Sexual Harassment: Reasonable Person/Victim Standard

This seems like a good time to remind everyone that love is wonderful….except when it occurs in the workplace. Sexual desire is NOT the typical driver for a sexual harassment claim, it can be an element. In fact, the definitive case for who determines what sexual harassment is, was based on a love interest at work. Or maybe it was just a stalker at work. You can take a look at the facts and decide.

Who decides what sexual harassment is?

The case that we look to for an answer to this question is Ellison v. Brady. A brief recap of the story is that Kerry Ellison worked for the IRS as a revenue agent. Ellison had worked there for around two years when Sterling Gray, a married male co-worker, asked her to lunch.  She accepted. Shortly thereafter Gray began pestering Ellison and, eventually, asked her out for drinks. Rather than immediately saying she wasn’t interested, she “declined, but …suggested that they have lunch the following week.” Gray continued to ask her out, started writing her notes and telling her that he was “watching” her. Ellison felt like a stalking victim and it immediately impacted her ability to focus on her work. 

ALLEGED HARASSER’S VIEWPOINT

Brady’s notes that led the court to observe that, “Analyzing the facts from the alleged harasser’s viewpoint, (the defendant) could be portrayed as a modern-day Cyrano de Bergerac wishing no more than to woo Ellison with his words.” 

Gray “even offered in one of his ‘love letters’ to leave her alone if she wished.” 

UNOBJECTIONABLE VS. OFFENSIVE

However, the US Supreme Court stated that “conduct that many men consider unobjectionable may offend many women. A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a “great figure” or “nice legs.” The female subordinate, however, may find such comments offensive; men and women are vulnerable in different ways and offended by different behavior. Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object”; the characteristically male view depicts sexual harassment as comparatively harmless amusement.

REASONABLE WOMAN OR REASONABLE MAN

The court continues in its statements to say that there is a case for  ….”hostile environment sexual harassment when she alleges conduct which a reasonable women would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” 

The court further clarified that they would look at a “reasonable man” standard as well. 

Today’s Viewpoint

We now look specifically at a “reasonable person” and, here in California, we look at a “reasonable victim” standard. Keep in mind that the facts in this case started in 1984 and the decision occurred in 1990. We can clearly say, “We’ve come a long way, baby” in this area.  We know that intent doesn’t matter. Harassment is defined by how the actions or words are perceived by the victim.

If you haven’t started your 2019 Harassment Prevention Training yet, give me a call (760-218-6960) or send me an email and let’s get it scheduled.

Note: I am not an attorney, I don’t play one on TV or on the Internet. This is not legal advice. These are HR Best Practices. If you need legal advice, contact your employment law attorney.