Four men and a woman are at an out-of-town sales meeting. The men decide to go to a strip club, but because they don't want to be guilty of harassment, they don't invite the woman. "And they are right, there is no harassment, but there is discrimination," says Attorney Jonathan Segal.

Or take a similar situation in which a male director typically takes his male managers out to dinner for certain occasions, but fears that taking his female manager to dinner could give the wrong idea so he doesn't invite her.

Now she misses out on an opportunity to develop rapport and discuss business. That's avoidance discrimination, says Segal.

Segal's 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.

How Do You Avoid Avoidance Discrimination?

You have to find options that work, says Segal. For example, get some tickets to a ballgame and tell the female employee to invite a friend, says Segal.

Here's another take on avoidance. A male employee puts a note about a business issue on a female employee's chair and she accuses him of harassment. So he begins to avoid her.

"That may be human," says Segal, "but it's not wise. The fact that she filed a false complaint is not a defense to a charge of discrimination." The avoidance is going to turn into retaliation, which is the "biggest risk we see today," Segal says.

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Men and Women Are Different

Segal pointed out that it's OK to recognize that men and women may view situations differently. He posed two scenarios: three men and one woman are sitting in a group and the men are discussing sexual fantasies. Many women would be embarrassed by this. In the reverse situation, three women and one man and the women are discussing sexual fantasies. Some men would not find this offensive or embarrassing.

Some things, Segal says, are perceived differently by the sexes, and that has to be recognized when confronting sexual harassment.

Best Way to Assess Questionable Situations?

What can men do to determine whether a behavior is acceptable? Segal suggests that men think of women they love or respect—wife, mother, daughter—and ask, would they have a problem with this situation?

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