If your HR job includes evaluating claims of sexual harassment and hostile environment, it’s a good idea to approach investigations from two separate but related angles. Once you gather the evidence, think about a case the way a judge would view it.
First, try to imagine the situation from the point of view of the employee making the complaint. Do you think that person would perceive the situation as severe or pervasive? Consider the conduct’s frequency and severity, whether it was physically humiliating or threatening or interfered with job performance. For example, a teenager in her first job might consider the conduct severe while an older employee wouldn’t feel that way.
Next, look at the same factors from the stance of a hypothetical, reasonable person: How would the average employee view the situation?
If the alleged victim is ultra-sensitive about conduct that wouldn’t offend a reasonable person, that’s not a hostile environment. Both would have to agree that it is.
Recent case: Postal worker Constance Agee alleged that her supervisor shouted, treated her in a “dehumanizing” manner and made comments she interpreted as sexual in nature.
The court concluded that Agee really thought she worked in a hostile environment. But when the court looked at the allegations through the prism of a hypothetical, reasonable postal worker, it couldn’t see any rational interpretation of the allegations as sexual in nature. It dismissed the case. (Agee v. Potter, No. 06-12391, 11th Cir., 2007)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Settling the case was easy, until the IRS got involved
- Will your decisions hold up in court? Be prepared to explain apparent contradictions
- Retaliation case doesn't have to rely on specific bias claim
- EEOC tests digital charge system to handle discrimination complaints