“Hopefully, we can all agree that the office is not the place for such crude remarks,” Larae Cunningham, an attorney at Philadelphia-based law firm Obermayer, writes for HRLegallist. “But how can managers effectively curb such offensive language--especially if the office environment is full of banter among co-workers?”
Employers and their human resources teams need to be proactive and clearly state that no employees are to be subject to discrimination and workplace and sexual harassment, Cunningham writes. Educating employees about such issues, laying out clear guidelines on how employees can report when they have been subject to such actions and making clear that inappropriate behavior will not be tolerated needs to be the cornerstone of any policy.
“Although employees may be hesitant to come forward with reports of crude behavior for fear of being labeled a ‘goody two shoes’ or worse, managers and supervisors should encourage reports and advise employees not to tolerate an inappropriate work culture,” Cunningham notes. “Management should remind employees that taking a stand against such behavior can have a positive effect on their work environment and relationship with colleagues.”
A Tampa Bay Times business columnist highlighted one case involving a former employee at Raymond James Financial in St. Petersburg. Kathryn Wyant filed a complaint in August with the Equal Employment Opportunity Commission (EEOC), accusing her employer of subjecting her to a “hostile, alcohol-fueled work environment and then retaliating against her” when she sought help, Robert Trigaux wrote in his column.
“In addition to being urged to participate in college drinking games by her boss during office hours at Raymond James, Wyant said her boss was prone to foul language and talking about explicit sexual escapades,” Trigaux noted. When Wyant complained to HR, she said they provided little support. While her boss was later demoted, he continued with the firm as a co-worker of Wyant.
In the EEOC claim, Wyant said HR recommended she “avoid him by switching to her previous job in the company, one that would constitute a demotion.” The EEOC complaint noted that after Wyant sought an attorney, her boss was fired. But others at work ignored Wyant and she no longer was in line for better opportunities.
A settlement was reached in the case, but neither side has commented. Raymond James did not respond to a request for comment from Trigaux, but the firm said its policies prohibit any form of harassment.
Some employers may see Trump’s videotaped comments, including him saying he could grab a women’s genitals anytime he wants, as something that, while inappropriate, was made in jest. But companies that tolerate similar comments will set the foundation for a sexual harassment “hostile work environment” lawsuit, Daniel Schwartz writes for Connecticut Employment Law Blog.
“If you’re wondering, first of all, whether the actual grabbing (as opposed to extremely lewd talk) of female anatomy is sexual harassment, the plain answer is absolutely yes,” says Schwartz, partner at Connecticut-based law firm Shipman & Goodwin. Many cases involving physical contact go back to the late 1980s and early-to-mid 1990s when hostile work environment cases started to reach the courts, he writes.
But what about very crude language from supervisors? Could this be enough to lead to legal action? The “key to such a claim is whether the actions were severe or pervasive enough to change the conditions of employment and create an abusive environment, judged either by an objective standard (in other words, any reasonable person would find the conduct abusive); and a subjective standard (in other words, the employee in question found the conduct abusive),” Schwartz writes. “Thus, if a supervisor made isolated comments, it typically isn’t enough (though sometimes it is so bad that it can be),” he adds. “Rather, what courts are looking for is an environment where these types of comments are more the norm, rather than the exception.”
Obermayer’s Cunningham writes that supervisors and managers are role models for employees and that they “should not ignore ‘lock room talk’ even if no one complains.”
“It also means that management should abide by appropriate workplace behavior at off-site functions, including company happy hours, ect.,” Cunningham writes. Schwartz does note that the law does not prohibit lewd talk in the workplace and that one-off comments about someone’s appearance, even from the CEO, would not be enough to constitute legal action.
“But talk about [sexually] assaulting women is just something more,” he writes. “And if employers are thinking that this talk goes on all the time in their workplace and it’s no big deal, it’s probably worth a call to your lawyer—because a lawsuit may just be right around the corner.”