QUESTION OF LAW

By Julie A Moore, Esquire
Reprinted with permission of the The Union Leader, September 25, 1998

This column is published in conjunction with the New Hampshire Bar Association as a public service. It is not presented as specific advice, which may only be provided by an attorney based upon each individual situation. If you need a referral to an attorney, the NHBA Lawyer Referral Service is available to assist you. Call 229-0002 or visit our website at www.nhbar.org for more information.

QUESTION: What is sexual harassment and what should I do if I feel that I am being sexually harassed at work?

ANSWER: The U.S. Supreme Court recently clarified the law of sexual harassment in the workplace, more clearly defining rights and obligations for employers and employees.

Sexual harassment is defined as widespread or severe intimidation, ridicule or insult in the workplace. It creates an abusive working environment and impairs an employee’s ability to work, although the harassed employee need not have been fired, demoted or suffered a "tangible" job action. It can take many forms, including words, actions or gestures. It must be personally offensive to the person who is complaining about it. Furthermore, it must also be objectively offensive.

Sexual harassment can be perpetrated by men or women. Likewise, both men and women can be victims of sexual harassment. Men can sexually harass men, and women can sexually harass women.

For harassment to be considered sexual harassment, the behavior must be aimed at another employee because of his or her sex. If, for example, a co-worker engaged in explicit or implicit proposals for sexual activity, then it is clear those proposals were made because of that person’s sex. This could be considered sexual harassment.

The harassing conduct, however, need not be motivated by sexual desire. Consider this: a female employee is harassed by another employee who is using sex-specific and derogatory terms. If, in this example, the harasser was motivated by general hostility to women in the workplace, then the female employee may properly claim that she was sexually harassed.

Sexual harassment must be unwelcome conduct from the viewpoint of the person claiming to be harassed. If a supervisor and subordinate, for example, are engaged in a romantic relationship, then the physical affection between them is not sexual harassment because it is welcome conduct between consenting people.

The law is intended to stop sexual harassment in the workplace, but it is not intended to be a general "civility code." Genuine, but mild or harmless, differences in the ways men and women routinely interact with members of the same sex and the opposite sex are not intended to be included in the legal definition of sexual harassment. Ordinary socializing in the workplace, such as flirtation and some horseplay, may not be considered sexual harassment, but it cannot be emphasized enough that great restraint and caution must be exercised. Common sense and social context must be considered in determining if the behavior could be considered sexual harassment. For example, a professional football player’s working environment is usually not hostile or abusive when the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be seen as abusive by the coach’s secretary back at the office. The impact of workplace behavior depends on a number of circumstances, expectations and relationships.

If workers experience conduct in the workplace that is personally offensive, they need to communicate that the conduct was unwelcome, so that there are no misunderstandings about boundaries and limits. Explicitly tell the person or persons—in a clear, firm manner—that the behavior is offensive and that it creates an uncomfortable environment.

Along with confronting the harasser, one should also speak with a supervisor or someone else in the workplace about it. If the employer has a personnel handbook, see if it contains an anti-harassment policy and complaint procedure. This policy and procedure may also be posted somewhere in the workplace or it may have been distributed to employees separately from the handbook. Follow the policy or reporting procedure if there is one. Employees often go the human resources department or any managerial level person to lodge a complaint. In addition, consider confiding in someone else outside the office for emotional support.

Keep a record or diary of any incidents that have occurred, including the dates, details of what happened, who was involved, where it took place, and any witnesses that may have been present. Keep any notes, e-mail messages, posters, answering machine tapes or other tangible documents or recordings that were part of the harassment or which form the basis of the harassment complaint.

Before filing a lawsuit, employees should first exhaust any opportunities the employer has in place to correct the problem. In the absence of specific policies on the handling of sexual harassment charges, employees must act reasonably under the circumstances to avoid further harm to themselves. If employees fail to complain internally or otherwise fail to help themselves, then they may be barred from recovering anything in court.

If the intervention of the employer is ineffective or if the employer does not take the complaint seriously, employees should consult with an attorney who can advise them of their rights and obligations under the law. In addition, employees should contact the New Hampshire Commission for Human Rights in Concord (271-2767) if they question whether the offensive conduct violates the law. Employees should report the conduct they believe is harassing as soon as practicable. Depending on the factual circumstances, if an employee files a charge with the New Hampshire Commission for Human Rights more than 180 days after the sexual harassment occurred, the employee may be barred from pursuing legal action against the employer. An attorney can best advise employees of their rights in such situations.

Employers are becoming more educated about the sexual harassment in the workplace, and prudent employers are acting swiftly and properly to prevent and correct it. If it still occurs, however, employees have rights and there are many avenues to take to exercise them. Taking advantage of the many resources that are available will help to put an end to sexual harassment.

Julie A. Moore, Esquire of Employment Practices Group in North Andover, Massachusetts, specializes in risk-management, workplace training and internal investigations on sexual harassment and other employment issues. She is admitted to practice law in Massachusetts and New Hampshire. She can be reached at jmoore@employmentpg.com or 978-975-0080.