Expert: Michael Troy - 8/2/2006

Question
How can one be sure where the line is of what is and isn't sexual harassment. I hate having to guess with which people my sense of humor might be accepted, and to who it might offend. And I would consider it to be fairly mild. I am not a touchy type of person and I avoid physical contact with all my co-workers, but something in the recent past prompted my boss to tell me that I said some things that were "borderline sexual harassment." Naturally I decided to talk to fewer people since, but I just think it is more appropriate that if a person is offended by me they should address me directly. At least then I can know what it was that bothered them and it can be handled that way. So besides talking to nobody, and avoiding eye contact with other people how can I deal with a situation like that? And how is sexual harassment defined exactly?

Answer
Hi James,

I certainly understand your confusion.  Sexual harassment law is extremely vague as to what is covered under its definition.

To get a better understanding, it's good to know how sexual harassment law developed.  Congress never passed any law explicitly making sexual harassment illegal.  Rather, the Equal Employment Opportunity Commission developed the idea based on the Civil Rights Act of 1964, which made sex discrimination for employment illegal.

The EEOC determined that if an employer allowed co-workers to badger and harass a woman, simply because she is a woman in the work-place, and the harassment was so bad that she could not do her job and had to quit, that was no different than firing the woman because of her sex.  The thinking at the time was geared more toward the example of police or fire departments who thought they should remain all-male and who just made women's lives miserable to tried to join the department.

However, the rules went far beyond intentional harassment.  Even unintentional acts which might unreasonably interfere with a woman doing her job were deemed harassment.  Thus, we had examples of fire houses that had pictures of naked women on the walls for decades, suddenly having to remove them because new women co-workers found them offensive and distracting, thus preventing them from doing their jobs.

There are two important things to take from this history.  First, sexual harassment was not originally meant to affect images or discussion of sexual activity.  Rather it was meant to prevent actions which discriminated against a particular sex (in modern terminology "gender") of workers.  However, as things have evolved, more and more courts have accepted the idea that sexual harassment usually involves some spoken, written, or imagery of a sexual nature.  The assumption is that women are more offended by such things and that therefore it has a discriminatory impact on them.  (Note the irony of an anti-sex discrimination law using stereotypes and assumptions based on a person's sex).  

Second, sexual harassment is aimed at employers.  Co-workers cannot be charged with sexual harassment (by the government).  In other words, the law does not directly prevent you from saying or doing anything.  However, if your employer tolerates your actions and they are found to be harassing, the employer can be charged and punished.  This has the obvious result of forcing all employers to adopt strict anti-harassment policies and punishing or firing those who do not comply.

Now, after that very long preface (sorry) to answer your question.  The EEOC defines sexual harassment as follows:

"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment."

Of course, exactly what constitutes the creation of an "intimidating, hostile, or offensive work environment" is anybody's guess.  Courts have widely differing views on this.  The main points of agreement are that the actions must be more than merely offensive.  They must substantially interfere with a worker's ability to do her job.  For example, one off-color joke probably is not harassment.  But multiple jokes make frequently might make the workplace so unbearable that might affect someone's ability to do their job.  Of course, that is not to say that there is no single act that would constitution harassment.  For example, if you ripped the clothing off a co-worker in the office, such an act would be so extreme that a single act would create a hostile environment.

As a result of the vagueness of the standards, most employers don't want to get in the business of splitting hairs and finding the exact line of what constitutes harassment.  Their goal is to avoid any litigation that will cost them money and time.  Thus, most employer set up sexual harassment policies that ban lots of things that would probably never constitute harassment under the law.  Many businesses have policies that ban any off-color jokes or statement.  Some ban any dating of co-workers.  Some have banned all personal pictures or effects in public view rather than have to decide what is or is not acceptable.  Since private employers can make up any rules they like for the workplace, such far reaching protective rules make sense to many of them.

In my personal view, the vagueness of sexual harassment law is unconstitutional since it silences so many things about which people should have a right to discuss.  The Court's have long had a "void for vagueness" rule applied to other areas of law.  But I stress, this is my PERSONAL view.  It is NOT the law.  The courts have regularly upheld the EEOC standards.

For more info on case-law and examples of what the EEOC considers Sexual Harassment, you may find this website helpful:

http://www.eeoc.gov/types/sexual_harassment.html

Sorry to be so long, but I hope you found this useful.

- Mike