co-worker on her appearance. If you’re a woman, and you’re complimenting another woman on her appearance, you may be ok. But if you’re a man who’s complimenting a woman on her appearance, you’re taking a chance. A lot will depend on what type of compliment it is, and the way you express yourself. “Whoa, Mama, you sure look hot to me!” is likely a problem.
The easiest way to avoid being accused of harassment is to not compliment co-workers on their appearance. If that’s too hard, then follow my “Zone of Safety Rule.” If you must compliment a woman, make sure it’s about something above her shoulders (“Nice earrings, Bella!”) or below her knees (“Love those Crocs with the Jibbitz charms, Katie!”). Pretend anything between the shoulders and knees doesn’t exist, no matter how pretty her blouse is.
No. 1: Having a consensual extramarital affair at work, and especially if you’re the boss. I’m assuming male boss and female subordinate because I’ve never seen it happen the other way around. It certainly could, though. In my years of representing employers in sexual harassment cases, this is THE #1 risky “legal” behavior that can get one partner to the affair accused of sexual harassment after the affair goes bad.
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