Most organizations realize they have to take reasonable steps to stamp out sexual harassment. Their efforts — creating a comprehensive policy, letting employees know where to turn, investigating and resolving complaints and punishing harassers — have probably done a lot to wipe out the most blatant and outrageous examples of sexual harassment.
But what about more subtle harassment? Does your organization have to worry that errant looks or the occasional “not-in-the-best-taste” comment will lead to a lawsuit?
The answer is “no.”
That’s true even if the employee alleging harassment comes with his or her own baggage and is more sensitive than the average employee to harassment cues and innuendos. If the conduct isn’t pervasive, hostile and abusive to ordinary employees, it isn’t harassment.
Recent case: Postal employee Ronelle Wilkinson complained that a co-worker was sexually harassing her. She sued, alleging that the co-worker stared at her, sometimes followed her as she made her work rounds, and once touched her lightly on the forearm as she passed by him.
Wilkinson’s attorneys said the co-worker made Wilkinson uncomfortable because she had been stalked for two years back in the 1990s and was still on anti-anxiety medication. Wilkinson apparently was very sensitive to sub-
tle cues and thought she was being harassed.
But the court rejected her claim. It reasoned that an employee who is hypersensitive can’t use his or her subjective reaction as evidence there was harassment if other objective observers wouldn’t react the same way. Otherwise, employers could be liable for conduct they and everyone else couldn’t pick up on. The court refused to delve that deeply into employees’ psyches. (Wilkinson v. Potter, No. 06-30921, 5th Cir., 2007)
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