Thursday, March 9, 2017

In Search of the Reasonable Person

Allegations of sexual harassment continue to attract media attention and commentary, including ours.  As we review developments, we note that a wide variety of workplace behaviors are being challenged and scrutinized.  Legally actionable sexual harassment takes many forms, from the classic quid pro quo claims included in the Sterling Jewelers case, to the innuendo claimed in Gretchen Carlson’s suit against Roger Ailes and Fox News, to inappropriate greeting cards.  Last week we learned that hugging, if it is unwelcome and pervasive, can create a hostile work environment, and that a University president can be forced to resign by allegations of inappropriate “abrazos,” or embraces.

Sexual harassment in the workplace is conduct or communication of a sexual nature that is unwelcome or uninvited, and that has the purpose or effect of substantially interfering with the victim’s working environment or creates an intimidating, hostile, or offensive working environment.  For decades now, the courts have been deciding sexual harassment cases by asking how a reasonable person would assess the behavior complained of.  Would a reasonable person conclude that the conduct or communication is of a sexual nature?  That it’s unwelcome or uninvited? That it’s sufficiently severe and pervasive to create a hostile environment? Sexual harassment must be both objectionable to the victim and objectionable to a reasonable person to be legally actionable. 

As managers, HR professionals, in-house counsel and employment lawyers deal with complaints and allegations of sexual harassment, the reasonable person should always be their guide.  That’s sometimes easier said than accomplished, however, so we’ve developed some tips:

Don’t assume that you are a reasonable person. Most of us consider ourselves pretty reasonable, and it’s tempting to assume that if something is (or isn’t) offensive to us, our reaction is an adequate assessment tool.  We are, however, all different. We are different ages, with different backgrounds and values and different levels of sensitivity.  What offends or threatens us depends on multiple factors.  It’s important to recognize the limits of our own perspective, and to seek the perspective of others as we decide whether conduct fits the definition of sexual harassment.

The reasonable person considers all the facts and circumstances surrounding the alleged harassment.  Unwanted hugs from a peer may be very different from unwanted hugs from the president of the company.  A hug at a social gathering, in front of lots of people, may be different from a hug in a dark, deserted hallway.  The EEOC and the courts tell us to consider the context of the alleged harassment, including its frequency and severity and the relative positions of harasser and victim.

Think about a “reasonable victim.”  The Supreme Court has said that it is reasonable to assess alleged harassment using “[c]ommon sense, and an appropriate sensitivity to social context . . . to distinguish between” innocuous behavior and “conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.” (Emphasis added.) The identity, position, background and circumstances of the victim can and should be considered.

Consider the “reasonable woman.” Although the concept has not been widely adopted or tested, some courts have said that it is appropriate to apply a “reasonable woman” standard in assessing conduct directed toward a female victim.  The Ninth Circuit and Third Circuit have done so, recognizing the difference between male and female perspectives on sexual harassment. In 1993, in Ellison v. Brady, the Ninth Circuit explained that the traditional “reasonable person” standard tends to be male-biased and systemically ignores the experiences of women. These are the only circuits to expressly apply a reasonable woman standard, but in both it continues to be recognized.

Remember your obligation to both the alleged victim and the alleged harasser.  The reasonable person begins his or her assessment of harassing conduct without bias.  Neither the person complaining of harassment or the person being accused should be believed or disbelieved as an initial matter.  While the credibility of victim or harasser may be crucially important, or even decisive, it must be determined carefully and can’t be based on shared history, gossip, or unsubstantiated feelings.

There are few bright lines and fewer perfect formulas available to those charged with investigating, assessing, and responding to complaints of sexual harassment.  Given that, it’s comforting to remember that reasonableness is also the standard by which an employer’s response to harassment will be judged.  Employers must take all reasonable steps  to prevent harassment, and must respond in an “immediate and appropriate” fashion when harassment occurs or complaints of harassment are made.