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harassment. Even in cases when such
behavior doesn’t rise to the level of illegality, it is wrong and counterproductive.
9. The harasser was a customer,
not an employee. If a manager sees,
hears or otherwise becomes aware of
harassing behavior by a nonemployee
with whom an employee interacts, he
or she is obliged to respond. That’s why
supervisor training must include “in the
moment” suggestions for how to react to
unacceptable conduct as it happens.
10. The harasser and harassment
target belong to the same protected
group. Individuals of a particular protected group can unlawfully harass members of the same group.
11. Alcohol made the harasser do
it. The EEOC lists alcohol as a risk fac-
tor that makes harassing behavior more
likely to occur. Blaming the conduct on
Jack Daniels or Jim Beam is never a via-
12. The harassment was not
unwelcome. The legal definition of
harassment includes the term “unwel-
come.” That said, the fact that someone
took part in the conduct about which they
complain does not necessarily mean he or
she welcomed it. While such participation
is a relevant factor in determining “wel-
comeness,” it is only one factor—and it
certainly does not mean that the behav-
ior was acceptable from an employer’s
Consider this example: If two
employees were having sex on a desk,
would you ask whether that conduct
was welcomed by one or both parties?
Of course not, because the behavior
is objectively unacceptable. The same
holds true when it comes to sexual
banter, racial “jokes” or the like.
13. The offended person was not
targeted. It is not necessary that harass-
ing behavior be directed at an individual
for him or her to make a viable com-
plaint. If someone witnesses or otherwise
becomes aware of an incident of harass-
ment, he or she may raise concerns. Think
of harassment like pollution. If it is in the
air that an employee breathes, he or she
has the right to speak up about it.
Spend time training your supervisors
to make sure they don’t use one of these
flawed rationales to defend indefensible
Jonathan A. Segal is a
partner at Duane Morris in
Philadelphia and New York
City. Follow him on Twitter