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‘Tone-deaf’ suitor or true harasser: How to tell

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in Discrimination and Harassment,Hiring,HR Management,Human Resources

When it comes to investigating sexual harassment complaints, the devil is in the details.

A boss’s repeated failed efforts to woo a subordinate isn’t necessarily harassment. But it’s often unclear for HR to tell when ineffective courting crosses the line into actionable harassment.

To help you understand the line, 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 (see box below).

Recent case: Amelia Anastasia’s boss admitted he had a crush on her. She brushed off his suggestion. Later that day, he touched her arm while paying her a compliment. The next day, he asked her for her picture.

Anastasia told him she couldn’t come to work until he stopped his advances. He promised he would. He also apologized—and reminded her she had a promotion coming.

At that point, she complained internally. HR investigated and concluded her boss hadn’t harassed Anastasia. But it still warned him to stop, which he did.

Anastasia sued anyway. The court, applying the eight standards listed below, concluded the boss wasn’t a harasser, but simply a “tone deaf” suitor who was slow to accept that Anastasia wasn’t interested.

The court said there was no evidence of overtly sexual behavior. Nor was there any evidence of obscenities or threatening actions.

It didn’t matter whether Anastasia subjectively felt harassed. What mattered, the court said, was whether a reasonable woman in her position would have felt that way. Plus, it was clear that the employer took Anastasia’s complaint seriously. (Anastasia v. Cushman & Wakefield, No. 08-18880, DC NJ, 2010)

How to find the truth in he-said/she-said cases

When faced with conflicting stories of potential harassment, HR professionals typically do a good job of interviewing the right people and documenting the interviews. But they often fall short when it comes to analyzing the evidence.

For example, you may wrongly think employees must show that harassment occurred “beyond a reasonable doubt,” as in criminal cases. Instead, HR investigators should be using the lesser standard of “preponderance of the evidence,” which means it’s more likely than not that the allegations occurred.

To help you identify the truth from conflicting accounts of potential harassment, access our free white paper, Investigating Harassment: How to Determine Credibility.

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