Worried about accidentally harassing a woman?

One of the consequences of the #MeToo movement is a simmering male anxiety that a harmless chat by the water cooler might somehow end in a harassment complaint to HR – or worse.

Harvey Weinstein’s criminal trial may reinvigorate those fears.

Though the trial offers his accusers a chance to tell their story under oath, it also gives Weinstein a platform to push back. Even before the trial, one of his lawyers characterized #MeToo as a movement that “strips you of your right to due process … and the presumption of innocence.”

Weinstein’s lawyers undoubtedly hope they are tapping into the latent fears of the seven men on the jury and a broader cultural narrative.

legal standard

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Let’s start with the legal definition of workplace harassment under Title VII of the Civil Rights Act.
To qualify as sex-based harassment, the hostile or abusive behavior needs to be targeted at someone’s gender, and it needs to be severe (read: really bad) or pervasive (really frequent). And it’s not just about whether the victim finds the behavior offensive. A reasonable person would need to find it hostile or abusive.

In fact, the Supreme Court has gone out of its way to clarify that harassment law is not a “civility code” and that behavior needs to be evaluated in context. The late Justice Antonin Scalia wrote, “A professional football player’s working environment is not severely or pervasively abusive … if the coach smacks him on the buttocks as he heads onto the field even if the same behavior” would be abusive in an office. What’s normal on a football field is different than what’s appropriate elsewhere.

In other words, for your conduct to be bad enough to qualify as harassment, you can’t really do it by accident.

You’d have to make some pretty bad choices along the way.

Yes, theoretically, you could accidentally grope someone while slipping on a banana peel.

Even then, it would not necessarily qualify as harassment because it’s not gender-based or abusive under the circumstances. It’s just falling down.

Corporate harassment

Part of the misunderstanding is a result of how harassment is portrayed in corporate harassment trainings.

Training programs tend to suggest that a wide variety of conduct could potentially be considered harassment. They imply that harassment can occur at any time, including while dealing with customers, at an off-site lunch or by overhearing offensive language from others.

Companies want to deter harassment, so the safest approach is just to tell people not to do anything that might even remotely resemble illegal harassment.