Get tough on horseplay, banter; courts will
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 sent a clear message about what qualifies as harassing conduct and a "hostile environment." And it set the bar lower then you'd expect.
This surprising 4th Circuit ruling, reversing a 2002 decision, could encourage other courts to crack down on seemingly stray remarks at work. And it could force your supervisors into a "policing the beat" mode. As a result, you need to review your anti-harassment policy to make sure it's specific and "user friendly." And don't hesitate to crack down on crude sex-based behavior, even if it's not targeted at anyone in particular.
Recent case: After she was fired for excessive absenteeism, Lisa Ocheltree sued for sexual harassment, citing her male co-workers' explicit conversations of their sexual exploits, sharing of obscene pictures and simulating sex acts on a company mannequin. She was the only woman in the production shop.
A three-judge panel tossed out Ocheltree's case last year, saying the men's behavior was neither "because of" her sex, nor was it targeted specifically at her. But the full appeals court overturned the ruling, saying the daily conduct was "sex based or sexist" enough to create a hostile environment.
Bottom line: Sexual harassment doesn't just occur when a woman is the target of open hostility because of her sex. It also can occur from comments, not targeted at anyone, that are so sex-specific and derogatory that it's clear the harasser is motivated by a hostility toward women.
Another factor: the company's weak anti-discrimination policy was general at best, titled simply "Talking", and outlawed only general verbal abuse. It said workers with complaints "should first try to resolve it with their supervisors." As a result, the court said the company failed to provide a reasonable way for workers to complain. (Ocheltree v. Scollon Productions Inc., No. 01-1648ap, 4th Cir., 2003)
3 lessons from the Ocheltree harassment case
Second, include upper-level managers. Your policy must include an effective reporting procedure that requires supervisors to report all harassment complaints to a higher authority, possibly the HR director.
Third, don't foster a 'boys will be boys' attitude. Continuously train and counsel supervisors that any sexually offensive conduct is unacceptable, even if it's back-and-forth banter not targeted at a specific worker.