David Harmon: Hello, I’m David Harmon.
Mariya Gonor: And I’m Mariya Gonor.
David Harmon: And we are the Employment Strategists.
Mariya Gonor: And we’re excited to welcome you to the very first installment of our podcast.
David Harmon: The Unsolicited Kiss.
Mariya Gonor: So, as the title might suggest, today we’re talking about harassment in the workplace, more specifically sexual harassment in the workplace.
David Harmon: What prompted this episode was the recent incident where the Spanish soccer coach Kissed the winning player who scored the winning goal rather, at the award ceremony, and that created a worldwide backlash on social media. The coach was suspended and ultimately fired.
Mariya Gonor: The most surprising thing to me about that occurrence was the fact that he even did it in the first place. After what we’ve seen throughout the Me Too movement. I would think that someone in his position at this point would know keep his hands and lips to himself.
David Harmon: I think that runs to the very nature of the training of any organization. There were probably policies that were not necessarily communicated adequately, both at the senior and rank and file level, which would have made any person who was employed by the Spanish Soccer Federation aware of what behavior was permissible and what behavior was not permissible.
Mariya Gonor: Your 100 percent correct. During this backlash, a lot of soccer players came forward and said he has acted in a similar manner throughout his career and it has been looked past and accepted for years.
David Harmon: It may very well be that People who were subjected to his treatment, his inappropriate conduct, did not file complaints. It’s very possible that the Human Resources Department at the Spanish Soccer Federation was not adequate to receive those complaints and did not adequately investigate. If they were notified of any type of issue.
Mariya Gonor: Absolutely, and we know from the perspective of liability for any employer, the history of conduct by the offender would be looked at to determine whether or not the one incident is enough to establish harassment. It’s a totality of the circumstances factor. So, with all of this in mind, let me ask, do you think, or are you seeing that we’re getting more harassment cases or less?
David Harmon: Yes, we are getting more cases because the more notoriety that these situations receive. The more people become aware of what their rights are in the workplace, and that’s a critical aspect of that. So yes, we are seeing more cases where people are questioning the behavior and seeing that lines have been crossed and then taking action.
Mariya Gonor: Oh, yeah, that’s fair.
David Harmon: Now one of the things that people who take action or who are the victims or the subject of unsolicited sexual harassment or unsolicited actions which rise to the level of sexual harassment. It’s very difficult for that person to then step up and report.
Mariya Gonor: Of Course.
David Harmon: It’s traumatic to experience it and then it’s traumatic to report that. And one of the things that has to be taken into consideration is not only to help clean up and clean out. The malfeasors who are conducting themselves inappropriately in the workplace.
Mariya Gonor: Absolutely. And for the victims, right, even with the soccer player, her character was subjected to attack. And that happens a lot with people who complain in the workplace. Then they become the victim again because people attack their appearances, they attack their conduct. Did you encourage these remarks in some way, in some shape or form? All of that frequently happens where these people get victimized again. And I think the other thing that I would stress with respect to this particular incident is that this guy stole this player’s moment. She scored the winning goal. It was a historic victory for the team. And now, when you Google her name, this is what comes up. That she was the victim of this unsolicited kiss, unsolicited sexual advance slash semi-assault.
David Harmon: Yeah, and in fact I have her statement. And her statement was that, I want to clarify that, as seen in the footage, I never consented to the kiss he gave me. And, of course, I never intended to lift the President in the air. I do not tolerate that my word is distrusted, and even less so, the intentions of words I never said that’s absolutely what happened to her. The moment was stolen.
Mariya, let’s discuss the legal framework. What is sexual harassment in the workplace? There are two types, quid pro quo, and hostile work environment. In most cases, quid pro quo sexual harassment occurs when a supervisor seeks sexual favors from a worker in return for some type of job benefit. such as a raise, better hours, promotion, or to avoid some type of detriment such as a pay cut, demotion, poor performance, or termination.
Mariya Gonor: By contrast, hostile work environment is created when an employee is subjected to intimidation, ridicule, insult that is sufficiently severe or pervasive to alter the condition of his or her employment and creates an abusive work environment. With quid pro quo. It’s straightforward and clear. I think the hostile work environment, though, is a little bit more complicated and not as clear, so I think it would be helpful if we discussed some of the examples of when hostile work environment is created.
David Harmon: Sure. There are cases that we have looked at. One specifically in New York, the Pawson case, and that discusses or lays the framework that states that all of the circumstances must be considered, including the frequency of discriminatory conduct, its severity. Whether it was physically threatening or humiliating or a mere offensive utterance. And whether it unreasonably interfered with an employee’s work performance.
Mariya Gonor: I think it’s important to stress that when we look at all these factors, we have to look at whether or not, to a reasonable person, would be offensive. So, we know on the one hand trivial inconveniences or trivial comments and petty slights are not enough to constitute harassment, but then there is a spectrum of certain actions, which When taken in context might constitute such harassment and everything’s extremely fact specific Obviously, but what we wanted to talk about is when one instance one thing that someone does when that reaches that point.
David Harmon: Okay, Maria, so let’s consider the situation where there’s a co-worker asking out a co-worker asking that co-worker out on a date. That’s a one-off ask that person out one time.
Mariya Gonor: Right?
David Harmon: And then the other person says no, and then it stops.
Mariya Gonor: Right, and it’s not a manager, it’s not anybody who has the power over the co-worker, right? It’s just same level, no influence. I would argue that that’s an isolated minor act, right? An occasional episode, which generally would not be enough.
David Harmon: However, what if that person who’s asking the other person out on a date persists? The person has said no, but the person wanting the date Is persistent.
Mariya Gonor: Sure.
David Harmon: Keeps asking. and doesn’t take no for an answer, but it’s only, it’s only asking out on a date. There’s nothing more to it. It’s just continuous requests to go out on a date.
Mariya Gonor: I think the continuousness of it takes it to the level of pervasive, right? Because it could be either severe or pervasive conduct that could alter the circumstances of one’s employment. And, you know, I would argue I’m a reasonable person. I don’t know, some might disagree, but if I was subject of constant asking out, I would probably be bothered. I would be, yeah, no, that’s enough.
David Harmon: If you did not want to go out with the co-worker and that co-worker was persistent in asking you out, you would have a basis to report that person and that action to HR.
Mariya Gonor: Yes, and one should definitely do that.
David Harmon: And then HR would have an obligation to investigate.
Mariya Gonor: Yes.
David Harmon: Under the policies, most policies, and we can get into that later, but most policies would provide for an investigation. following the receipt of a complaint.
Mariya Gonor: Yeah, absolutely. And again, under the law, an employee has the right to harassment-free environment. And when you’re bothered by a particular conduct to such an extent that it alters what you do, I mean, again, if someone’s constantly asking you out, are you going to then avoid that person? If a group of people is going out to lunch and then that person’s there, are you going to avoid them? Probably. And if that’s, and if you’re altering what you’re doing, day to day Because of something that that person does. I think that’s time to talk to HR.
David Harmon: Sure. If it has a deleterious effect on the workplace, on your feeling about your position in the workplace, it’s absolutely a reportable incident or incidents.
Mariya Gonor: Definitely. All right, let’s take a look at another real-life example. Now, this case is from the Fifth Circuit, and I will preface this by saying that I think that if this transpired in New Jersey, New York, maybe California, I think that there would be enough for the court to conclude that there was a hostile work environment. But in Texas, the court concluded and the Fifth Circuit affirmed that this was not sexual harassment. So here are the facts. The plaintiff complained that her Female coworker has made comments about the shape of her body on a number of occasions. In addition, she’s indicated that she would know what to do with a woman like Plaintiff. She’s shared some details about her sexual history and that she’s asked the plaintiff whether or not she was bisexual and invited her out to go to a strip club together. So, the trial level court and then obviously the 15th circuit, which affirmed his decision in 2023 concluded that this is not enough to be severe or pervasive to be actionable under Title seven for sexual harassment.
David Harmon: There is a wrinkle here, Mariya, and that is if the court found that there was no sexual harassment in this fact pattern, but yet the company took retaliatory action against the complainant and fired her, that would expose the company. To liability under the law.
Mariya Gonor: Yes, it would be a separate claim. It would be a claim for retaliation.
David Harmon: Yeah, an adverse employment action taken as a result of a complaint. So, it’s two-fold. Not only is it important for companies to Properly enforce their policies, but it is also important for them not to take an adverse action against an employee filing a complaint.
Mariya Gonor: Based on these facts, it doesn’t appear that the plaintiff was punished as a result of making any complaint, even if she made any. But if there were retaliation by the company as a result of the complaining, even though the underlying conduct by the employee does not constitute harassment, the actual retaliation would create a cause of action.
David Harmon: Right, but that has to be looked at by counsel in every jurisdiction because the laws governing retaliation and adverse employment actions are state-specific. We recognize the traumatic impact of a situation like that and the person who is the target now has to make a decision as to whether or not they want to report that event and the potential exposure that that would have on the person’s longevity at the company and future career. But these policies are in place to protect that very person from being subject to that type of treatment and are designed to help ferret out the people who are going to be conducting themselves inappropriately in violation of policies.
Mariya Gonor: Under the law, if an employee complains, they should be protected from retaliation. Even if the underlying complaint did not have Let’s say legal merit. So, for instance, if you believe that you were harassed, but the reality, the conduct does not rise to the level of actual harassment, but you complain nevertheless, your job should be protected from retaliation. Unfortunately, it doesn’t always happen that way. But that’s the law.
David Harmon: Right and we’ve seen that in our cases where the action the harassment The reporting of the harassment and then the adverse employment action taken by the company it almost as if they’re ignoring the fact that this person reported and it’s the retaliation that winds up getting the companies in trouble and finding liability and damages resulting from that type of action after the incident has occurred, after it’s been reported, and then an adverse action takes place.
Mariya Gonor: Yes, exactly. It’s the action, like you said, it’s the action that gets the company in trouble versus the actual underlying Non-harassment harassment.
David Harmon: The action, the action itself is then initially the person committing that act, that’s the person who’s in trouble. But when the company takes an adverse employment action, now it rises to the level of impacting the company. In addition, the company has an obligation and a responsibility to make sure the policies are enforced and the person is trained.
Mariya Gonor: And this is why one should have a handbook. Don’t you think?
David Harmon: A handbook is an absolute necessity in any employer-employee relationship.
Mariya Gonor: Yeah, it’s like a playbook. It tells you What to do and what to expect, and more importantly, if something bad happens to you, if something makes you uncomfortable, this is how you know what to do about it.
David Harmon: Provides guidelines as to what is sexual harassment, quid pro quo, or hostile work environment. What are the procedures for filing a complaint? And then, what are the procedures and steps taken by a company in terms of conducting its investigation as a result of that complaint?
Mariya Gonor: You know, just as important as having a handbook is knowing what’s in it. Do you know how many times I get employers calling me and asking me what to do and my answer is, well, what does your handbook say? We don’t know.
David Harmon: Mariya, this reminds me of something a law school professor of mine said. He said, read the statute. Read the entire statute. And I would suggest that this carries forward with employee handbooks. Employers should know the contents of the handbooks they are issuing to their employees. They should read them fully. They should understand what their counsel has prepared. And they should be prepared to implement those policies. On the other hand, employees, upon receiving the handbooks, should make sure that they read them in their entirety and understand what is in them, understand what they are signing and acknowledging. Having been given those policies within the handbook and ask questions and make sure their questions are answered. Just issuing a handbook without knowing what’s in it and not properly implementing it with training, with educating the employees, is a wasted effort.
David Harmon: Alright Mariya we talked about the unsolicited kiss but let’s talk about the CEO who walks around hugging people in the office.
Mariya Gonor: Do you have anyone specific in mind or is it just a general kind of?
David Harmon: He’s a hugger. The person is just, uh, known as a hugger and when people talk about, you know, Joe Smith, they say, uh, Oh, he’s the hugger or watch out for him. He’s a hugger.
Mariya Gonor: Yeah.
David Harmon: Okay. So how, how should, how should that be handled in the workplace?
Mariya Gonor: So, I think we got to break it down, right? Cause every time we have to go back to the initial element, right? Is this severe enough? Is the incident of one hug severe enough? to alter one’s condition of employment. What do you think?
David Harmon: It depends upon how the person on the receiving end of the hug feels.
Mariya Gonor: Mm hmm.
David Harmon: The reasonable, standard.
Mariya Gonor: Yeah.
David Harmon: Right, reasonableness. How does that person feel? If the person’s uncomfortable and backs away or, avoids that person then that’s probably not appropriate in the workplace. But if the person’s intent is only to be friendly and, goes beyond just a handshake, it’s really a matter of what the intent of that person’s activities are. I think it’s a fine line between acceptable versus unacceptable.
Mariya Gonor: So, your lawyerly answer is that it depends in a nutshell, right?
David Harmon: Yeah, it depends. All of these, all of these situations are fact specific.
Mariya Gonor: Oh, for sure.
David Harmon: But I do think that if I was general counsel of a particular company and the CEO was walking around hugging people, um, and probably would hug me as well. I would advise that CEO not to do it anymore.
Mariya Gonor: That’s fair. I mean, I also think it kind of depends to use a very technical term on the mechanics of the hug, right? Like where are the hands placed? How tight is this hug? I know I’m definitely overthinking this, but all of that will play a role into how the huggee feels about the huggers actions.
David Harmon: Well, I think that this has to do with is the physical contact acceptable or unacceptable. And in more instances than not, it’s unacceptable. If it’s someone who, uh, it’s between two friends or people who know one another and they exchange hugs with one another and it’s part of their social interaction, that’s not necessarily going to be something reported that either person is going to report to HR as a violation of policy. But if it’s something where the person is going around and hugging everyone, that to me crosses the line overall, and I don’t know if degree is necessarily, it’s a hug. It’s still a physical contact.
Mariya Gonor: Yes.
David Harmon: We know if it’s extreme and the person hugs and then drops his or her hands down and touches somewhere. That’s not typically touched in a hug.
Mariya Gonor: It’s not within the hug zone? Are you saying it’s outside of the hug zone?
David Harmon: Outside the hug zone.
Mariya Gonor: Can you draw that?
Right, like outside the strike zone. Correct. That’s, that,
David Harmon: That absolutely crosses the line.
Mariya Gonor: Oh, for sure. At this point, it’s no longer a hug at that point. That’s just groping people.
Mariya Gonor: Now, our listeners might be or might not be surprised to learn that there actually are cases addressing unwanted hugs. The first case, which involved the proverbial John Smith, who was walking around and hugging everybody in the office, and that is Zetvig v. County of Yolo out of the 9th Circuit from 2017. The court held that a reasonable juror could find conduct severe under California law where there were unwelcome hugs on more than 100 occasions and at least one unwanted kiss.
David Harmon: So that goes to the severity of the action on the part of the actor.
Mariya Gonor: Another example could be when the hug is unduly prolonged or sexualized in some way, intimidating, or threatening.
David Harmon: And it’s all a matter of the totality of the circumstances surrounding that hug. What is going on at that moment? What was the lead-up? What is said? Where is the touching? How does it occur and the frequency?
Mariya Gonor: Yeah, absolutely. So, actually, in one California case that is fresh off the presses, the appellate division held that plaintiff could not set forth a claim for hostile work environment where her complaints included two incidents where the supervisor hugged her instead of shaking her hand, as he did with male employees and where that supervisor also made a joke towards this employee by saying that you need to stay off porn sites while working on the computer in the office. The district-level court as well as then the appellate court said that these two instances even if they were taken to be as true are not enough because the plaintiff did not allege that any of the hugs that she was complaining about were sexualized or uncomfortable in any way. There was another allegation that the plaintiff made that the supervisor stared at her uncomfortably, but the court did not give that much consideration.
David Harmon: So again, these cases are fact specific, as most cases are, and are reviewed against whether we have hostile work environment and or quid pro quo in the harassment context. So let’s talk about another situation having to do with a business trip. The basic facts of that case are senior exec and a junior employee traveled out of town for a business meeting, and both stayed in separate hotel rooms and somehow The senior exec found his way into the junior employee’s room. This while she was sleeping, I’m not quite sure how that happened, but while she was sleeping.
Mariya Gonor: Yes.
David Harmon: And he got into bed with her and started to hug and kiss her.
Mariya Gonor: Yes. So, this is the type of hugging that definitely goes outside of the realm of permissible, right? I think there could be. Couldn’t even be any dispute that that’s harassment. And I think one would be very hard-pressed to argue that that singular incident is not enough.
David Harmon: I think that going into a hotel room on an unwelcome visit into a hotel room, right away that crosses the line. The danger sign is flashing. But there’s no question. That any type of physical contact and getting into someone’s bed in a hotel room is absolutely, strictly, uh, harassment.
Mariya Gonor: Oh, for sure. So, I think frequently we get asked, What if the alleged harassment happens off the premises, right? Let’s say there’s a celebration and the office is at a restaurant or at a bar and then the superior or a coworker makes a move on the plea, does that make a difference that it’s off the premises?
David Harmon: It’s still within the work context and it’s inappropriate and that would cross the line.
Mariya Gonor: For sure.
David Harmon: That would absolutely be. If you look, any policy that we draft for sure would ring the alarm bell on that, crossing the line for actionable harassment.
Mariya Gonor: So, the location itself is of no moment, whether it’s on the property of the company versus elsewhere and even in the social setting.
David Harmon: It’s context, it’s context. It was a business purpose event. It was a firm or company-sponsored event. That’s a workplace harassment. Even if it’s not within the confines, the four walls, so to speak, of the office.
Mariya Gonor: Okay, so because we are the Employment Strategists, we have a segment on this podcast in which we suggest some strategies for both the employers and the employees.
David Harmon: It’s very basic for employers. Make sure your policies are up to date. Make sure your handbook, which contains those policies, is reviewed regularly because the laws continue to change in this space. As recently as September, the EEOC came out with new harassment guidelines. So the guidelines, the case law, the statutes are continuing to change and evolve in the Handbooks and policies have to be kept up to date. Training is very important. Training is a companion task for employers. Training to dovetail with the policies and to make sure that those policies and training comply with the law.
Mariya Gonor: In Fact, in some states training is required to be administered to employees under the law.
David Harmon: And beyond that, some states require the training to be interactive, so it’s advisable to check with your councilist for what that entails.
Mariya Gonor: And from the employee perspective I would document everything, note-taking is extremely important and complaining to HR is extremely important.
David Harmon: And when that complaint comes to HR, HR has to be well versed and trained to know what to do with those complaints, including the proper, proper way to investigate and then to resolve and address the issue that’s been brought via the complaint.
Mariya Gonor: And while this is not legal advice, we hope that you find our time together entertaining and informative. Please remember to get guidance of competent legal counsel for any legal issue that you might have.
David Harmon: If you’d like to continue the discussion, you can reach us at theemploymentstrategist@norris-law.com. Thank you for listening.