ACTUAL CASE HISTORY: Danny arrived at work one morning, newspaper and cup of coffee in hand, to find two men in suits waiting impatiently in the reception area. He was told they were waiting to see him, about a “personal matter.” Once in the conference room, Danny learned they were there to arrest him, and to bring him “downtown.” He was then read his rights and told, “No, there’s no time to call your boss, your lawyer or your wife. You’ll be permitted a phone call later.” He was then frisked for weapons, and handcuffed. Yes, handcuffed.
After seven hours at central booking, Danny was ushered into a waiting bus with 17 other alleged criminals – none wearing suits or ties – for the ride “downtown.” Once there, Danny was fingerprinted, photographed and arraigned before a judge for assault, aggravated harassment and sexual abuse…in the 3rd degree. He entered a plea of not guilty on the advice of a court-appointed lawyer, and was released without bail at 10 pm. Apparently, that flirtation, those emails, the stolen hugs and kisses, were more serious than he had imagined. Danny thought her “no” was a tease.
Danny’s job was now tenuous. His career was suddenly questionable. His ability to coach his daughter’s softball team was probably over. His wife asked him to consider a separation to “think things over,” and insisted he immediately take an AIDS test. Danny was hoping – and, praying – that this was nothing but a bad dream. It wasn’t. Like it has for many others, this had become Danny’s reality, just as it has for many people, most men, some innocent, some guilty, many somewhere in between innocent and guilty.
LESSONS TO LEARN: Like it or not, these days everyone’s career – especially if you’re a man – is vulnerable to allegations of sexual harassment. In the course of our counseling and representing “both sides” in these matters – men and women – we’ve seen jobs, careers, and even marriages lost. The stakes are so high, and the effects can be so devastating…is there any way to protect yourself? Over the years, we’ve come upon certain insights that may help you. Read them over, and bear them in mind.
WHAT YOU SHOULD DO: First, consider what “sexual harassment” is. Generally, it is either (a) unwelcome sexual advances by one person to another, or (b) the repeated use of sexually suggestive words or images. Notice the four critical components:
- Graphic Words and Images
Second, eliminate or minimize these four components, by following the twenty-one common-sense safeguards relating to them, and you’ll eliminate or minimize your chances of being the target of sexual harassment allegations:
1. Jokes, stories and images that have anything to do with sex acts or body parts are to be avoided, to the extent possible.
2. Assume that every “advance” you make – perhaps other than a single, polite telephone call to a person’s home – is unwelcome.
3. If public bantering is common, seek public confirmation that no one is offended. There’s nothing wrong with once in a while asking “Is anyone offended by these jokes?”
4. Always keep in mind that perceptions differ, markedly:
- What you consider funny, others may consider degrading.
- What you consider casual, others may consider intrusive.
- What you consider playful, others may consider overbearing.
- What you consider “plain talk,” others may consider gutter language.
- What you consider “tough,” others may consider hostile.
5. Err on the side of caution and politeness: a simple rule to follow is to pretend your grandmother is in the room.
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6. It is wise to hold any one-on-one meetings with the opposite gender in rooms with open doors, or glass walls, or otherwise open or accessible to others.
7. Never, ever use company email to transmit amorous, sexual or intimate information.
8. Any meeting in which a member of the opposite gender will be reprimanded, warned or terminated would best be attended by another member of that other gender.
9. If the topic of a meeting includes discussion of sexual matters – such as a report of sexual harassment, or an employee’s upcoming need for time off for certain surgeries – it is best to have both genders present in the room.
10. Bear in mind that sexual harassment can be between the same gender, and relate to sexual identity, and orientation.
11. It’s a good idea to review your company’s rules and policies regarding both dating of colleagues, and reporting of harassment. You may just find that something you’re doing or contemplating could result in your being fired. These can usually be found in employee handbooks and company codes of conduct.
12. To some people, the repeated giving of gifts can be interpreted as advances.
13. Don’t date colleagues. But if you really want to, make a request only once…if you don’t get a “yes” the first time you ask, don’t ask again; second and third requests could be considered harassing.
14. Never date subordinates. The law says that a request for a date by a boss to a subordinate, by the power-dynamic of the very relation, is by definition presumably harassing. If you want to date a subordinate, or your boss, consider first changing departments or employers.
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15. After alcohol consumption, people are less inhibited, and after engaging in alcohol-induced intimacy may suffer great remorse. Indeed, some argue that if you know a person has imbibed, you must presume there is no “voluntary” agreement to engage. Likewise, consumption of alcohol may impair a person’s ability to judge voluntary from involuntary conduct. In general, limit social contact with one colleague of the opposite gender if alcohol is present. Certainly avoid all intimate contact with a colleague after imbibing alcohol.
16. If you do date colleagues, try to socialize in group settings, or at least with another couple, at least in the beginning, to attest (if necessary) that the attraction and relation were mutual and consenting, not one-sided and coercive.
17. If you do date colleagues, any apparently “welcome” response to an “advance” you make should be “checked” with language such as “Are you sure you would like to do that?”
18. If you date colleagues, bear in mind that many harassment complaints take place when (a) one party refuses to leave his or her spouse, or (b) when one party seeks to end the relation. If either dynamic is present, consider gathering evidence of the consensuality of the relation, including time spent together in the presence of others.
19. If anyone does accuse you of sexual harassment, immediately obtain legal counsel with experience in these matters, but fully cooperate with your employer’s investigation of the matter. Never, ever seek to contact the person who’s made the allegations during the investigation; that will be viewed as interference, and cause for immediate firing.
20. Understand that an employer must separate the accuser from the accused to afford time and opportunity for an investigation. Cooperate with any such efforts.
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21. Understand, too, that it’s not at all unusual for a company to dismiss a person who’s been accused of harassment for other, quite minor, infractions, such as use of company email for personal reasons, or submitting petty cash vouchers late. This is a common practice that employers apparently believe protects them from claims of not taking the accusation seriously, while at the same time not taking a clear position with respect to the accusation. Sort of an easy way out.
No one is perfect, and no method of avoiding problems is fool-proof. That being said, following these sensible precautions will decrease the chances of your being hurt by such an allegation. Since any allegation of impropriety is to some so easy to make, the danger is so great, and the possible effects so devastating, every reasonable effort should be made to proactively protect yourself.
We offer a Model Memo to help you Defend Yourself if Accused of Harassment. To obtain a copy, simply [click here].
One special focus of SkloverWorkingWisdom™ is “Risk Limitation.” It’s one of “The Three R’s” to be sought: while we seek [R]ewards for our efforts, as we take on new [R]esponsibilities, we must always seek out [R]isk Limiters, as well. In each transition, in each step, at each moment, we must try to locate the risks of the moment, and seek to limit them, or their possible effect, on us. Avoiding claims of sexual harassment – thereby limiting risk to your career – is 99% up to you.