When it comes to sexual harassment, the devil is in the details. Asking someone out on a date or making friendly conversation isn’t usually sexual harassment. But telling the difference between what one court recently called a “tone deaf” suitor and a true harasser isn’t easy.
To help, courts have come up with a list of factors employers should consider when trying to determine whether an employee has been sexually harassed at work. They include:
- The physical environment where the complaining employee works
- The level of obscenity that fills that environment
- The nature of the unwelcome sexual words or sexual gestures
- The frequency of the offensive encounters
- The severity of the offensive encounters
- Whether the comments or gestures are physically threatening
- Whether the offensive conduct unreasonably interfered with the employee’s work
- Whether the offensive conduct had an effect on the employee’s psychological well-being.
Recent case: When Amelia Anastasia went to work for Citicorp, the man who hired her also supervised much of her work. Five years into the job, Anastasia had a business lunch with the supervisor. During their lunch, he confessed that he had a long-held romantic crush on her.
Anastasia brushed off his suggestion. Later that same day, he touched her arm while paying her a compliment. The next day, the supervisor asked her for a picture of herself and her boyfriend. Anastasia then told him she couldn’t come to work until he stopped his advances. He promised he would.
Still, over the next few days, the two communicated by e-mail, with the supervisor apologizing to her—and reminding her that she had a promotion coming.
At that point, Anastasia felt she had no choice but to complain internally.
HR investigated the incidents and concluded the supervisor hadn’t harassed Anastasia. It did warn him to stop his inappropriate behavior, which he did.
Anastasia sued anyway, alleging she had been the victim of sexual harassment.
The court, applying the eight standards above, concluded that the supervisor was simply a “tone deaf” suitor who was slow to accept that Anastasia wasn’t interested in him.
The court pointed out that there was no evidence of overtly sexual behavior such as grabbing Anastasia’s buttocks or breasts. Nor was the rest of the Citicorp work environment permeated with sexual images, such as provocative calendars or the viewing of Internet pornography. Nor was there any evidence of the use of obscenities or physically threatening actions.
At most, it seemed to the court that this was a case of a supervisor who didn’t or couldn’t read the cues Anastasia sent him when he expressed his romantic interest.
The court said it didn’t matter whether Anastasia subjectively felt harassed. What mattered was whether a reasonable woman in her position would have felt that way. The court concluded that such a hypothetical woman wouldn’t have felt harassed under the circumstances. Plus, it was clear that Citicorp took Anastasia’s complaint seriously and made sure the behavior stopped right away. (Anastasia v. Cushman & Wakefield, Citigroup et al., No. 08-18880, DC NJ, 2010)
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