13 ‘Nondefenses’ to Workplace Harassment
Make sure your supervisors know which arguments won’t fly within your
company—or in a courtroom.
Supervisors may not share with you all the misconceptions they hold
when they sit through anti-harassment
training, but that doesn’t mean that
erroneous beliefs aren’t lurking. When
educating your workforce on unwelcome conduct based on race, color, sex
and other protected factors, there are 13
“nondefenses” you should cover. Each
is a common, but unacceptable, justification for harassing conduct, even if
the behavior isn’t necessarily unlawful.
Which brings me to No. 1 …
1. The conduct was not unlawful.
Don’t wait for the harassing behavior to
become severe or pervasive enough to be
An employer’s policies and practices
must prohibit any conduct that the organization considers unacceptable—such
as “sexually explicit, sexually suggestive
or otherwise inappropriate comments on
appearance”—even if the behavior is not
Hit this point hard in supervisor training. Refer to harassing behavior as unacceptable conduct rather than unlawful
2. There was no bad intent. The law
is clear on this: Individuals do not need
to intentionally make someone uncomfortable for the behavior to be considered
unacceptable or illegal. Be clear that just
because an employee lacks ill will, it does
not mean that his or her behavior is OK.
3. It was only a joke. It doesn’t
matter if something was supposed to be
funny. Jokes of a harassing nature can
be as invidious as direct slurs. Moreover, there is plenty of room for humor
at work that doesn’t involve making fun
of someone’s race, gender or religion.
People who can’t understand this probably should not joke at all.
4. The employee never complained
before. Irrelevant. Indeed, individuals
often wait until there is a pattern that
makes them uncomfortable before making a complaint—and that approach is
perfectly acceptable. Supervisors should
not assume that the absence of an early
grievance means a later one lacks merit.
The same admonition applies to HR.
5. The harasser is a top performer.
That may very well be the case. In fact,
the Equal Employment Opportunity
Commission (EEOC) has stated that
employers are more likely to ignore or
discount the significance of bad behavior when the person engaging in it is a top
leader or strong contributor to the organization. However, whether individuals
achieve their status by position or performance, those in power should not be coddled; to the contrary, they must be held to
a higher standard than other employees.
6. The conduct occurred offsite or
off-the-clock. Actionable claims against
employers are not limited to the work-
place. The employer can be held liable
for harassment that occurs at company-
sponsored social events, for example, and
in other contexts wholly independent of
work, such as if a supervisor calls a subor-
dinate at home and asks him or her for sex.
When we talk about harassment, we
are talking about relationships, which
are not limited to one physical location.
Make that point clear in your training.
7. The harasser is an equal opportunity abuser. Some employers will
claim that if a manager abuses everyone,
any hostility directed toward a protected
group doesn’t matter. This is not only a
hideous defense—it hardly makes a company an employer of choice—but also
often an unsuccessful one. The EEOC
and courts scrutinize both the quantity and quality of the abuse to discern
whether the harasser is truly an equal
opportunity abuser; even the slightest discrepancy that tilts the balance toward a
protected group could spell legal trouble.
8. The conduct was not sexual or
racial in nature. Sexual harassment
does not need to be sexual. Nor is racial
harassment required to be racial.
Simply treating someone in a hostile
way because of his or her membership
in a protected group can be unlawful
By Jonathan A. Segal