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Nov 15, 2010

Finding the line between social banter and verbal sexual harassment

Some parts of sexual harassment — physical touching, malicious language — are obvious. But some of it is murky and subjective
    

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

There are some things employers don’t want to hear in relation to their workplace, and one of them is the phrase “sexual harassment.”

If this comes into play in the context of the workplace, it can open a can of worms. If an employer has an inkling it’s happening, it’s wise to act quickly and decisively to avoid liability, not to mention damage to productivity and employee engagement that can come from a poisoned work environment.

The problem with sexual harassment is that, while certain aspects of it may seem obvious, like physical touching or malicious language, some of it can be subjective. If a workplace is casual and co-workers are comfortable with each other, there could be some good-natured teasing and verbal comments. But in another workplace, the same comments could be unwanted and their perception different.

Human rights legislation offers similar definitions for harassment. For example, the Ontario Human Rights Code defines harassment as “engaging in a course of vexatious conduct or comment that is known or are reasonably to be known to be unwelcome.” But “reasonably to be known” can require some interpretation.

Things can get murky if an employee seems to accept certain conduct, like sexual comments and teasing, but then suddenly files a complaint. If the accused is a supervisor or someone in a position of power over the complaining employee, it’s probably safe for an employer to take the position the accused should reasonably have known the behaviour was inappropriate, even if the complainant seemed to go along with it. However, if the employees are colleagues on even ground, how serious should the discipline be? Or should there be any?

Let’s say some co-workers engage in sexually-charged conversations and talk about personal aspects of their lives. One honestly believes he’s engaging in friendly banter. The other participates but doesn’t let on she’s uncomfortable with it. If the second employee doesn’t indicate her discomfort and the first genuinely thinks things are fine, should he be disciplined if the second employee eventually does complain to the employer without asking him to stop first?

There was a case earlier this year where a supervisor was fired for making sexual comments and sending texts to subordinate employees over several years. Though the employees sometimes participated before the complaint was filed, the arbitrator agreed the supervisor’s behaviour was “reprehensible” due to his position of power and the obvious inappropriateness of his actions, but reinstated him — albeit with a suspension and demotion — because the harassment “did not venture into the more egregious forms of sexual misconduct” and remained simply verbal.

The employer saw a serious pattern of sexual harassment of younger, subordinate employees, but it turned out it wasn’t serious enough to terminate his employment, even though he couldn’t be trusted in his old job.

So how does an employer handle a case of sexual harassment? Like many things, each situation depends on subjective factors and sometimes the solution isn’t always obvious.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com. Follow Canadian HR Reporter on Twitter at www.twitter.com/hrreporter and on Facebook at www.facebook.com/hrreporter.

    
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