HR Specialist: Employment Law

Clear, common-sense employment law advice that cuts directly to the bottom line. An attorney may say what the law is – but the monthly issues of HR Specialist: Employment Law and its related weekly e-letters explain what managers and human resource professionals should do that is both safe and practical in the real world of business. Learn more about HR Specialist: Employment Law and the two free reports you'll get when you subscribe...

For years, employers have grappled with the question of what exactly is “sexual harassment” and how much sexual banter is allowable. But lost in that debate is the fact that a workplace is just that—a place where work is supposed to be done.

Here’s one good way to end this legal tightrope-walking and prevent potential problems down the line: Implement a policy that clearly bans sexual banter. Then punish those in violation.

Remember, in most discrimination cases—which employees often file after they’ve been disciplined for harassment—the employee has to show that he was meeting the employer’s expectations. And if you can prove he was breaking a rule by engaging in sexual banter, he wasn’t meeting company expectations.

Recent case: LG Electronics has a strict workplace rule that prohibits “sexually oriented or explicit remarks, including written or oral references to sexual conduct.” All employees receive a copy of the rule.

Gabriel Othon apparently ignored the rule, because he propositioned his female boss for various sexual acts. He then told her he would blackmail her if she didn’t consent, and suggested that the work problems he was having would all go away if they had sex. Then he told others that his supervisor was having an affair with another employee.

Not surprisingly, the supervisor reported Othon’s comments to HR. Othon was asked whether the allegations were true, and he readily admitted his conduct. LG then fired him for breaking the no-sex-talk rule.

He sued, alleging discrimination.

But the court said he first had to show that he had been meeting his employer’s legitimate expectations. Since he admitted to breaking a workplace rule, he couldn’t show that. His case was dismissed. (Othon v. LG Electronics, No. 08-C-878, SD IL, 2009)

Online resource: For more advice on sexual harassment policies and procedures, access these white papers at www.theHRSpecialist.com/whitepapers:

• Preventing Sexual Harassment: A Business Guide and Sample Policy
  
• Investigating Harassment: How to Determine Credibility