Fight harassment with a no-sex-talk policy

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

Likewise, a no-race-talk rule can block harassment claims

In the same way as a no-sex-talk policy, a policy that clearly bans racially tainted comments can end pointless arguments about whether speech or conduct is racially offensive enough to trigger a lawsuit.

Implement the policy, then punish those who violate it.

Example: Carrie Redmond, who is black, filed a racial discrimination complaint with her employer. She noted that a worker refused to go to her baby shower to avoid driving in the “ghetto.” Another co-worker allegedly told a black employee she didn’t “put grease in her hair like you people.”

After being fired, Redmond filed a retaliation claim, saying she was fired for complaining about the hostile environment. The court sent her case to trial, citing the racial comments. (Redmond v. Cemex, No. 8:08-CV-884, MD FL, 2009)

Note: A policy that forbade any racial comments might have prevented such a lawsuit in the first place.