Tim White loved to flirt with the ladies in the office. That was just his style. He would wink at the women, tell them they looked nice, and tap them on their shoulders while nodding his approval. He talked loud to impress the women and he even told jokes that were almost inappropriate. He enjoyed speaking to women at close range.
Is this behavior “just obnoxious” or is it “illegal conduct”?
Sometimes it can be difficult to differentiate between “just obnoxious behavior” and “illegal conduct”. Because it is difficult, many employers write it off as “That’s just Tim being Tim.” Therefore, the employer simply ignores the behavior; which could cost the employer in the future.
How to Fix the Mistake
The factors that differentiate between “just obnoxious behavior” and “illegal conduct” are:
- Whether the conduct results in a tangible employment action; and
- Whether the conduct is unwelcome and can be considered objectively hostile.
As for (1), it is a good idea for employers to keep an eye out for seemingly unusual employee behaviors and actions. Inappropriate actions should be heavily documented.
As for (2), it is recommended that employers seriously consider and investigate any complaint, report, or mention of conduct or behavior of which an employee feels uncomfortable.
“Prevention is the best tool to eliminate harassment in the workplace. Employers are encouraged to take appropriate steps to prevent and correct unlawful harassment. They should clearly communicate to employees that unwelcome harassing conduct will not be tolerated. They can do this by establishing an effective complaint or grievance process, providing anti-harassment training to their managers and employees, and taking immediate and appropriate action when an employee complains. Employers should strive to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed. Employers are encouraged to inform the harasser directly that the conduct is unwelcome and must stop. Employees should also report harassment to management at an early stage to prevent its escalation. https://www.eeoc.gov/laws/types/harassment.cfm
Because there is such a thin line between “just obnoxious behavior” and “illegal conduct,” employers should prevent questionable conduct, behaviors, and actions to avoid liability.
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