It’s the Holidays: Let’s Talk about Harassment

By Sarah H. Lamar, as published in Business in Savannah

Harvey Weinstein, Matt Lauer, Charlie Rose, Al Franken, Louis C.K., and Kevin Spacey probably won’t be attending their office holiday parties this year. But most of us will attend, and, believe it or not, that’s where a lot of inappropriate conduct takes place. The holiday party is particularly vulnerable because you’re with work colleagues in a non-work setting coupled with alcohol. What could create a better environment for misbehavior? Oh, wait, everyone is using their Snapchat and Instagram accounts to memorialize the evening!

The bottom line is that an office holiday party is still a work-related event, which means the laws that prohibit harassment still apply. The legal standard for harassment under federal employment law requires unwelcome conduct based on sex (or another legally protected category like race, age, or disability) that is severe or pervasive enough to alter the terms and conditions of employment. The employer is liable for harassment by one co-worker toward another if the employer knew or should have known about the harassment and failed to take effective action to stop it. If the harasser is a member of management and is accused of harassing a subordinate, the employer has a harder time defending the claim.

What does this mean in layman’s terms? To put it bluntly: Don’t rub against your officemate at the holiday buffet table, force a kiss on the mail guy at the bar, or grab the behind of the staff accountant on the dance floor. We can all agree that such unwelcome conduct is very inappropriate and may constitute both unlawful harassment and sexual assault. But sexual harassment encompasses a wide range of conduct that includes not just unwelcome touching but also other offensive behavior. Sexual harassment may involve stalking or unrequited love, or it may have no relation to romantic entanglements. Sexual harassment could arise from exchanging sexual banter you mistakenly thought was consensual, repeating crude jokes in the breakroom, or making denigrating comments about a co-worker’s body on social media.

If the rules for workplace conduct seem overwhelmingly complex, don’t despair. Here are a few pointers whether you’re at the holiday party or on the job:

1. Avoid excess touching. Shaking someone’s hand is fine, but giving full frontal hugs probably isn’t.
2. If you’re concerned that a co-worker may take something you want to say the wrong way, don’t say it.
3. Don’t talk about sex.
4. Don’t talk about people’s body parts (your own or anyone else’s).
5. You can’t assume it’s okay. While it may seem counterintuitive, the law does not require the victim of harassment to directly confront his or her accuser. Even when someone laughs at a sexually charged joke or participates in sexual banter, he or she may still be offended. Many times employees alleging harassment claim they had to “play along to get along.” The only way to avoid this quandary is to not engage in the suspect conduct in the first place.
6. Remember that we live in a very diverse society. People come to work with different ethnic and cultural backgrounds and life experiences. When in doubt, use common sense and discretion in your workplace interactions.

Now, go enjoy that eggnog!