Employment & Labor Insider

The recent proposed Enforcement Guidance on Harassment in the Workplace published by the U.S. Equal Employment Opportunity Commission has some good recommendations for harassment training topics. One recommendation from the EEOC is to train employees to avoid "borderline" behavior that may not technically be unlawful but is close enough to the line to put them at risk of either crossing that line, or being credibly accused of harassment.

What are the behaviors that, although legal, put you at risk? Here are my top five. (I saved the worst for last.)

No. 5: Expressing your opinions too freely at work. I'm not kidding. Opinions on the weather or the best place to go to lunch are one thing, but certain subjects are NSFW.* Your opinions about these topics are best shared only with trusted personal friends and family members -- and away from the workplace. Twenty years ago, some dangerous subjects for office chit-chat were affirmative action, immigration, and whether women should work outside the home. Nowadays you can add opinions about gender identity and nursing moms who work outside the home, to name a couple. 

*Not Suitable For Work. (You probably knew that.)

I am sure at least one reader will ask me, But what about the First Amendment? If you work for the government, the public schools, or a state university, you may indeed have a First Amendment right to express your opinions. But in the private sector, you don't. So don't.

No. 4: Telling sexual, racial, ethnic (etc.) jokes, but only to people who will think they're funny. You probably know that a valid harassment claim requires that the behavior be "unwelcome." So you should be fine here, right? Because you're making sure you tell your jokes only to co-workers who will slap their knees and laugh uproariously, while tears stream down their cheeks.

There are at least two problems with this. First, you never really know how someone will take a comment you make. You may think the co-workers you're joking with will love your joke, but it's possible that you were wrong about somebody. If your joke is unwelcome to one co-worker, then you have probably violated your employer's harassment policy.

Second, what if a co-worker who isn't part of your crowd overhears you? And finds the joke offensive? Or what if one of the co-workers who loved your joke repeats it to the wrong person? And what if you really mess up and put your joke in an email? An email that gets forwarded to a bunch of people you don't even know, some of whom think your joke is offensive? And there is your name, plain as day, at the bottom of the thread as the original sender.

Finally, under some employer policies, telling an "inappropriate" joke could be a violation of the harassment policy in itself, even if everyone in your audience thought it was a hoot.

I guess that was three or five reasons, not two.

No. 3: Using words with sexual meanings as expletives. A female co-worker makes you mad, and so you call her a "b**ch" (or worse). Or a guy makes you mad, and you call him a "d**k." Or you're just mad at the world and shout, "F***!" If you get accused of sexual harassment for using words like these in this context, I will argue to the death that you are not guilty. In my opinion, in context, these are all just regular old cuss words. Not very nice, but not harassment.

But who cares what I think? The problem with these words is that they have sexual connotations, and there have been actual lawsuits in which people were accused of harassment for using words like these and in this context.

The moral? When you must cuss, use cuss words that don't have any sexual connotation and that are not associated with one particular sex. "Hell" and "damn" are usually safe. (Pardon my French.)

No. 2: Complimenting a co-worker on her appearance. If you're a woman, and you're complimenting another woman on her appearance, you may be ok. But if you're a man who's complimenting a woman on her appearance, you're taking a chance. And vice versa. A lot will depend on what type of compliment it is, and the way you express yourself. "Whoa, Mama, you sure look hot to me!" is likely to be a problem.

The simplest, easiest way to avoid being accused of harassment is to not compliment co-workers on their appearance. If that's too hard, then follow my "Zone of Safety Rule." If you must compliment a woman, make sure it's about something above her shoulders ("Nice earrings, Bella!") or below her knees ("Love those Crocs with the Jibbitz charms, Katie!"). Pretend like anything between the shoulders and knees doesn't exist, no matter how pretty her blouse is. If you're complimenting a man, keep it above the waist ("Sweet bow tie, Zack!") or way below the belt ("Awesome shin guards, Jayden!").

And look them in the eye when you say it. Keep your tone of voice neutral. Don't sound sleazy.

No. 1: Having a consensual extramarital affair at work, and especially if you're the boss. I'm assuming male boss and female subordinate because I've never seen it happen the other way around. It certainly could, though. In my years of representing employers in sexual harassment cases, this is THE #1 risky "legal" behavior that can get one partner to the affair accused of sexual harassment after the affair goes bad. (If you're in a state where adultery is still a crime, even a consensual affair may not be legal. But it still wouldn't be harassment.) 

You may think single co-workers dating could be just as risky, but I haven't seen that it is. My theory is that affairs are more likely to blow up because three or four people are involved (the paramours and one or more spouses, not to mention kids and private eyes), all are highly emotional and vulnerable (well, maybe not the private eye), and some are very, very angry and hurt. When two single co-workers date, and even when they break up, you don't have all of these complications.

Risky behavior bonus: Being touchy-feely. If you're the touchy-feely type, try to stifle that impulse at work. And under no circumstances should you give shoulder or back rubs to your co-workers.

Hat tip to my law partner Jill Stricklin and also several of the attendees at our Winston-Salem Regional Workshop (held on Wednesday) for today's topic!