BOORISH BEHAVIOR OR ACTIONABLE SEXUAL HARASSMENT: WHAT TO DO WHERE TO GO?
Employers are required to publish and train on a sexual harassment policy, and to tell their employees how to make complaints, and who to go to for help. Such a policy is required by the courts to protect employees. It may also protect employers from liability. Employees are charged under the law with using complaint procedures they reasonably know about and understand. Employers are not expected to guarantee employees will never encounter an off color joke, a one- time shoulder or bottom pat, the occasional uninvited neck massage, or even the crude sexually benign comment. However, if they are to protect themselves against liability, employers must show they have taken constructive steps to educate their workplaces and protect against such things. If this is news to you, and you are being treated to unwelcome sexually explicit behavior in the workplace, or hostility because of gender, you need to gain a better understanding of your rights; fast! Human resources professionals with limited legal experience and knowledge often fall short in ensuring employees understand their rights to be protected from harassing sexual behavior, and protected from retaliation should they complain.
Offensive behavior is treated differently in the eyes of the law depending upon whether the conduct is “boorish” and ungentlemanly, or sufficiently sexually offensive to constitute sexual harassment. It is important to distinguish whether the harasser is a “co-worker” or a “supervisor.” A supervisor’s sexual harassment may be actionable regardless of the company’s efforts to educate the rank and file. How to deal with the workplace “boor” shouldn’t be a troublesome question; even though boorish behavior is not viewed by the courts as sexual harassment. Courts have ruled that sexual harassment laws are not intended to be a “civility code for the American workplace.” Sexual harassment usually involves more seriously offensive behavior. Can boorish behavior create a risk of a sexual harassment lawsuit for the employer? Of course! Should employees complain about behavior even if it may be unfriendly or crass “macho” behavior? Absolutely! What should you do in the event no sexual harassment policy exists, and no one is available to receive a complaint; or worse, the only person to complain to is the harasser? What if, despite an existing policy and your use of available complaint procedures the sexual harassment continues or worsens? The answers to these questions are particularly challenging for the employee victim of sexual harassment. It never helps your legal position to shy away from complaint; or ignore what is illegal.
Your options become more difficult, and may include considering ending your employment if the behavior is perverse enough to force this decision upon you, or getting a lawyer, or both. According to Webster’s Dictionary a “boor” is a “rude” or “ill-mannered” person. You may have worked with many such cads. This is the person who rarely speaks without using an expletive, usually the “f” word; refers to women using derogatory terms and who thinks the double entendre is a laughing matter; the person known in the workplace to say embarrassing things about anatomy, clothing, or dating escapades. Do not dismiss such comments with a chuckle or “Oh, stop it!” Such behavior, if unwelcome, should be complained about. Sexual harassment takes a recurring or “severe” form. Federal law prohibits employers from discriminating “against any individual with respect to terms, conditions of employment because of the individual’s sex. This makes it illegal to mistreat in the workplace because you are a woman, and requires the affirmative steps discussed above. Courts have ruled that “when the workplace is permeated with discriminatory intimidation, ridicule, and insult [of a sexual nature] sufficiently severe or pervasive (constant) to alter the conditions of the employment, and create an abusive working environment,” rights are violated. Sexual harassment is unwelcome sexual behavior (comment, gesture, touching) in the workplace, including severe or relentless lewdness or sexually intimate touching or sexual assault which makes your ability to do your job impossible. The law provides remedies to compensate victims of sexual harassment for what they have lost economically or emotionally as a result of such conduct. These remedies include payment for lost wages and the value of lost benefits; loss of future income if you can’t find other work quickly paying the same wages/salary and benefits; and reimbursement for “non-economic” harm, such as the value a jury would assign your embarrassment, humiliation or emotional distress resulting from the sexually offensive behavior.
Eradicating every workplace sexual nuance is not what this law intends. Reforming the workplace “boor” is not the primary focus of these laws, but a byproduct! This law exists to protect you from severe or relentless sexually offensive behavior which you do not have to tolerate, and its purpose is to end such workplace conditions. More importantly, if you have been harmed financially or emotionally, this law ensures you have a forum within which to seek redress. Lawyers who specialize in this area of the law know how to help you.
© Jeffrey R. Elliott, Esquire