In the legal world, welcomeness has been an element of a sexual harassment claim since Meritor Savings Bank v. Vinson – the first U.S. Supreme Court case to recognize sexual harassment under Title VII. Did the alleged victim welcome the breast grab? Did she engage in the sexual banter herself? Did he want his “junk tapped” by coworkers? If a claim is going to be successful, this analysis is a must.
Yet, this legal standard doesn’t capture the reality of workplace harassment. It ignores several factors that are at play that could suggest the conduct is welcome when it is most definitely not. Let me try to convince you that we need to focus on the conduct or comments of harassment and not whether that same conduct is welcome.
People say, “it’s okay” to make the encounter end quickly.
When something bad happens, we often say, “it’s okay” because we want a couple of things: (1) we don’t want to really talk about how we’re feeling, and (2) we want to get out of this situation. This happens with sexual harassment too. If someone grabs a butt or a breast – especially if that person is a co-worker or god forbid a manager – we want to get out of this situation fast. Like super duper fast. If we actually talk about how this feels or if we challenge a person who has input on our career (including co-workers), we might feel that we’re going to make the situation worse. So, we say, “it’s okay,” “don’t worry about it” or even shrug it off. These words or shrug are not words of consent but are words of resignation. We’re resigned that this happened, and we want to move on.
People do this all the time. We don’t always confront our racist uncle at Thanksgiving dinner or our pastor after a particularly homophobic sermon. We don’t because we don’t want to cause trouble. So, why do we make harassment targets do the same thing to prove that they actually were harassed? (If I had a dime for every harassment policy that says you must tell the harasser to stop as the first step…)
For HR and harassment investigators, the “it’s okay” is a challenge. For those focused on whether the conduct was welcome, this is the silver bullet. She said, “it’s okay” so it must be. It was welcome. Nothing to see here. No harassment. This is the problem. Reminder: Employers have an obligation to keep harassment out of the workplace. Employees have no obligation to report under the law.
Even when sexual conduct is welcome, it’s unwelcome to somebody.
In harassment trainings, I go through a bunch of scenarios. One of my favorite rapid-fire scenarios is this:
Colin has been head’s down on a project for weeks. The project is finally over, and he accompanies the team to happy hour to celebrate. He’s so happy to be done with the project, he kisses Judy. Is this harassment?
Without fail, within five seconds of reading this scenario, some jokester yells out “what if Judy is his wife?” I give him (always a him), a look that screams “listen, buster” and calmly say, “Do you work with your wife?” (Hushed giggles throughout the crowd.) If Judy was Colin’s wife, arguably he does not engage in sexual harassment as the law would view it. If Judy is his wife and they begin a rigorous game of tonsil hockey, then the team around them turn their heads away, get up to go to the bathroom, and/or otherwise consider calling it a night. If this happens, there is an arguable case for sexual harassment since the team clearly did not want to watch the competitive sport of kissing as played by their coworkers.
Here’s another rapid-fire example:
Peter and Juliet joke around all the time. The jokes have turned flirty with both commenting on each other’s bums. Is this harassment?
Depending on the industry I’m training, a varying degree of uncomfortableness spreads throughout the crowd. They suspect the answer is yes, and some will admit they may have done this but they’re not sure if this is “illegal.” I explain that I’ve helped an organization in a very similar circumstance where the banter was consensual, but the person next to them had to hear it day in and day out. Eventually, he complained to his boss who then promptly fired him. While the underlying sexual harassment claim might not have been actionable, the retaliation that resulted was clear. The lesson here for employees – don’t engage in sexual banter even when you and the other person wants to.
Even when sexual conduct is welcome, it doesn’t always stay welcome.
News flash: Romantic relationships fail at an alarming rate. Consider all the relationships that an individual has to go through before marriage. Then consider that half of marriages fail. That’s a lot of failed relationships. In the workplace, relationships fail a lot too. When a welcome, romantic relationship fails the potential for harassment or retaliation to occur is high. Scorned lovers – male or female – exist and wreak havoc. They can seek to rekindle their love with unwanted words, gestures, and touching – all potential conduct in violation of an employer’s sexual harassment policy.
Let’s let go of welcomeness.
When we get a complaint of harassment, we need to look at the conduct or comments that led to the complaint. It shouldn’t matter whether the conduct was invited or even wanted. What should matter is that we don’t want our employees, clients, customers, vendors, etc. to watch a rigorous game of tonsil hockey, a butt grab, or hear a particularly randy joke. We shouldn’t tolerate it in our workplaces regardless of whether it was the married couple in cubes four and ten or the supervisor to her employee in the breakroom. It’s the conduct that is the problem, not whether it was welcome conduct.