National Clothesline

When I first started practicing law in 1977, secretaries and lawyers were allowed to smoke anywhere in the building, including at their desks.

Today, those few employees who smoke walk outside several times a day to get their nicotine fix.

In 1977, we still used carbon paper, some lawyers dictated letters to secretaries who took shorthand, and we did not even have fax machines.

Today, we have laser printers, computers, and email.

In 1977, the law against sexual harassment was in its infancy. It was acceptable to tell a female employee that she looked good, people hooked up in the workplace all the time, and some workplace “touching” was not considered problematic.

Boy, have times changed.

Every conscientious employer has a policy against sexual harassment, which encourages employees to report instances of inappropriate behavior. That behavior can include comments, jokes, emails, persistent requests for dates, and other actions that could have innocent explanations or merely reflect a lack of good taste.

Many companies do not allow employees to date, which can be awkward when the boss gets an invitation to the wedding.

I am writing about sexual harassment because I just read a case about a group of doctors being sued for creating a hostile environment for their female employees. As far as I can tell, none of the doctors engaged in demands for sexual favors, but their bad taste was good enough to get them embroiled in a lawsuit that a federal court ruled recently would go to trial.

Basically, the three male doctors are alleged to have acted like frat boys toward their female employees. Specifically, one employee testified that when she made hospital rounds with one of the doctors, he would tell her to be sure to perform sex acts on the male patients. She also said the doctor would undress in front of her, insisting that she stay so they could continue to discuss patients.

His response to any protests was, allegedly: “Stop being a girl.”

Another doctor, according to all the female employees who brought suit, liked to talk about the women with whom he had had sex. Supposedly, he kept photos of naked woman on his phone (probably an iPhone, if they were good quality), which he insisted on sharing with them. They also said that this second doctor would tell them to wear shorter skirts or show more cleavage.

The third doctor is alleged to have told them to “loosen up” and have sex. When one of the female employees lost weight, the third doctor ostensibly asked her if “lots of sex” was part of her exercise regimen.

With the possible exception of the striptease allegation, most of these comments, taken alone, would not create a hostile environment. The number of comments, which did not stop after there were complaints, made the real difference in the court’s view of the propriety of the comments.

I recommend to my clients, first, that they maintain a professional working atmosphere at all times. They should stop both male and female employees from turning the workplace into an episode of “Two and a Half Men,” where every comment has an element of bad taste. It is very easy for “consensual” banter to be turned into hostile banter, either by an employee taking the banter too far or an employee deciding that he or she can use the comments to allege, after being disciplined, that he or she was the victim of sexual harassment.

I also recommend to my clients that whenever an employee asks another employee, supervisor, or UPS delivery person to stop making comments, that they take them seriously and put a stop to them. Unless the complaints are so clearly off the wall that taking action would be inappropriate, some effort should be taken to correct the situation. Why take the chance later that some judge will think that the complaint required a response?

If you are the boss, you must be especially careful of what you say to your employees. Vulgar language should be avoided; sexual comments should be kept to a minimum. If people do not laugh at your jokes, take the hint. If they laugh reluctantly, use good judgment in deciding whether your sense of humor is good or bad.

Do not touch your employees except when touching is clearly expected (for example, if they start to fall and you catch them). If an employee gives you a hug, take it, but keep it short. No matter how tense an employee says she is, an offer to rub her shoulders is never the right response.

I have seen plenty of employers have to fire senior employees for inappropriate comments in the workplace or at after-hours gatherings. They have no choice in today’s legal environment but to take action against such supervisors, and in some cases, it is just plainly the right thing to do.

It’s never a bad idea to remind employees that workplace comments of a sexual nature are inappropriate. If you do, maybe you can avoid a lawsuit like the hapless doctors in Western Pennsylvania. Sexual harassment cases are good for gossiping, but for the employer who has to defend one, there are no benefits.