When a Joke Is a Crime
BOSTON — It is illegal to refuse to hire or to discriminate against someone because of sex - and sexual harassment is a form of discrimination. That's what the law says: Title VII of the Civil Rights Act of 1964.
But what's sexual harassment?
It is deliberate or repeated sexual behavior that is unwelcome and not returned. This behavior can be verbal (comments or jokes), nonverbal (suggestive looks, leering), or physical.
Such behavior, by itself, is not illegal. For example, if a male stockbroker tells off-color jokes to a female stockbroker, no laws have been broken unless it makes her uncomfortable. If a supervisor cracks the jokes, the legal ground starts to shake.
Lawyers perk up their ears when such behavior influences promotions, pay, or other conditions of employment - or when it unreasonably interferes with work performance or creates an intimidating, hostile, or offensive work environment. All of that is illegal.
The definition of harassment varies by situation.
"Some people may say, 'I'm afraid that a simple compliment may get me into trouble,' " says Marcia Greenberger, of the National Women's Law Center. "That's clearly not the case."
But repeated comments about physical attributes pose a problem.
What about asking a co-worker on a date? Not to worry, unless it's done repeatedly and with pressure after being refused.
The point of the law is not a sexless, genderless workplace but one free of discrimination. "Common sense pretty much tracks the law," Ms. Greenberger says.
The six main types of sexual harassment, according to consulting firm Hubbard & Revo-Cohen, are:
Quid pro quo. Sexual favors in exchange for a job, promotion.
Hostile environment. Unwanted and offensive sexual behavior that is severe and persistent.
Sexual favoritism. A superior plays favorites and rewards only those who respond to his advances.
Indirect or third-party harassment. An employee who witnesses sexual harassment on the job.
Harassment by non-employees. Employers may be responsible for harassment by contractors, vendors, even customers if the employer:
* Knew or should have known of the conduct.
* Failed to take immediate and appropriate corrective action.
* Has control or responsibility over non-employee.
Harassment based on gender. Harassment is directed at a woman explicitly because of her gender.
Got it? Try this quiz. Is it harassment if:
1. An employee is using e-mail to send sexual jokes to other staff members.
2. A male vendor asks a female employee at the factory for dates whenever he makes a sales call, and she keeps telling him, "No."
3. A female employee makes unwelcome sexual comments to a male co-worker after work hours at an office party.
4. A male employee frequently brushes up against female employees "accidentally."
5. A male and a female co-worker repeatedly talk about their respective sexual affairs and relationships during break around the office coffee pot.
6. A male supervisor compliments his female employees on their appearance.
7. A cashier in an eatery in the building greets each customer by calling him or her "Honey" or "Dearie."
8. At the end of a staff meeting, a male manager says to two female secretaries, "Why don't you two girls clean up this room."
(1) One instance does not meet the legal definition of sexual harassment, but repeated instances could. (2) Probably yes. Employee or not, the behavior is unwelcome and repeated. (3) A one-time occurrence is not sexual harassment. (4) Yes. (5) No, if no one is around and the talk is consensual. (It could be if a passerby finds it offensive.) (6) No. (7) Probably not, assuming the comments are directed at both sexes and aren't intentionally derogatory or degrading. (8) No, but it is sexist.
Source: Hubbard & Revo-Cohen