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Even ‘harmless’ banter can create a hostile environment

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in Discrimination and Harassment,FMLA Guidelines,Human Resources

Issue: A new ruling lowers the bar on what courts consider sexual harassment.

Risk: Allowing "boys to be boys", even if they don't target anyone for abuse, can now cost you in court.

Action: Follow the three steps listed below.

You've got a new reason to take a harder line on sexual banter and crude antics in the workplace: One of the most conservative courts of appeal set the bar lower on what constitutes a "hostile environment."

The surprising 4th Circuit ruling could encourage other courts to crack down on seemingly stray remarks at work.

Take these three steps as a result:

  1. Make your anti-harassment policy "user-friendly." Give employees specific and clear boundaries of what is considered acceptable behavior. Plus, lay out the steps employees should follow to complain about harassment, and outline the steps the company will take in response.
  2. Include upper-level managers. Your policy must require supervisors to report all harassment complaints to a higher authority.
  3. Don't foster a "boys will be boys" atmosphere. Impress upon supervisors that any sexually offensive conduct is unacceptable, even if it's back-and-forth banter not targeted at anyone.

Recent case: After she was fired for absenteeism, Lisa Ocheltree, the only woman in a production shop, sued for sexual harassment, citing her male co-workers' explicit conversations about their sexual exploits. The men shared obscene pictures and simulated sex acts on a company mannequin.

While a lower court had tossed out the case, saying the actions weren't targeted specifically at Ocheltree, a full appeals court let the case proceed, saying the conduct was so sex-specific and derogatory that it's clear the harassers were motivated by a hostility toward women.

Another strike against the company: Its weak anti-bias policy only outlawed general verbal abuse. (Ocheltree v. Scollon Productions Inc., No. 01-1648, 4th Cir., 2003)

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