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You don’t have to police workplace banter, but don’t let it escalate

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in Discrimination and Harassment,FMLA Guidelines,Human Resources

On the production floor, Lisa Ocheltree had to listen to conversations between male co-workers about their sexual exploits, which included vulgar language. The men showed each other obscene pictures and pretended to perform sex acts on a company mannequin.

After she was terminated for excessive absenteeism, Ocheltree sued, alleging sexual harassment under Title VII, based on a hostile work environment.

While a lower court sided with her, the 4th Circuit court reversed and tossed out the case. Why? Most of the incidents didn't involve discrimination "because of" sex. They took place in group settings as part of the male workers' "daily bantering," the court said, and were overheard or witnessed by Ocheltree. These incidents weren't targeted at her, nor did they begin or change when she began working there. She would have been exposed to the same atmosphere had she been a man. Although the discussions were sexually explicit, degrading and insulting, they were not aimed solely at women.

Ruling for Ocheltree, the court said, would make Title VII a workplace code for "gentlemanly conduct," instead of an anti-discrimination statute. (Ocheltree v. Scollon Productions Inc., No. 01-1648, 4th Cir., 2002)

Advice: To prove harassment based on sex, employees have to show that gender prompted the offensive action. The ?key question the court will ask: "Would the complaining employee have suffered the same harassment had he or she been a different gender?"

This doesn't mean your company should turn a blind eye to equal-opportunity harassers. Courts are increasingly open to various forms of same-sex harassment.

Bottom line: Don't let up on your anti-harassment efforts just because courts disagree on the scope of harassing conduct. Continue to train and counsel employees that sexually offensive conduct, whether verbal or physical, is unacceptable.

? Free E-visory report: Sexual harassment guideand sample policy

Our two-page primer, Preventing Sexual Harassment: A Business Guide, includes the five best ways to stay out of court, plus a sample sexual harassment pol-icy. Get a free copy at our new You & The Law Extra! Web site

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