Same Race, Same Sex, Same Harassment

April 1, 2003
By now, employees and their supervisors are well-schooled on the ins and outsof traditional harassment--what it is, how to prevent it, and what to do if itoccurs. But what if the case involves a woman saying inappropriate things toanother woman, or a Hispanic person making charged comments to a Hispaniccoworker? The issues surrounding same-sex or same-race harassment haven’treceived much emphasis, and employers are paying the price. Lynn Lieber, CEO ofthe San Francisco-based training firm Workplace Answers, offers advice.
What are the kinds of harassment that are less obvious?
Male-on-male, woman-on-woman types of harassment haven’t really been[addressed], nor has same-race harassment. And coworkers are even less likely tocome forward with those types of claims than they are with your pure male-femalesexual harassment.
What does male-on-male harassment look like?
Male-on-male harassment could be something as simple as a man sending e-mailjokes about women: "When my wife wants to make dinner, she calls forreservations." If a man sends that to another man, and it deals with an issueabout women, that could be unlawful harassment. They don’t think of that. Theythink, "I’m safe; I’m sending this to a man. I wouldn’t send it to a woman." But a reasonable man could be offended by gender-related comments or jokes in theworkplace. A lot of employees don’t know that’s illegal harassment. When Ido training, I still get men who say, "What’s wrong with [what I said]? It’sjust the guys here." Well, one of those employees could find thatinappropriate.
What does female-on-female harassment look like?
It’s similar. For example, a bunch of female coworkers are gathered and oneof them begins talking about sex, or about a guy’s cute butt, and it makesanother woman uncomfortable. She’s offended by it. That’s same-sexharassment.
And finally, can you give examples of same-race harassment?
In many cases of same-race harassment, the employees are using their racialbackground or national origin as a way of relating to each other. One client Iworked with had a situation where the [employees] had a "slamfest," whichwas a contest to see who could give the best put-down. These put-downs got intoracial slurs and ethnic slurs. When you talked to the guys--they were mostly men--this was a way for them to bond. But then you have one person who’soffended by that. In one case, we spent $500,000 in attorneys’ fees and thecase was settled for $275,000. And it was about that kind of joking in the workplace--that it created a hostile environment. And the person who complainedwas an African-American employee.
How can employers identify talk that borders on harassment?
The standard is: What would a reasonable person in the position of the victimfind appropriate or inappropriate? The law takes you as a reasonable man, or areasonable woman, or a reasonable disabled person, or a reasonable homosexualperson. So when you’re dealing with someone, you have to put yourself in theirshoes. But it’s sort of a guessing game. So I advise employees that any[conversation] that deals with protected categories--sex, gender, race,national origin, religion, veteran status, pregnancy, marital status,disability, age--even if it’s in fun, should stay out of the workplace.Because you’re treading on thin ice anytime you get into that area.
What else should employers do?
The real key for employers is education. Employees have heard the basiclecture on sexual harassment ad nauseam, but there are many new areas that theydon’t know constitutes unlawful harassment. And companies need to have areally good policy that covers all the protected categories. More and morefederal courts are saying: You need to tell employees how to report not only asexual-harassment claim but also a racial-harassment claim. And maybe you need adifferent reporting structure for that. Maybe you want to have someinvestigators who are of different races so the employees feel comfortable.
How do these new kinds of sexual harassment play out in current law?
If the employer exercises reasonable care--things like having an updatedpolicy, doing consistent training, making sure supervisors are trained inharassment, then actually policing the policy and enforcing it--the company canestablish an affirmative defense in one of these cases, which is a reallypowerful tool. If it’s just a hostile-environment case--no one’s lost theirjob or been demoted--but someone felt offended in the workplace, employers canuse the affirmative defense. The Supreme Court has said if you can show [thecompany has demonstrated] reasonable care, and if the employee fails to takeadvantage of your reporting opportunity, then you have a very powerfulaffirmative defense: We did all we could. So for the first time in the historyof sexual harassment, there is responsibility on the employee to come forward.They can’t just let it happen, then say, "I’m going to make a lot of moneyand sue." But what frustrates me is that many employers still don’t have theupdated policy and training in effect. The training is such a key part.
What should the training emphasize?
One of the key things to do in training is to let people know the differencebetween harassment, a term we use broadly in society, and unlawful harassment.There’s a huge distinction. When I do training, I ask: If your supervisor isrude and nasty to you, and you quit because you can’t take it anymore, is thatunlawful harassment? Ninety percent will say yes. But that is not in itselfunlawful harassment. Unlawful harassment has to be behavior in conjunction withone of the protected categories I mentioned. Is your supervisor treating youthat way because you’re Hispanic or Jewish or a Vietnam veteran or female or40 years old? What’s the basis for it?
So even one offhand comment could be trouble?
It has to be severe or pervasive conduct, not something that happened onetime. If someone one time says, "She’s pretty smart for a girl," that onetime probably isn’t enough. In the area of racial harassment, one time isenough. It’s become so offensive--the N-word and things like that. We’veseen a lot [of cases concerning] same-race harassment. Calling someone a "boy"might be the way one guy relates, but if someone doesn’t like it, it’s a[problem]. Many times people will say, "Why can’t I talk to my coworker thatway? We have a special bond." or "We have a First Amendment right to talkthat way." You don’t in the workplace.
What should supervisors know?
If you’re a supervisor and you hear people making jokes about women or men,it’s your obligation to step in and say something, even if no one complains toyou. You knew or should have known that that was going on, and you have anaffirmative obligation to do something about it. 

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce, April 2003, pp. 70-72 -- Subscribe Now!