9 Tips To Avoid Being A Sexual Harasser At Work

The workplace is not your frat house. No touching -- ever.

I wade into the subject of workplace sexual harassment at this time with trepidation — it is a particularly fraught subject in this cultural and political climate, where widespread and horrific sexual harassment charges have met sharp, strident denials and defenses.

Nonetheless, into it I wade, since it is probably the number one issue in employment law today, due in part to the sheer number of claims being made, the number and identity of the alleged harassers and victims, and the viral #MeToo campaign.

Nick Kristof reports in the New York Times this week that “a new ABC News/Washington Post poll found that 54 percent of American women report having received unwanted and inappropriate sexual advances — meaning that this is a huge national problem, and a challenge for us all.”  The typical workplace is not Hollywood or Washington, nor is the typical harasser or victim a celebrity.  As acting EEOC Chair Victoria Lipnic just remarked, “we see this everywhere.”  It truly is “a challenge for us all.”

So what is an employer to do?

Well, one ignores the issue at one’s peril.  Most blog posts and articles — indeed, most of my posts on the subject — have been written with employers in mind. You know the drill:  update and disseminate your anti-harassment policies and handbooks, conduct periodic anti-harassment training for both managers and employees, etc.

As my partner, Amy Epstein Gluck, was quoted recently in Business Insurance, it is important to have a “top-down culture of zero tolerance to keep the workplace free of any harassment. There’s no substitute for having that culture of equality and no tolerance for any kind [of harassment].  And it’s important not just women report it.”

All this is best practices and vitally necessary.

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But I want to address this post to those who want to or are tempted to cross the line into non-consensual words or physical contact, or who have no clue and blunder across it, or who don’t know that there is a line and where it is.  (I assume that those who are the really dangerous predators or seek to cause grievous harm will not read this post or be moved by it if they did).

Consensual versus non-consensual words or conduct is the touchstone, and as I have written before, I believe that power differential is key to understanding the reason(s) why harassers feel that they can get away with — and, indeed, typically get away with — harassment, as is borne out by the ever-multiplying recent headlines.  I wrote that:

“From farm to Valley, from medical school to morgue, and from diner to library, ‘particularly vulnerable’ employees are subjected to sexual harassment — ‘particularly vulnerable’ when those in ‘a position of power’ are able to ‘leverage’ that position to exploit them.”

And that means that virtually all of the harassment claims that have been asserted are against men, who, historically, have been in power positions vis a vis women — in the workplace and in society at large.

So the tips in this post on how not to be a harasser at work are therefore primarily addressed to men — all men in the workplace.  These tips are decidedly not cute or tongue in cheek, but straight up rules to follow, assuming that you can say, in good faith, that you do not want to be considered a sexual harasser.

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  1. The workplace is not your frat house — and even then, especially then, this stuff is no longer tolerated. Leave your frat behavior behind and don’t repeat it. I’m sure you know what I’m talking about.
  2. Don’t treat co-workers as friends, confidants, or potential dates. They are there to do a job — to make a career — to support a family.  Being friendly and supportive is one thing — and a good thing; but being “a friend” is a slippery slope that can land you into trouble.  Not easy — we are social beings — people are and want to be friendly, be social and to have friends — it makes life worth living.  There is no bright line between friendship and being “a friend” — although there certainly is a bright line when words or acts cross over into unwanted words/acts or felonious behavior. Use your best judgment.
  3. In the realm of personal relationships, one thing can lead to another, you may misread signals, you may have desires — conscious or otherwise. Know yourself and your motivations a little better and follow your “better angels.”
  4. I wrote here before about giving compliments at work: “A compliment is not a simple thing; think about what a compliment may be seen as or used for in the workplace, which is typically male-dominated. It may be meant as an innocent remark, or it may reflect the power differential between two people. Not so simple. …” I quoted Professor Bonita Meyersfeld, director of the Centre for Applied Legal Studies at Wits University, who said in Times Live of South Africa that “The line between a compliment and sexual harassment is a fine one and overstepping it might affect a company’s bottom line.” So: Don’t do it.  The stakes are too high!
  5. No ribald jokes or puns or risqué pics at work. No water cooler banter. I noted earlier that: “We all like to joke, tease, prank, and — face it — it sometimes gets a bit out of control, and the language gets a little ‘salty.’ All in good fun, in the right place and context.  But not in the workplace. Even by the water cooler.  The workplace is for work. Yes, we can do our best to try and enjoy our work, but the primary purpose is to make a living. And the employment discrimination laws are in place to ensure that we all get a fair shot, free of sexual harassment.”
  6. No teasing about someone’s weight, body, or clothes; sex; dating, etc.
  7. No touching — ever, anywhere, on any part of the body.
  8. No invitations to dinner, your hotel room, home (without a spouse or “chaperone” present), or even drinks — you do so at your peril.
  9. No “enabling.” If you see something say something.  This may be the most important tip for the majority of readers.

Takeaway

These come from two prior posts: “The bad news is that harassment and workplace bullying are ubiquitous.  The good news: there are initiatives being implemented worldwide by folks who feel empowered to do something about it, or at least to ‘speak up more.’”

“But in the end, it is up to individual employers and employees to prevent harassment, and to report it promptly if it occurs.”


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.