Java with Joe: 7 Non-Defenses to Workplace Harassment 

This may be the Holiday season, but there’s nothing joyous or jolly about the virtually daily news stories recounting how women have been and continue to be harassed and preyed upon in the workplace. The only thing worth celebrating in those stories is the fact that women are feeling more comfortable (which probably isn’t exactly the right word) in speaking out on this issue. As a result, maybe we’ve reached a cultural inflection point—one of those moments when something in the culture changes so much that the old ways of thinking and acting are simply no longer sustainable. Maybe.

In any case, it seemed to me that this might be a good time to reflect on how each of us, as managers, should react when dealing with a case of workplace harassment. Aside from the fact that the issue is so much in the news right now, there’s the fact that this is also the season of the office Holiday party—an occasion that often seems to stimulate some people to drink too much and think too little, with a corresponding increase in inappropriate behavior toward their colleagues.

So, with that in mind, here are seven “non-defenses” that are often used to justify or excuse incidents of sexual harassment.  While harassment issues are often complicated and often require consultation with more senior leaders, HR, and perhaps the legal department, as managers—at any level of the organization—we are the first line of defense. We have an obligation to set the cultural tone and make it clear that we want and will insist on a work environment in which all of our people feel safe.

Ok, so now let’s take a quick look at some of the arguments you may run into when you’re confronted with inappropriate behavior.

  1. There’s no law against what I did.

Just because certain behaviors don’t rise to the level where they could be prosecuted doesn’t mean that they should be tolerated in the workplace. Most employers have policies that prohibit unacceptable conduct—behavior that is sexually suggestive, explicit, or otherwise inappropriate, even if it may not reach the level of a criminal act. Deal with that kind of behavior right away, by making it absolutely clear that your company expects—that you expect and will enforce—a standard of conduct that may be higher than the standard required by law.

  1. It happened after work, offsite, and off the clock.

Irrelevant. Workplace harassment is actually not limited to the workplace. The organization can be held liable for harassment that occurs at company-sponsored social events, and even in environments wholly independent of work, such as if a supervisor calls someone at home and asks for sex.  It’s the inappropriate behavior that matters, not where it occurs.

  1. I had no bad intent.

This is another irrelevant “non-defense,” because again, it’s the behavior that counts. Just because an employee acts without malice or ill does not mean that the behavior is OK. The law is very clear on this. Individuals do not need to intentionally make someone uncomfortable for the behavior to be considered unacceptable or illegal.

  1. The person never complained before about what I was doing.

Again, irrelevant. Individuals often wait to report something until it becomes a pattern, or until other circumstances make them feel better able to speak up. In the current environment, many women have spoken very eloquently on this subject.  The point is that just because someone doesn’t immediately report behavior that they find unacceptable doesn’t make that behavior acceptable. As leaders—and just as caring, compassionate human beings—we need to be clear about this in our own minds, and we need to act accordingly.

  1. It was only a joke!

There’s plenty of room for humor at work, but there’s nothing humorous about remarks that in any way target someone’s race, gender, or religion. This is again behavior that is simply unacceptable in the workplace, and as the CEO of your own organization, however large or small, you need to address it firmly and directly, whether or not the offended party voices a complaint.

  1. The harasser is one of my top performers.

My personal experience, and I suspect yours as well, is that employers are far more likely to discount bad behavior when the person involved is a senior leader or a top performer. But I firmly believe that we need to hold these people to an even higher standard than other employees because of their visibility and influence. From a moral and ethical perspective, this double standard is just wrong. And from an organizational perspective, it breeds cynicism about the organization’s values, undermines employee engagement, and ultimately has a negative impact on performance. As a leader, you can’t avoid the fact that what you do and do not tolerate has a tremendous effect on your organization’s culture—and on your own credibility as a leader.

  1. The behavior was not unwelcome.

The fact that someone didn’t resist a particular behavior doesn’t mean that the behavior was welcome. And it certainly doesn’t mean that the person’s response was truly consensual. Regardless of the legal issues involved in “he said, she said” situations, and being mindful of the need to respect the rights of all the parties involved, this is yet another case where you and your organization need to enforce a higher standard of conduct.

Going beyond compliance to service. One last note. All leaders have an obligation to comply with—and ensure that their people comply with— their organization’s code of conduct and harassment policies, and more broadly, with all harassment-related legal requirements. But I believe we all have an additional, higher obligation—a deep-seated responsibility to consistently behave like servant leaders, doing everything we can to help the people in our organizations thrive both personally and professionally. If we keep that obligation in mind, we’ll intuitively know how to respond to inappropriate behavior when it occurs, and more importantly, we’ll be taking steps every day to keep that behavior from happening in the first place.

So, as you examine your role within your organization, here are some questions to consider:

  1. What am I doing on a regular basis to create a safe work environment in my organization? What am I doing to specifically make it safe for people to come forward with complaints?
  2. What about my own behavior? Do I ever, consciously or unconsciously, behave in ways that could be construed as harassment?
  3. Am I prepared to speak truth to power on the issue of harassment? Have I done so in the past? If not, why not?