- Blog post
Not-So-Obvious Sexual Harassment
We all know there are two kinds of harassment. But which is the trickiest for HR folks to deal with?
A. Quid-pro quo
B. Hostile environment
The answer is B. Quid-pro-quo harassment is usually pretty straightforward. The term literally means “one thing for another” and QPQ harassment generally involves a manager crossing a well-defined line — for example, promising some benefit to a specific employee in exchange for sexual favors.
But hostile environment harassment can be REALLY tricky. How, for example, do you define “hostile”? If two males are telling dirty jokes that clearly target a specific female … well, that would almost certainly create a hostile work environment.
But what if two guys are telling offensive jokes privately in the lunch room and a woman seated two tables away happens to overhear them? In today’s world, plaintiff’s lawyers could spin that into a hostile environment case.
How do the courts wrestle with these “not-so-obvious” cases? They’ve come up with what’s called the “reasonable person test.” They ask, “Might a ‘reasonable person’ be offended by the language or behavior in question?” If the answer is yes, they’ll likely rule that hostile environment harassment has occurred.
Which, of course, begs the question: Who is a reasonable person? You? The person who complained? The guys who “didn’t mean anything” with their crude comments? In close cases, we’d suggest giving the benefit of the doubt to the person who complained — and not just to protect yourself in court. A workplace can’t be effective unless people feel safe from harassment.
You might not want to impose discipline if there was no intent to offend. But — absent any evidence that the complainant is UNreasonable — it’s best to put a stop to any such behavior going forward. After all, it’s a pretty big step for someone to actually speak up. And if one person speaks up, there’s a good chance others are feeling the same way too.