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Not all skeevy conduct is sexual harassment

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in Discrimination and Harassment,Human Resources

Sexual harassment is a serious workplace issue. Preventing it and stopping it once it has started are crucial to avoiding expensive litigation and potentially ruinous jury awards.  

On the other hand, not every action that may be interpreted as harassment actually is.

That doesn’t mean employers should ignore a one-time incident or behavior brought to HR’s attention. You can and should end any behavior that may be perceived as offensive or harassing. Once you have, you can move on, as this recent Texas Supreme Court decision shows.

Recent case: Debra worked for the San Antonio Water System and observed a supervisor asking female co-workers out for lunch. The women weren’t in the supervisor’s chain of command, but they allegedly told Debra the invitations made them feel uncomfortable. She confronted the man even though she herself had never received any lunch invitations.

Two years later, a resignation led to Debra’s transfer into the supervisor’s chain of command. Shortly afterward, she was terminated.

She sued, alleging that when she had complained about her co-workers’ lunch invitations, she had engaged in protected activity. Therefore, she said, her termination was retaliation. A jury agreed and awarded her $1 million. The water agency appealed.

The Texas Supreme Court tossed out the award. It reasoned that no reasonable employee would believe that a few lunch invitations amounted to sexual harassment. That meant Debra hadn’t engaged in protected activity. Her termination, therefore, wasn’t retaliation. (San Antonio Water v. Nicholas, No. 13-0966, Texas Supreme Court, 2015)

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