Q&A: Are teasing or offhand comments considered workplace harassment if they are not severe or pervasive?
Are teasing or offhand comments considered workplace harassment if they are not severe or pervasive?
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). Generally, the more severe and offensive the conduct is, the less frequently it has to occur before it constitutes sexual harassment. In fact, courts have found that sexual harassment can occur with a single offensive act, if the conduct is sufficiently severe (e.g., acts that include physical contact). On the other hand, less offensive acts, if repeated frequently will also constitute sexual harassment.
One of the best practices is to have a clear policy that prohibits workplace harassment and inappropriate workplace behavior. By prohibiting inappropriate behavior as well as unlawful harassment, an employer can take disciplinary action when an employee’s conduct is offensive but does not rise to the level of unlawful harassment. When an employer has a professional conduct policy in place, if an employee complains about inappropriate behavior, like rude comments or an off-color joke – the employer can take action for a policy violation. Employees should know they can report inappropriate behavior even if it’s not unlawful harassment. It’s better for employers to address offensive or inappropriate conduct before it becomes unlawful harassment than to ignore a complaint and end up defending a discrimination claim.
Therefore, it’s important to heed employees’ complaints about inappropriate sexual comments and derogatory jokes about gender. Even if coworkers’ sexual comments or jokes aren’t directed toward a specific employee, you can still be liable for creating a sexually hostile work environment. You might view employees’ generic sexual jokes and comments as merely childish and immature behavior, but they have the potential to lead to a messy sexual harassment suit. Responding promptly to any complaints about inappropriate sexual banter can mean the difference between winning and losing a hostile environment case.
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