I DIDN’T MEAN TO…

Steven Cesare, Ph.D.

A re-purposed business owner from Missouri called me the other day to talk about a sexual harassment incident that occurred during one of her company’s optional social events. Like most companies, the business owner sponsors several social events throughout the year (e.g., Christmas party, July family picnic, periodic Ice Cream Socials, annual Employee Appreciation Day) to break up the routine grind of the landscape season, celebrate a noteworthy event, or simply enjoy each other’s presence in a personal milieu rather than as interdependent co-workers on a job site.

I’m all for it!

Business owners frequently pontificate about the importance of company culture, invoking endless hackneyed platitudes, though don’t always support it with energy, events, or enthusiasm.

Yeah, I know. You’re busy.

Did you break a sweat today?

They did.

Back to the Show Me State. During the aforementioned social event, an employee made several offensive, if not suggestive, comments to a co-worker who tried to avoid that line of conversation by shifting the topic to a safer subject. The aggressor did not pick up on that ploy, and continued to banter, cajole, and flatter the co-worker with increasingly unwelcome commentary.

“Yes.” Of course, the employee had been trained on preventing sexual harassment. Everyone has been trained on sexual harassment! Many times!

Fortunately, the social event ended without serious incident. On the following workday, the employee filed a complaint with the business owner, outlining the situation, details, and impact of the unsettling interaction that took place. As the news was shared with other executive team members, the natural lynch mob refrain to “Fire the Employee Immediately” gained momentum. As you would guess, I told the owner to not fire the employee impulsively; instead, per company protocol, I recommended that she suspend the employee until a fair, thorough, and prompt investigation was conducted. In the face of intense emotional pressure from other executives, the impressive business owner courageously held her ground.

Lo and behold, the properly-conducted and well-documented investigation confirmed the allegations. Both participants acknowledged the tawdry dialogue, multiple witnesses verified bits and pieces of the inappropriate conversation, and the employee was dutifully terminated in keeping with the company’s standard investigation protocol. Another victory for evidence over emotion! There is still hope.

The underlying take-away is this: During the investigation, the soon-to-be-terminated employee repeatedly stated “I didn’t mean to offend anyone,” “I was just joking around,” “That was not my intent.” Those exculpatory pleas are meaningless. Just to be clear, it is not just the perpetrator’s intent that matters; it is how an objective, reasonable person would react and the impact of that behavior that determines whether or not the behavior constitutes sexual harassment. Moreover, even if the recipient asks that no formal action be taken, the organization must go through the complaint procedure, and explain to the alleged recipient that it’s the company’s responsibility to all parties and to the organizational culture as a whole, to deal with any harassment issues.

Per that organizational culture, the employee handbook and related prevention of sexual harassment training program should state that “intent” is not a precondition for sexual harassment, stipulating that once unwelcome conduct is viewed as being “severe or pervasive,” it then becomes unlawful.

I know company culture is important to you. Of course, we know you are very busy. But in the event of a sexual harassment claim that exposes a deficient policy statement or training program, I don’t think your excuse that you “intended” to address those issues once you became less busy will be a suitable defense.

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