I was at an event the other night and the conversation turned to the big news of late: sexual harassment. One of the men at my table, fairly heatedly, started lamenting the fact that everything was wrong now: you could no longer hug women at work; if you told a woman she looked good, you were going to get fired; etc, etc. There was a lot of pointing and loudness. He suggested that women were looking forward to pointing the finger and screaming “harassment” upon receiving a compliment. You get the idea.
The woman next to me and I shared a look of understanding and excused ourselves to get some dessert. Apparently, he got the message and loudly attempted to qualify his remarks: “Well of course I'm not talking about Matt Lauer or Harvey Weinstein – those guys are predators. What they did is bad.”
I recently spoke to News Channel 13 about sexual harassment when the Matt Lauer story came out. It didn't make it onto the broadcast, but I was asked for a response to those who feel that this movement is going too far in the opposite direction and people are going to be afraid to do anything at work. These are my thoughts on that:
Lamenting About Political Correctness is a Distraction So that We Don't Have to Deal with the Real Problem. So, instead of focusing on the inappropriate and often illegal conduct that usually women (but sometimes men too) receive in the workplace, we are worrying that some people might be feeling a little uncomfortable. Personally, I think we should be more worried about how uncomfortable employees feel when their boss exposes himself to them. Or touches them sexually. Or relentlessly asks them out and won't take no for an answer.
When we worry about things like, “oh, now I can't tell someone he or she looks nice today” we are willfully ignoring the real problem so that we can lament about political correctness. First of all, I'm not aware of any story in the news right now where anyone was fired or taken to task for paying someone a compliment. If someone cares enough about this issue to write an online comment about political correctness, it would be nice if they educated themselves about the allegations people are actually making. The recent Time Magazine 2017 Person of the Year article is a good place to start. The magazine profiled various women, and some men, and what they have been through and, trust me, no one is being over sensitive or getting upset about a compliment or a hug.
Now I Can't Hug Anyone. I also noticed that suddenly everyone loves hugs. Some people are very concerned that they can't hug you at work. As a hugger myself as well as an employment lawyer, I can tell you that a little hug here and there is unlikely to get anyone in trouble. Are there inappropriate, groping, unwanted, never-ending hugs? Sure. Are there people who will not give it up even if you tell them you are uncomfortable receiving a hug? Yes. If those are the kinds of hugs you're into, then don't do it.
When in doubt? HANDSHAKE.
What is Really Sexual Harassment Under the Law. [Update: since the original publishing of this article, the New York State Human Rights law loosened the "severe and pervasive" standard. However, this remains the standard under federal law and the case cited below.]. So, finally, for those like the guy I was sitting with, who are worried they “can't do anything”, rest assured, there is a legal definition of a hostile work environment and it's not just “anything.” Instead, it's when “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Moll v. Telesector Resources Group, 760 F.3d 198 (2d Cir. 2016). Sexual harassment also encompasses “quid pro quo”, meaning a request for sexual favors in return for continued employment or advancement.
“Severe and pervasive” is not an especially easy standard to meet and most employees receiving an isolated inappropriate comment would not be well served to quit their jobs and sue expecting legal recourse. And if the inappropriate conduct is actually assault, or unwanted touching, or demanding sexual favors for continued employment or promotion, then I think even those worried about political correctness can get on board with discipline, including termination, of the perpetrator.
It is and has always been possible that you could be accused of something and get fired even though your conduct was not technically illegal or even inappropriate. But that, historically, has not been the problem. The problem has been that perpetrators of truly egregious harassment and assault have gone totally unpunished. That is the issue we are distracting from when we focus on political correctness.
From my perspective, the hope of this movement is not that every person who does something even slightly inappropriate will resign or be fired or publicly shamed. The hope is that employers will foster an appropriate working environment where employees feel comfortable not only reporting illegal or inappropriate conduct but telling a coworker or superior that their actions are inappropriate or unwanted, without fear of retaliation. And the appropriate recourse is not always going to be termination. It could be a conversation with HR. It could be a warning. It could be nothing, depending on the outcome of an investigation. And, where the conduct does constitute assault or harassment, then we want to see appropriate action being taken instead of protecting serial harassers as we have often done in the past.
If you feel you have been the victim of sexual harassment or sex discrimination in the workplace, give us a call. We are happy to help. And if you are an employee who is worried about what is and is not appropriate in the workplace, you can give us a call too. Or you can consult your employee handbook or HR about the appropriate course of conduct.
