The sexual banter in the most recent presidential campaign initiated the dialogue about our societal norms and whether sexual innuendos constitute harassment, or if they simply constitute “locker room talk.” In many ways, the actions of our President, and other elected officials has sparked the “#MeToo” movement permitting many workers, throughout every industry, to speak out against harassment. More recently, news of campaign workers being harassed has sparked a new awareness that even in the world of politics, there is no immunity for the failure to protect employees.
In response to this movement, many employers, including political campaigns are instituting, or should institute, harassment training or awareness for its workers. But what is considered harassment? Are jokes and innuendo enough? This article discusses what courts deem to be problematic in the workplace.
What is harassment, and when does it cross the line?
The legal definition of sexual harassment in Illinois, similar to the definition under the federal Title VII, includes “any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.” (775 ILCS 5/2–101(E)). Even conduct that has no sexual content may be regarded as sexual harassment, and actionable as sex discrimination, if it is directed at worker because of their sex and is sufficiently serious to alter terms or conditions of their employment. (Civil Rights Act of 1964, §703(a)(1)). For example, if an employer turned down the heat at a female employee’s work station in order to make her uncomfortable, that would be actionable sex discrimination. Carr v. Allison Gas Turbine Division, 32 F.3d 1007, 1011 (7th Cir.1994).
Sexual conduct does not have to be targeted or malicious in order for it to constitute harassment under the law. An official U.S. Department of Labor pamphlet defines harassment as including instances where someone “made sexual jokes or said sexual things,” with no requirement that the jokes be insulting or even misogynistic. A Seattle Human Rights Department pamphlet gives “the secretary who was frequently told sexual jokes by her co-workers and supervisor” as an example of sexual harassment. A Hanson, Massachusetts harassment policy for city employees defines sexual harassment as “any unwelcome action, sexual in content or implication, in the workplace that includes . . . sex oriented `kidding´ or `jokes’ [and] sexually suggestive objects in the workplace.” Other examples of prohibited sexual harassment also include, but are not limited to, innuendos, cartoons, drawings, emails, employee clothing with sexual drawings or slogans, or comments of a sexual nature, and displays of magazines, books, or pictures with a sexual connotation. Even a male and a female co-worker repeatedly talking about their respective sexual affairs and relationships during break around the office coffee pot may be classified as sexual harassment if a passerby finds it offensive.
What type of humor is never appropriate in the workplace?
Certain types of comments, jokes, and pranks are never appropriate in the workplace and should not be encouraged or tolerated. Many topics are legally mandated as “off limits” in the workplace, and your employees should be prohibited from making innuendos, comments, or references about:
- Sexual orientation or acts
- Religious or political practices or beliefs
- Race or ethnicity
- Social status, gender, or age-related stereotypes
- Physical appearance and attributes
- Weight-related issues
- Disabled persons, or persons with any form of diminished capacity
- Any other topic that targets an individual or group as being inferior
But everyone jokes, what’s the big deal?
Employers are often lulled into a false sense of security in thinking that jokes in the workplace are not a problem if no one complains. This is simply not the case. If an employer knows or should have known about offensive conduct, they may be found liable for their failure to act. The EEOC recently concluded that an employee’s allegation that she was “sexually harassed by offensive jokes-of-the-day circulated to her and her co-workers, and by the Supervisor’s praise [in a department meeting] of the co-worker circulating the jokes” was sufficient to state a claim under Title VII. See Rippey v. Danzig, 1999 WL 302415 (holding that liability may be found even when jokes are not directed at the employee’s expense.)
Courts are often hesitant to act as de facto human resources offices, but they will intervene when employers fail to address allegations of harassment. In today’s environment, jokes or water cooler talk should be treated with caution, as they can lead not only to legal liability for employers, but also to unflattering press. Employers should have clearly defined policies and procedures regarding workplace harassment. Training both employees and managers to recognize jokes or comments that “cross the line,” can also assist employers in responding to complaints. You should remind your employees of your harassment policy and zero tolerance policy; and if you don’t have one, you should immediately address it with your human resources office.
The attorneys at Tristan & Cervantes have assisted clients in navigating employee complaints of harassment and in implementing procedures to reduce risk of employer liability. Please contact our office if you or your organization has questions related to your employment practices via email at htristan@tristanlegal.com or call us at 312.345.9200.
