All I did was look at her! Is that sexual harassment?

 A subordinate has made an accusation of sexual harassment against me for the way I looked at her – which I don’t even remember. No comments, actions, touching, etc. – she just felt “uncomfortable” about how she was looked at. HR says it’s not what is in my mind but what was in hers since she was “uncomfortable.”

Posted 11-10-2010

Ann Kiernan replies:

HR is right to tell you that the law does not look at what an alleged harasser had in mind, but instead focuses on the impact the words, gestures, actions, etc. had on the alleged target or victim. But the standard for illegal harassment is not whether someone was “uncomfortable”; rather, it is whether the alleged harassment was severe or pervasive enough to interfere with work.

In a 2008 federal appeals case, a manager stared at his secretary’s breasts several times a day, but never made a sexual advance or any sexual comments. Several other women also complained that the manager stared at their chests. After a lower court dismissed the secretary’s harassment suit, the appeals court sent the case back for trial, noting that “

[a] worker need not be propositioned, touched offensively, or harassed by sexual innuendo in order to have been sexually harassed.” Billings v. Town of Grafton, 515 F.3d 39 (1st Cir., 2008).

In this case, the internal investigator noted that the manager initially made eye contact while he was speaking to people, but then his eyes would wander around. The investigator suggested that was part of the problem. So, in addition to following whatever guidance you get from HR, you may want to work on making sure you maintain eye contact while talking to subordinates, peers, and upper management.

Good luck.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:41+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.