It seems that you can’t open a paper or watch a newscast without encountering another sexual harassment bombshell. Despite the broad coverage, however, there’s still confusion about the difference between sexual harassment, sexual assault, and sexual battery.
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During our podcast, recorded live at BLR’s Advanced Employment Issues Symposium in Las Vegas, BLR®—Business & Legal Resources Media Managing Editor Steve Bruce asked employment law attorney Mark Schickman to clarify the definitions for us.
Mark has been practicing employment and labor law for 40 years and has successfully litigated almost every type of employment case. He provides employment advice to employers across the country, speaks and writes on litigation and employment law nationally, and is a member of the American Arbitration Association’s select panel of employment law arbitrators as well as editor of BLR’s California Employment Law Letter.
Here’s an excerpt from the podcast (listen to the entire podcast—E47—here.)
Steve: You’ve mentioned harassment and assault a couple times. Can you clarify for us what the distinction is?
Mark: Sure. First of all, a threat of a touching is an assault, and a touching is a battery. So, let me just say that that’s a little bit of Law 101.
It’s really important when we identify workplace harassment, we’re talking about more than what’s been hitting the headlines recently, which is really sexual assault more than it is sexual harassment.
What we are hearing about is making sexual advances with a threat—that you won’t get the next part, you won’t get the next job if you don’t succumb. An example, I used to give is a manager who goes to a subordinate and says, “I’ve got two annual reviews for you. I got this medium one I can give you now, or this excellent one that I’ll give you in my hotel room if you want to come up.” These are classic examples of what’s called quid pro quo harassment. “This for that” harassment.
When we think about this whole notion—You will allow me to have my way with you with sexual touching—this is an assault, right? And if you do, there’s a reward for you in the workplace. That’s what I’m talking about as an assault.
On the other hand, if you’ve got a workplace where anytime a woman comes on the production floor all the guys are going to tell the raunchiest jokes they know in order to gross that woman out, that’s an example of sexual harassment.
Or a supervisor having nude pictures on the wall so that when workers need to come in to talk with the supervisor, they’ve got to see a Playboy photo or a busty, bikini-clad babe on the wall, that’s an example of harassment.
Or a woman knows that every time she’s going to pass a certain supervisor, that supervisor is going to make some kind of sexual crack about her, and because of that this woman is not going to walk that corridor if she sees that guy over there. She is going to go the long way around the building in order to get where she wants to go because she doesn’t want to be confronted that way. It’s harassment, because it creates a pervasive attitude, not assault.
Or an executive who is dating a subordinate. Or an executive—typically he, but it could be a she as well—who when going out to meetings only brings members of the same gender or ignores members of the other gender when they come.
Or every time a woman passes by a guy who’s going to stand up and block the pathway so that she’s got to brush up against him, or kind of slither out of his way, these are all examples of harassment. It has to be a serious harassment or a pervasive harassment.
If you look at what’s really going on, there’s a great deal more of that harassment in the workplace than there is the sexual assault type. That’s why I say we need to keep that distinction clear, especially looking at what’s going on in the news today where everything that we’re hearing about as sexual harassment is really a sexual assault. Take the photo of Al Franken as a joke putting his hands on the breast of a sleeping coworker and taking a picture of that—it’s an assault. He’s got no business putting his hands on somebody else’s breasts. Hard to make it more straightforward than that.
Again, we’ve got to be logical about this. Saying to a woman once, “Man, that’s a great dress,” is fine. If you do it every single day, so Monday, “That’s a great dress”; Tuesday, “Man, you look great in those shoes”; Wednesday, “You ought to wear high heels more. You look wonderful in them”; Thursday, “You smell great today”; any one of those comments, once in a month, [is] probably okay. Doing it every day, it becomes pervasive harassment.
Steve: Okay, thank you. Now, if HR wanted to do an audit of the company practices or some kind of a survey to see about the harassment, should they involve an attorney?
Mark: The danger over here is, in the absence of having an attorney involved, what you discover, and what you find, you might have to produce in a later lawsuit. So, a company does this kind of audit, finds out that 25% of the women there think that they have been harassed. The next month, one woman brings a harassment claim, and it’s in court, so the court says, “Okay, you did a study. Give me the study.” There’s a danger there if the company has got to produce. I mean, “Did you know that 25% of your workforce claims they were harassed?” “Yes, I did.”
As of its 23rd year, BLR’s Advanced Employment Issues Symposium is being renamed HR Comply. By any name, it is the nation’s leading human capital management conference for HR professionals, executives, and in-house counsel. The superior content and expert presenters will help you get ahead of workplace policy updates with a one-stop, all-bases-covered overview of breaking updates and proven best practices. Learn more about HR Comply 2018, being held in Las Vegas next November.
