A woman walks into work and a male mid-level manager, from another department, smiles and says "good morning." She later gets a voice mail message from him saying "you know, I hope this doesn't offend you, but i just wanted to say you have a nice smile and it really started my day off on a positive note."
I've always thought that in order for a comment to be considered harassment,
a) the receiver has to say "no" in some way - no response constitutes acceptance of the comment.
b) the commentor must continue to make such comments.
c) as long as the comment is not job-related and commentor has been asked to stop, this could be construed as harassment.
Would this exchange constitute harassment?
The quick response is no, it does not.
The reason is not so quick:
This exchange, alone, does not amount to illegal workplace harassment. For workplace harassment to be illegal under federal law, the person who has been offended must prove three things:
1) The harassment must be based on a characteristic protected by law (e.g., gender, race, color, religion, national origin, age or disability). A comment that is sexual in nature usually satisfies this requirement.
2) The harassment must be "unwelcome." "Unwelcome" means the person regarded the conduct as undesirable and did not solicit or incite the conduct. A person is not required to complain or say anything at all to satisfy this requirement, but the reaction will be examined as evidence of whether it was welcomed or not. (As a separate issue, a company can escape liability for a manager's harassment in some cases if the company has a policy in place encouraging employees to report harassment and an employee fails to do so.)
3) The harassment was sufficiently "severe or pervasive" to create a hostile, intimidating or offensive work environment, to unreasonably interfere with a person’s work performance, or to otherwise adversely affect the terms, conditions or opportunities of a person’s employment.
In this scenario, the conduct is not sufficiently "severe or pervasive" to meet the third part of the test. The EEOC maintains that anti-discrimination statutes are not a "general civility code." Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. This type of conduct may be inappropriate and should be discouraged by the employer's zero-tolerance harassment policy, but it is not illegal.
How would you have handled it, if the person had complained to you?
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2 comments:
Since you asked how someone would have responded, i will respond. I honestly would have told the manager to stop making non-work related comments to that individual, and if you can at all help it, do not contact her in any way unless it is strictly work related. Small talk with people is generally fine, but please avoid this person.
I would have been glad to know that I have a positive effect on others in my workplace and the email was positive and non-threatening. Let's not get carried away with being politically correct and become robots. People need to hear something positive like this once in a while. We spend alot of our day at work and shouldn't have to walk on egg shells.
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