Business Law 101 / Sexual Harassment
By Albert L, Kelley, Esq.
Probably the most discussed the legal issue of 2017 is sexual harassment. Some of the most powerful men in various industries have been brought down over sexual misdeeds. At last count over four dozen men this year have been accused including Producer Harvey Weinstein, Actor Kevin Spacey, Chef John Besh, Senator Al Franken, Host Matt Lauer, Journalist Mark Halperin,, former Judge Roy Moore and Athlete Warren Moon. Even President George H.W. Bush and President Trump have been accused of sexually assaulting women. Many of the accusations occurred in the workplace. And assaulters are not just men, women such as singer Melanie Martinez and CEO Miki Agrawal have been accused of sexual harassment as well.
To address this issue, we must first understand what it is. This creates a problem as sexual harassment is not well defined. The EEOC defines it as “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.” Essentially, sexual harassment consists of words or actions that are unwanted and unwelcome by the other party, and makes them feel threatened or uncomfortable. It is not based on the intent or belief of the person making the statement, but in how that statement makes another party feel. And the other party does not have to be part of the conversation or action. A private discussion or interaction between two coworkers can be deemed sexual harassment if it can be heard or seen by a third coworker.
This is not a prohibition on small talk, nor a ban on office romances. If all parties are accepting, and it doesn’t affect other employees, it is not harassment. But, because we all have different beliefs and tolerances, there is no bright line as to what is appropriate and what is not nor how to determine when a comment is inappropriate and when it is not. So to be safe, there are certain guidelines to follow: Especially in the workplace, any comment of a sexual nature is inappropriate. While it is usually acceptable to tell somebody “You look nice”, it becomes inappropriate if you say “Your legs look nice” or “I like how that dress looks on you.”. The implication of the statement makes it improper. When it comes to touching, in the workplace anything past a handshake is probably going too far. While it used to be common to give someone a pat on the back, to some people, that is intruding on their personal space. A pat on the back that lingers too long is inappropriate. Definitely touching their arm or leg is over the line. Unless you are a massage therapist or a doctor, there is little reason to ever be touching another person, and clearly not another employee. Sending suggestive or lewd emails or forwarding a crude joke is also a risk as the recipient’s sense of humor may be different from your own.
In the workplace we should try not to think of each other as men or women, but as co-workers. If you would not make a comment to another man, or touch another man in a certain way, why would you with a woman? Everyone must be treated fairly and professionally, based on their abilities, not on their gender, appearance or attributes.
Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.
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We live in a matriarchal society where women are supposed to be co-equals. Yet, predominantly, women resort to retaliation when anyone other than those she invites makes any advances, be they verbal or physical. No equality is possible when some use third parties to do their bidding. When resorting to upper hand vindictiveness, a scenario of victim and bully is conjured up to demand restraint. That is not the real world and never, ever will be, regardless of lame laments by would-be victims, be their male or female…especially years after the fact.