Stop Harassment - Even When It's Legal

03/05/07

The Case
“He complained to you because you’re the designated contact for harassment complaints?” asked Jim, the CEO.

“That’s right,” responded Charlene, the HR director.

“I suspected he was gay,” said Jim. “But I didn’t know he was out of the closet.”

“That happened a few months ago. And ever since then, he says, some people here have created a hostile environment for him. I did some investigating, and I’d have to agree with him. One of the truck drivers even tried to tie his hands together with panty hose. And they are always leaving crude drawings in his locker.”

“Did you tell him,” said Jim, “that in this county in Florida there is no law against harassment based on sexual orientation? And no federal laws protect him?”

“I did,” said Charlene, “but he didn’t seem to believe it.” Then he said, “So you condone the treatment I get here at work?” I said, “Of course not. We’ll put a stop to it somehow.”

“Good,” said Jim. “I do want to stop it. But I’m not sure on what basis. Maybe we can create our own policy prohibiting harassment based on sexual orientation. Let me talk to our lawyer about it.”

The Analysis
There are two significant questions here. The first is whether the company has any legal obligation to intervene and take action to prevent the harassment to which this gay employee has been subjected. The second is whether, even if the employer has no legal duty, it may have an obligation to take action to stop the misconduct anyway.

The answer to the first question is … yes and no (a typical lawyer answer). Charlene and Jim are correct that this employee does not have legal protection from harassment or discrimination, based on sexual orientation, because sexual orientation is not a protected category where this employer is located. Moreover, sexual orientation is not a federally protected category and the majority of states do not have laws that provide such protection.

However, this employee could have an argument that he is being subjected to sex discrimination or gender harassment. At least a couple of courts have ruled that plaintiffs in very similar circumstances had a cause of action. Allowing the misconduct to continue in this case would then carry an element of risk, since it is possible that this employee will be able to raise legal claims against his employer. The safest course of action would be to treat this like any other harassment complaint—investigate, discipline appropriately (if necessary), and follow up with the employee to ensure that the misconduct stops.

Consider Your Responsibility
Even if we assume that the employee has no basis for a lawsuit, does this company nontheless have an obligation to take corrective action? I think that it does on the basis that a proactive employer should want to provide a safe and harmonious workplace for all its employees whether or not they belong to a legally protected category.

Why? Because no employee should have to come to work each day and submit to derogatory treatment, abuse, unwanted comments, or touching as a condition of employment solely because the employee is somehow different from his or her co-workers. If that’s not enough reason, here’s another one: A harmonious workplace promotes retention and encourages the growth of a more cohesive workforce. And a cohesive workforce tends to be more productive. From a business perspective, that’s what it’s all about.

Take the High Road
If this employer has a no-harassment policy, should it add sexual orientation to the protected categories the policy lists? If sexual orientation is not a legally protected category in the state or county where the employer is located, it has no legal obligation to do so. The employer could, however, choose to do so as a way of promoting a progressive, non-discriminatory corporate culture. It’s strictly a matter for the employer to decide.