Unwelcome behavior that’s impactful, abusive is grounds for termination
Stress for Success
July 29, 2008


Sam has been telling off-color jokes for decades. His colleagues have always laughed at them -- until recently when one complained to his boss. Apparently, the colleague, who’d always laughed at Sam’s jokes in the past, has a daughter who recently married someone of the race about whom the joke was told. Sam was informed by his boss that if it ever happened again he’d lose his job.

Sam now needs to understand the anti-discrimination law to avoid future complaints. Last week I covered two components of it:
§ The “harasser” must be exhibiting a behavior, not just an attitude. “He intimidated me,” isn’t a behavior but rather an opinion. “He blocked my attempt to leave,” is a behavior.
§ The behavior must be unwelcome by either the target or an observer.

Here’s what the rest of the law says.

Protected groups: The unwelcome behavior must be aimed at a person because they’re a member of a protected group (age, color, disability, gender, religion, national origin, and race.) For example, employees obstructed a disabled coworker’s parking space, which could be considered harassment if they did it because she’s disabled. If they blocked another’s parking space but not because they were a member of a protected group it may be disrespectful but not legally considered workplace harassment.

Hostile or abusive: Another requirement is that both the target of the unwelcome behavior and a reasonable person must perceive the conduct to be hostile or abusive. The reasonable person standard was included in the law to compensate for the fact that not everyone interprets behaviors the same way. The courts created this standard against which to evaluate unwelcome behavior.

For example, an adult woman and man, whose families are personal friends, greet each other in front of their workplace with a friendly (versus a sexual) hug. Would a reasonable person consider this to be offensive, unwelcome, hostile or abusive? Probably not so it wouldn’t be judged illegal harassment.

Also considered is the severity and pervasiveness of the offensive behavior. Unless one-time unwelcome behavior is sufficiently severe, it must be pervasive or repetitive to qualify as workplace harassment.

Is the following unwelcome behavior severe or frequent enough to be considered harassment?
§ Arthur got drunk at a professional social gathering and made a pass at Tanya. The next day he apologized to her. He told her he was very embarrassed that he got so drunk and that his behavior was so disrespectful. From then on, he treats her courteously and respectfully.

Arthurs’s behavior probably isn’t enough to qualify as harassment unless he repeats it.

Intent vs. impact: Finally, the law doesn’t care about the “harasser’s” intent but rather the impact his/her behavior has on the target and his/her workplace. Regardless of intent, the behavior will be judged on its impact upon the work environment. “I didn’t mean anything by it” isn’t a valid defense.

Be forewarned and think before you act.

Next week we’ll look at bullying, which is pervasive but not covered under anti-harassment legislation, and sexual harassment.

Jacquelyn Ferguson, M. S., of InterAction Associates, is a trainer and a Stress Coach. E-mail her at www.jackieferguson.com with your questions or for information about her workshops on this and other topics and to invite her to speak to your organization.