How Can You Tell if Conduct is Unwelcome?
Only unwelcome conduct can be sexual harassment. Consensual dating, joking, and touching, for example, are not harassment if they are welcomed by the persons involved.
Conduct is unwelcome if the recipient did not initiate it and regards it as offensive. Some workplace sexual advances (“come here Babe and give me some of that”) are so crude and blatant that the advance itself shows its unwelcomeness. In a more typical case, however, the welcomeness of the conduct will depend on the recipient’s reaction to it.
The clearest case is when an employee tells a potential harasser that conduct is unwelcome and makes the employee uncomfortable. It is very difficult for a harasser to explain away offensive conduct by saying, “She said no, but I know that she really meant yes.” A second-best approach is for the offended employee to consistently refuse to participate in the unwelcome conduct. A woman who shakes her head “no” and walks away when asked for a date has made her response clear.
Matters are more complicated when an offended employee fails to communicate clearly. All of us, for reasons of politeness, fear, or indecision, sometimes fail to make our true feelings known. A woman asked out for a “romantic” dinner by her boss may say, “Not tonight, I have a previous commitment” when what she really means is “no way, not ever.” The invitation is not inherently offensive, and the response leaves open to question whether the conduct was truly unwelcome.
Sexual relationships at work often raise difficult issues as to whether continuing sexual advances are welcome. Employees have the right to end such relationships at any time without fear of retaliation on the job, so that conduct that once was welcome is now unwelcome. However, because of the previous relationship, it is important that the unwelcomeness of further sexual advances be made very clear.
What Not To Do
- Invited the alleged harasser to lunch or dinner or to parties after the supposedly offensive conduct occurred;
- Flirted with the alleged harasser;
- Wore sexually provocative clothing and used sexual mannerisms around the alleged harasser; and
- Participated with other in vulgar language and sexual horseplay in the workplace.
For these reasons, if you find gender-based conduct or sexually oriented conduct offensive, you should make your displeasure clearly and promptly known. Remember that some offenders may be unaware of how their actions are being perceived. Others may be insensitive to the reactions of fellow workers. Tell the harasser that the behavior is not acceptable and is unwelcomed by you. At the very least, refuse to participate in the behavior.
Even if you do not find the conduct personally offensive, remember that some of your co-workers might, and avoid behavior that is in any way demeaning on the basis of gender. In determining if your own conduct might be unwelcome, ask yourself these questions:
- Would my behavior change if someone from my family was in the room?
- Would I want someone from my family to be treated this way?
You and your employer share a steak in maintaining a harassment-free work environment. Many organizations have written policies, distributed to all employees, that contain examples, that contain examples of prohibited conduct and describe procedures for handling complaints. These policies may forbid conduct that falls short of unlawful sexual harassment. It’s important to learn about your own employer’s policy.
Retaliation against any employee who reports workplace sexual harassment or who cooperates when the employer investigates a claim of sexual harassment is prohibited. The employer will want to conduct a prompt and thorough investigation of all complaints, and matters will be kept as confidential as possible.
Employer policies typically provide that any employee found to have violated the policy will be subject to discipline, up to and including immediate discharge, and that the complaining employee will be told whether action has been taken, even if not told specifically what was done.
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