13 'Nondefenses' to Workplace Harassment

Supervisors may not share with you all the misconceptions they hold when they sit through anti-harassment training, but that doesn’t mean that erroneous beliefs aren’t lurking. When educating your workforce on unwelcome conduct based on race, color, sex and other protected factors, there are 13 “nondefenses” you should cover. Each is a common, but unacceptable, justification for harassing conduct, even if the behavior isn’t necessarily unlawful. Which brings me to No. 1 …

1. The conduct was not unlawful. Don’t wait for the harassing behavior to become severe or pervasive enough to be unlawful. 

An employer’s policies and practices must prohibit any conduct that the organization considers unacceptable—such as “sexually explicit, sexually suggestive or otherwise inappropriate comments on appearance”—even if the behavior is not necessarily illegal. 

Hit this point hard in supervisor training. Refer to harassing behavior as unacceptable conduct rather than unlawful harassment.

2. There was no bad intent. The law is clear on this: Individuals do not need to intentionally make someone uncomfortable for the behavior to be considered unacceptable or illegal. Be clear that just because an employee lacks ill will, it does not mean that his or her behavior is OK.

3. It was only a joke. It doesn’t matter if something was supposed to be funny. Jokes of a harassing nature can be as invidious as direct slurs. Moreover, there is plenty of room for humor at work that doesn’t involve making fun of someone’s race, gender or religion. People who can’t understand this probably should not joke at all.

4. The employee never complained before. Irrelevant. Indeed, individuals often wait until there is a pattern that makes them uncomfortable before making a complaint—and that approach is perfectly acceptable. Supervisors should not assume that the absence of an early grievance means a later one lacks merit. The same admonition applies to HR.

5. The harasser is a top performer. That may very well be the case. In fact, the Equal Employment Opportunity Commission (EEOC) has stated that employers are more likely to ignore or discount the significance of bad behavior when the person engaging in it is a top leader or strong contributor to the organization. However, whether individuals achieve their status by position or performance, those in power should not be coddled; to the contrary, they must be held to a higher standard than other employees.

6. The conduct occurred offsite or off-the-clock. Actionable claims against employers are not limited to the workplace. The employer can be held liable for harassment that occurs at company-sponsored social events, for example, and in other contexts wholly independent of work, such as if a supervisor calls a subordinate at home and asks him or her for sex. 

When we talk about harassment, we are talking about relationships, which are not limited to one physical location. Make that point clear in your training.

7. The harasser is an equal opportunity abuser. Some employers will claim that if a manager abuses everyone, any hostility directed toward a protected group doesn’t matter. This is not only a hideous defense—it hardly makes a company an employer of choice—but also often an unsuccessful one. The EEOC and courts scrutinize both the quantity and quality of the abuse to discern whether the harasser is truly an equal opportunity abuser; even the slightest discrepancy that tilts the balance toward a protected group could spell legal trouble. 

[SHRM members-only toolkit: Preventing Unlawful Workplace Harassment in California.]

8. The conduct was not sexual or racial in nature. Sexual harassment does not need to be sexual. Nor is racial harassment required to be racial. 

Simply treating someone in a hostile way because of his or her membership in a protected group can be unlawful harassment. Even in cases when such behavior doesn’t rise to the level of illegality, it is wrong and counterproductive.

9. The harasser was a customer, not an employee. If a manager sees, hears or otherwise becomes aware of harassing behavior by a nonemployee with whom an employee interacts, he or she is obliged to respond. That’s why supervisor training must include “in the moment” suggestions for how to react to unacceptable conduct as it happens. 

10. The harasser and harassment target belong to the same protected group. Individuals of a particular protected group can unlawfully harass members of the same group. 

11. Alcohol made the harasser do it. The EEOC lists alcohol as a risk factor that makes harassing behavior more likely to occur. Blaming the conduct on Jack Daniels or Jim Beam is never a viable defense. 

12. The harassment was not unwelcome. The legal definition of harassment includes the term “unwelcome.” That said, the fact that someone took part in the conduct about which they complain does not necessarily mean he or she welcomed it. While such participation is a relevant factor in determining “welcomeness,” it is only one factor—and it certainly does not mean that the behavior was acceptable from an employer’s perspective. 

Consider this example: If two employees were having sex on a desk, would you ask whether that conduct was welcomed by one or both parties? Of course not, because the behavior is objectively unacceptable. The same holds true when it comes to sexual banter, racial “jokes” or the like. 

13. The offended person was not targeted. It is not necessary that harassing behavior be directed at an individual for him or her to make a viable complaint. If someone witnesses or otherwise becomes aware of an incident of harassment, he or she may raise concerns. Think of harassment like pollution. If it is in the air that an employee breathes, he or she has the right to speak up about it.

Spend time training your supervisors to make sure they don’t use one of these flawed rationales to defend indefensible behavior.  

Jonathan A. Segal is a partner at Duane Morris in Philadelphia and New York City. Follow him on Twitter @Jonathan_HR_Law.

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