Sexual harassment prevention: cement for the glass ceiling?

HR Magazine, Nov, 1998 by Jonathan A. Segal

Both women and men can be the objects of sexual harassment, as anyone who follows the U.S. Supreme Court probably knows. But, as a practical matter, women are more likely than men to be the targets of unwelcome attention.

That, unfortunately, is not the only bad news for women. Women also are more likely than men to be the unintended victims of sexual harassment prevention programs that, if poorly designed or executed, can effectively bar them from the corridors of power. The well-meaning goal of preventing sexual harassment should not impede two other laudable objectives: fostering meaningful communication and providing mentors for promising female employees.

In the wake of three highly publicized Supreme Court rulings on sexual harassment (both between and within genders), it's a good time to ponder the potential adverse effects of sexual harassment prevention programs - and discuss ways to avoid them.

DIMINISHING BY RESCUING

From a legal perspective, sexual harassment does not exist unless an employee experiences "unwelcome" conduct. No matter how offensive conduct may be, if it is not unwelcome, it is not actionable.

Because of this legal standard, sexual harassment litigation often seeks to clarify what is welcome and what isn't.

When an employee explicitly tells a co-worker that his or her actions are unwelcome, the message is clear. Likewise, when employees make use of their employer's harassment complaint procedure, it is clear that they have experienced unwelcome conduct.

However, the absence of direct notification or a complaint does not necessarily show that the conduct was welcome, according to the Supreme Court's 1998 decisions in Oncale vs. Sundowner Offshore Services (118 S.Ct. 998), Faragher vs. City of Boca Raton (No. 97-282) and Burlington Industries vs, Ellerth (No. 97-569). Rather, in each case involving alleged misconduct by a supervisor, a court must decide whether, given the employer's preventive and corrective actions, the employee's failure to complain was unreasonable.

As a result, employers have a clear incentive to respond to objectionable behavior-even if they have received no complaint. However, employers should guard against dangerously paternalistic responses.

Women understandably would bristle if characterized as delicate creatures who need male-dominated management to protect them from incorrigible male co-workers. Yet, unsolicited remedies of potential harassment may send just that message by perpetuating stereotypical notions about the fragility of women.

When remedying inappropriate behavior in the absence of a specific complaint, employers should avoid even suggesting that they are "protecting" employees in general or women in particular. The focus should be on the company's objective standards of inappropriate conduct, whether or not an employee has been or could be offended.

For example, telling sexist jokes is inappropriate, regardless of whether anyone is offended by them. However, managers should focus on whether the jokes are inappropriate, not on whether women (or men) might object to them.

Harassment programs should empower their beneficiaries, not diminish them. As women increasingly and appropriately demand senior management positions, male senior managers must be careful not to suggest that they are rescuing Pauline from her perils.

WHEN GENDER-based STANDARDS ARE OK

Even if conduct is unwelcome, it also must be "objectively offensive" to serve as the basis for a sexual harassment suit. But how do you define objectiveness?

In other contexts, the courts have applied a theoretically gender-neutral "reasonable person" standard to determine objectiveness. However, in the context of sexual harassment cases, many courts, as well as the U.S. Equal Employment Opportunities Commission, apply a "reasonable woman" standard.

Under the "reasonable woman" standard, the gender of the complainant is relevant in determining whether the conduct complained about is objectively offensive. The reasoning is generally as follows:

* Harassment interferes with an employee's comfort level or ability to perform.

* Comfort level turns, at least in part, on perspective.

* Perspective is influenced by experience.

* The experience of being a woman differs from the experience of being a man.

In other words, as groups, women and men often respond differently to the same stimuli. For example, most women probably would be uncomfortable hearing their male co-workers discuss their sexual fantasies, while many men might be aroused to hear their female co-workers discussing their fantasies.

To enable men to appreciate how they may unintentionally make women feel uncomfortable, harassment training programs often focus on the differences in perspective associated with gender. While this focus may be beneficial in sensitizing men, it may lead to stereotyping.

There is a fine line between making people more sensitive to differences between groups and encouraging them to stereotype certain groups. All women do not see things the same, and neither do all men - just as it is true that not all Asians, Catholics or African Americans have identical values or ideologies.