How many “Fs” does it take until it’s illegal? "You don't care," says attorney Jonathan Segal, "because long before it's illegal it's unacceptable, and you should act."

It all depends, says Segal. Say someone just got some terrible news and he says, "Oh, f---." Is that harassment? No, says Segal, but it may be inappropriate. But "I'd like to f--- her"? That's clearly inappropriate and unacceptable.

Segal's blunt remarks came as part of his "Harassment Quiz" at SHRM's recent Annual Convention and Exposition in New Orleans. Segal is a partner in the Philadelphia office of law firm Duane Morris LLP.

The Other Words

Make a distinction between curse words and hate words, says Segal. The N word, the K word, the W word (if you don't know, don't ask, Segal says) are objectively unacceptable.  Likewise the C word, he adds.

'You Look Nice'

What about seemingly innocuous statements such as, "You look nice"? Are they OK in the office? It depends, says Segal, on several factors.  

  • How it was said (sincerely, or with a suggestive phrasing and a leer)
  • How the person received it
  • The frequency with which it was said
  • How close the speaker is standing
  • The situation (two people alone or in a group)

Is saying "You look nice" one time considered harassment? No. says Segal. Is saying it a second time harassment? "Maybe not, but it's stupid."

Segal asked one manager why he kept saying "You look nice" even after the woman told him it made her uncomfortable. The manager responded, "I thought she was being hypersensitive." Maybe, but wasn't saying it again and again “hyperstupid”? Segal asks.

For all employees, if you are asked to stop, stop. Segal suggests adopting a standard phrase. Some companies use this: "Red light. When you do X, it makes me uncomfortable. Please don't do it again." And the response is, "I'm sorry, that was not my intent, I won't do it again." And the employee has to mean it, Segal says.

If you want to compliment, try "sharp and professional," Segal says. Or better yet, try complimenting creativity, tenacity, or customer service. Don't focus on appearance.

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Touching

Never touch an employee when counseling or disciplining. There are certain contexts where touching is inappropriate.

However, there's another side of the coin. If an employee gets very bad news, give the employee a hug. Same for a special occasion. But, says Segal, "Monday" is not a special occasion. 

Sometimes we focus our worry on the gray areas, says Segal, but be sure to make clear what's obviously unacceptable. For example, this would include touching someone’s ***, crotch, or backside. By the way, he adds, that behavior could also be criminal.

Touching, like making comments, is subject to several considerations:

  • Place—Was it a quick touch on the shoulder, or is the arm around the shoulders?
  • Setting—Was it in public or in a private office?
  • Duration—Was the touch brief or prolonged?
  • Frequency—Was the behavior occasional or continual?

Porn, Nudes, and Pinups

Porn and nude pictures or photos are clearly out, and suggestive pinups must also be removed, says Segal.

Make sure that supervisors know that if they see inappropriate material and ignore it, it's just as if they were displaying it themselves.

Some other forbidden actions:

  • Mimicking the walk of a person with a disability
  • Displaying a swastika
  • Displaying a noose (“Yes, it's still happening," says Segal.)

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We Don't Know Who Did It

Often managers will think that when they don't know who did something (like put a noose up on the wall), they can't take any action. No, says Segal, you can and should respond proactively.

Say, "We found this noose. If you know who put it here, saw anyone with it, or heard anyone talking about it, we want to know so we can take corrective action." And you can take the occasion to remind all employees of your company policies.

In tomorrow's Advisor, we'll feature more of Segal's advice on harassment and take a look at a unique audit system that will help you spot trouble before it's too hot to handle.

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