Where's the line on sexual harassment?
Expert panel clears up questions regarding harassment in the workplace
Being able to identify and prevent sexual harassment, especially in today’s hyper-vigilant society, is more important than ever, and a full room of employers, employees and HR specialists got a great inside view into how sexual harassment complaints are logged, investigated and ultimately decided upon during the Rhode Island League of Cities and Towns 18th annual convention at the Crowne Plaza in Warwick.
Marissa Janton, legal counsel for the Rhode Island Commission for Human Rights and Tina Christy, the Senior Compliance Officer for the Commission for Human Rights, shared their experience and guided attendees through an in-depth discussion on how employers can protect themselves – and their employees – from committing or being accused of sexual harassment.
“Sexual harassment is unwanted behavior, sexual advances or requests for sexual favors or other physical or verbal conduct of a sexual nature,” Christy said with practiced recital. “And this constitutes sexual harassment when submission to such conduct is used either explicitly or implicitly as a term or condition of an individual's employment; if submission of such conduct is used as the basis of making employment decisions affecting that individual or if the sexual behavior has the purpose or effect of unreasonably interfering with an individual's work performance or creating and intimating a hostile work environment.”
Christy admitted that the legal definition of harassment was complex in its depth, however the underlying message is relatively clear. Sexual conduct of any measure is not appropriate for the workplace. Even if you don’t feel as though you’ve crossed a line – it isn’t as simple as considering your own opinion anymore. The opinions of your coworkers and subordinates matter, too.
To illustrate how seemingly innocuous actions in the workplace – which some might consider to be harmless – could be brought forward as legitimate complaints with the Commission, Christy passed out a sheet of paper with a large header, “Risky Behavior,” and a list of questions underneath.
Included on the list, asking whether “Is it a mistake to…”, were situations including hugging a colleague you haven’t seen in a while; putting your arm around a crying coworker; talking to coworkers about sex behind closed doors; telling a coworker “that suit looks great on you”; and rewarding a subordinate with dinner.
Discussion abounded around each topic, with people falling on either side given specific variables of each situation. Was the hug reiterated? Did the coworker clearly need to be consoled? What if nobody else but your participating coworkers heard the dirty talk?
“I think it is [a mistake to hug] in this environment,” said one older man, sounding exacerbated. “It's the climate...I'm just saying.”
“I rarely touch anybody,” said another older man. “The most I'll do is shake hands. As you said, it's other peoples' perception, and you can never tell the day, the time, what other people are thinking so why take the chance?”
The first man who spoke went on to say that a friend of his wouldn’t even take change from a cashier’s hand, worried that it might be perceived as inappropriate touching.
While the answer revealed to be clear about the questionnaire – that each action, no matter the intention, could be perceived as sexual harassment by somebody – the panelists tried to explain that avoiding sexual harassment didn’t require turning into a robot, rather it simply required stopping and thinking about the feelings of others before acting or doing something.
“In a perfect world, everyone in employment would behave appropriately and everyone would perceive everyone as not doing anything inappropriate but that's a perfect world,” Christy said. “In reality, there are people who take advantage of these situations and there are people who do give out hugs and put their arms around people and rub shoulders and the people receiving that do not want it.”
Janton spoke about how television shows and movies – such as the popular sitcom The Office, with its raunchy and purposefully politically incorrect caricature protagonist Michael Scott – has essentially normalized certain types of sexual harassment in the workplace; especially verbal harassment.
“It's been normalized to a point where people might not even realize it might offend people,” she said. “[Avoiding harassment] is really just about trying to rethink how you think. It's not about us coming here and dictating who is doing something wrong.”
Christy brought up how some might believe that telling raunchy jokes in the lunchroom isn’t harassment because, if another coworker is offended, they can simply not listen to the jokes or go elsewhere. To get offended in that instance is their fault, right?
“Actually, it's not. It's the people talking about sex,” she said. “We have the right in Rhode Island, under state and federal law, to work in a hostile-free work environment. Free from harassment and other types of discrimination.”
That state law, the Fair Employment Practices Act (FEPA, covers employees who work for companies with four or more employees. The FEPA also protects people who file complaints from being fired in retaliation by their employers.
People can file complaints through the commission within 365 days of the last instance of sexual harassment. Janton and Christy said that complaints should be brought up with the offending party first, letting them know their behavior is offensive. If that doesn’t work, a complaint should be filed through the company’s internal complaint system first.
If the behavior still does not stop, the complainant can go directly to the commission, where they will launch an investigation that will result in either finding cause for the complaint, no cause, or they will reach a settlement between the parties.
Investigations put forth by the commission are neutral and based on evidence. They utilize the Reasonable Person Standard in investigations – meaning that the gentleman’s example mentioned earlier about being scared to simply take change from someone’s hands could never be realistically considered harassment (unless maybe you happened to make a derogatory sexual remark or gesture while taking the change).
Christy said, in response to a question about people fearing false claims of sexual harassment being used to ruin lives and careers, that she has not seen such a situation with any regular occurrence in over 20 years of investigations. She said that about an even 25 percent of cases split between finding cause, finding no cause, settling the matter civilly or result in an administrative closure.
“I think that, generally speaking, if a person doesn’t have evidence to support that they have been sexually harassed or discriminated against, then there is going to be a finding of no probably cause,” she said. “I have never heard someone call the commission and say, 'This false accusation of sexual harassment has ruined my life.'”
Janton reiterated the point that sexual harassment cases are not taken lightly, nor do the investigators simply believe a complainant without a thorough investigation. She also said that commission complaints are not public record, so someone accused of sexual harassment will not be publicly put on trial.
“Our investigators take this very seriously. This is not something anybody takes lightly,” she said. “Sometimes people get aggravated because the process takes so long. We recognize that this is somebody's life.”