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Shouldn't punishment apply for indirect sexual harassment?

Discussion in 'Discrimination & Sexual Harassment' started by SeekingAdvice88, Feb 26, 2017.

  1. SeekingAdvice88

    SeekingAdvice88 Law Topic Starter New Member

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    If a hostile remark is made directly to Person A, and Person B (who belongs to the same minority group as Person A) learns of the remark after-the-fact, doesn’t Person B have the right to expect that the employer should take punitive action as if Person B had been the one directly attacked?

    Please bear with me as I use names to try to make this situation as detailed as possible.

    I am a woman and my question involves another female colleague whom I’ll call “Kristen”. Kristen works for a sister company, but our companies both fall under the same corporate umbrella.

    A male colleague whom I’ll call “Bill", who is in my company and reports to the same manager who I do, impugned Kristen’s work capabilities recently based on her gender. Bill intentionally spoke to Kristen alone (no witnesses except for Kristen), commenting that her clients would take her more seriously if a man were doing her job instead of her. The job is a managerial role (not involving physical labor). All of us have been through mandatory sexual harassment awareness training multiple times, so it’s not like Bill didn’t know that what he said was harassment. He knew, and he made the remark because Bill has a history of bullying behavior and he thought he could get away with it.

    Kristen recently reported Bill’s hostile, sexist comment to her male manager. However, as Bill doesn’t report to the same manager as Kristen, and Kristen and Bill technically work for different companies, no action was taken against Bill.

    Here is where I come in: even though Bill's comments were not made to me directly, I am extremely offended by them and I take them as an affront to me personally based on my gender. Bill clearly has a problem with women (I am leaving other details out otherwise this would be a novel), and as a woman myself, I don't feel comfortable having anything to do with him. I feel that I have a right to tell my manager (who is also Bill’s manager) that I will not work with someone who harbors such discriminatory attitudes toward women.

    Now for the sake of precedence, I must bring up the outcome of another harassment case in my company: a white male employee (whom I’ll call “Dave”) was fired after forwarding (but not originally authoring) an email containing a racially charged picture (anti-black) to some white colleagues. When a black colleague (whom I’ll call “Russell”) saw the email and complained to HR, Dave was immediately terminated. IMMEDIATELY. To be clear, even though Dave did not pen the email himself, nor did he send it directly to Russell with the intention to insult Russell, Dave was fired without any probationary period.

    So — if my company terminated Dave because Russell was (rightfully) offended by the racist email that Dave neither wrote nor sent directly to Russell, am I correct to expect that my company should also fire Bill because I am offended by the sexist remark that he said directly to Kristen with the purposeful intention of demeaning her?

    Since Dave was fired for indirectly harassing Russell, it follows (in my mind) that Bill should be fired for indirectly harassing me. Both situations beget a hostile work environment. Sexism should be handled with the same gravity as racism. If they’re not, that inequality of punishment itself is a perpetuation of sexism.

    Thoughts?
     
    Last edited: Feb 26, 2017
  2. mightymoose

    mightymoose Moderator

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    No.
    While the comment may have been sexist, it is not sexual harassment. It isn't even close based on what you say here.
    What you describe is a scenario in which you are offended by gossip. I would not expect anyone to take action.
    While there may be any number of reasons to terminate Bill there are none that require it.
     
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  3. cbg

    cbg Super Moderator

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    What's more, no employee ever has the right to demand or even expect the employer to take punitive action against another employee. You have the right to expect that any illegal behavior that is reported to the employer or that the employer knows or should have known about, stops. That is ALL you have the right to expect. Even if this had been out and out sexual harassment, how "Bill" is treated is none of your business. If the offensive behavior stops, the employer has fulfilled their role.
     
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  4. army judge

    army judge Super Moderator

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    According to your SECOND HAND recitation of events, OP, allegedly from ONE of the two alleged conversationalists; this is a classic HE SAID-SHE HEARD fable.

    No one but the two participants know with any certainty what was uttered.

    Frankly, whenever one person says to me, "Bill and I were talking and Bill said blah blah blah yada yada yada blab blab blab drone on and on."

    I always say, I'm not interested, please stop.

    In the tale you recite, OP, there's no proof that a conversation even transpired, much less what was said.

    In the world I know, proof is required before action is taken.
     
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  5. SeekingAdvice88

    SeekingAdvice88 Law Topic Starter New Member

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    Hello mightymoose, cbg and army judge, I appreciate your honest and quick replies.

    @mightymoose, I agree with you completely that what I described wasn't sexual harassment. I miscategorized the behavior -- this wasn't a situation of sexual advances, but more a situation that was based on gender.

    @cbg, I appreciate your letting me know that I should not expect a specific retributive course of action.

    @army judge, I agree that proof is the only thing that matters (like when “Russell” had proof of “Dave’s” racism by way of the email), and that without it, it’s he said-she said. That’s what concerns me.

    Now, for the background that I didn't include in my original post…

    (I have to provide a warning that I’m going to quote a rather crude statement — my apologies if it offends readers.)

    Long before this incident between “Bill" and “Kristen”, Bill used to be MY manager. He had made a number of remarks in my presence over the years that made me uncomfortable: talking about women's bodies while out at lunch in groups, "rating" women as they walked by, talking about how no woman older than 35 was worth dating, things like that. He once said in my presence (! crude remark alert !) that the only movies a man should take a woman to on a date are the ones that "get 'em wet”. That remark offended three men who were present, who all looked horrified. However, I had no recourse because Bill was buddies with our senior department manager, who would tell me that I was being “too sensitive” to find Bill’s comments offensive.

    I am a single woman working in a heavily male-dominated industry (less than 15% of the field managers are women, myself included). As such, I am under a scrutiny that the men generally aren't subjected to: "Did she sleep her way into her job? Is she looking to land a husband?" Stuff like that. Back in 2010 when Bill was my manager, Bill thought it would be funny to accuse me at lunch (in front of our senior department manager and another male colleague) that I had a “crush” on a fellow male colleague who was not present at the lunch (I will call this guy “George”). It wasn’t true of course, and I was very insulted by the insinuation. After I let Bill know this in front of everyone, Bill started laughing at me and said, “Yeah, I just wanted to see how you would react to that.” In other words, Bill admitted that he had made up a lie about my taking an interest in George for the sport of seeing my reaction. I complained to our department manager about it as we left the restaurant, telling him that stories like that can be particularly harmful to a woman’s work reputation — especially when the focus of this alleged “crush” is a married man with two children. Once again, this department manager came to Bill’s defense, saying it was funny and that Bill was just playing.

    Well, it got more serious: two weeks later, I was talking to the Executive VP and COO of our company in a social gathering, and I asked him for permission to attend a specific company meeting that was coming up. Bill overheard this conversation, butted in and said, “You just want to go to that meeting because you know George is going to be there!” Then he made this slimly laughing sound, looked over at our COO and nodded with a smile while wagging his eyebrows. Basically, insinuating to our COO that I was chasing after (married with children) George, and sarcastically implying that I wouldn't have a professional reason for wanting to attend a meeting, but just a romantic one. Our COO glared at me and looked me up and down as he processed the remark. I tried to downplay the remark and redirect — because Bill had proven himself to be retaliatory and a vicious gossip, so I didn’t want a public rebuttal to land me in hot water. The COO shot me a warning look, then walked away. When it was just Bill and me left, Bill smiled at me like that cat that ate the canary. He thought it was funny that he could do that just for the sport of it.

    As quickly as I could, I applied for a job in a different department — a department that was incredibly stressful, and one that didn’t come with any pay raise at all. I did it to get away from Bill, because it became clear that there was nothing that I could do to defend myself, and that because I didn't have proof other than he said-she said, there was no way I could prove any of this. When Bill and I were subsequently transferred to the same department two years later and became colleagues, I avoided him like the plague, and continue to do so.

    So — if I tell these points to my current manager, I understand that there should be no expectation that Bill will be fired. However, if I tell my manager that I don’t want to work with someone with a demonstrated history of hostile behavior and disrespect for women, do I have the right to change my work schedule to avoid Bill, even though I have no physical proof (recordings, emails) of his behavior? The only thing remotely "proof"-like is Kristin's recent complaint to her manager.
     
  6. mightymoose

    mightymoose Moderator

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    You might ask to change your work schedule but don't really have a "right" that requires it to be changed.
    The best you can do is report these instances as they occur to either a supervisor or an HR representative. Encourage others to do the same. If you can cite any written rules or regulations the employer has regarding conduct you might be better off. Perhaps your complaints just aren't raving the right ears? What action they take, if any, is not up to you. If you fear retaliation and say nothing then there isn't much to be done at all.
    If you are unhappy with the current circumstances and unhappy with the management, perhaps it is time to begin searching for a new employer where these problems don't exist.
     
  7. army judge

    army judge Super Moderator

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    I learned as a small boy from the smartest woman I've ever met, my beloved mother, to walk away when the conversation turns to racist slurs, lewd remarks, and coarse language.

    I've never heard but one or two words of any story similar to the one you describe, OP, because I hear mother's voice admonishing me to immediately vacate the area.

    If I'm ever asked why such a hasty departure, I smile and say, "I never listen to gossip."

    I tell you this, OP, as a man who was an Army Ranger, a 30 year soldier, one who spent four years in Nam, and one who retired as an O7.

    I never tolerated any off color remarks for myself, or those under my command.

    As a judge, any foul language (or coarse behavior) in my courtroom earns you a contempt citation and a night (or two) in a county jail!!!

    Sooner or later, more often SOONER, those comments aren't uttered in my presence.

    Sadly, this country has lost many virtues.

    One of them is civility, another modesty in dress and speech.

    The law can only have a limited impact on restoring either!!!
     
  8. SeekingAdvice88

    SeekingAdvice88 Law Topic Starter New Member

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    Hi mightymoose and army judge, I thank you again for more of your feedback and insight.

    Here are three more wrinkles to this story:

    #1: The senior department manager (who I'll call "Fred"), who told me not to be offended at Bill's remarks, was tight with our HR rep for many years. She told him everything that happened in the company, including confidential incidents involving other employees. If I had tried to go to her directly with my concerns, it would have reached Fred immediately, so I didn't feel safe speaking to HR.

    #2: When Fred would suggest that we all have lunch together… it really wasn’t a suggestion, because of his high position in the company. We had to go to lunch as a group. We didn’t have a cafeteria in our building, and there was only one walkable small restaurant nearby, so we always ended up carpooling to lunch off-site. Unfortunately when Bill’s remarks would pop up from time-to-time, I had no way to escape from the restaurants because I had no other means of transportation back to work. Not attending these lunches would have been seen as my “not being a team player”. As a woman in a male-dominated company/industry, I didn’t feel that I had the luxury to marginalize myself any further by declining lunch attendance.

    #3: One of the main reasons I didn't speak up (and am now rethinking speaking up at all), is because I feared that the reputation of my alma mater would work against me. I graduated from one of the Seven Sister colleges, which have the reputation of being extremely liberal. Years before I started working at my current company, I once made a respectful comment in a group of people in a classroom setting — it was nothing hostile, nothing political, nothing challenging. Honestly, I don’t even remember what the remark was. What I do remember is what happened afterward: one of the men in the group said, "Well, that's just the sort of remark I'd expect to hear from a feminazi! I know where you went to school, and I know how you feminazis all think." It became clear to me back then that -- should I ever be in a situation where I was on the receiving end of discriminating behavior -- the reputation of my alma mater could end up diluting the very merit of my complaint. People might assume that I'm "too sensitive" or "looking to create an issue" wherever I could because they assume I’m a hyper-liberal woman who hates men (which isn’t true). As such, I've bitten my tongue more times than I can count over the years.

    I’ve been with this company for fifteen years. I have a solid (extremely positive) reputation in the company, I’m told repeatedly how valuable I am to our performance and I genuinely like almost everyone I work with (except Bill, of course). I really don’t want to look for another job, because I genuinely love my job and am finally living in an area that I really like.

    So — if you were me, and you wanted to continue to keep working in the same place — would you bring these concerns to your manager’s attention, just for the sake of “going on record”, without any expectation of punitive action against Bill? Or should I continue to stay silent, and hope that Bill somehow slips up in front of other people on his own?
     
    Last edited: Feb 26, 2017
  9. cbg

    cbg Super Moderator

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    Gotta agree with the Moose. You can request a change but you do not have a right under the law to a change. Once again, your right under the law is to have any illegal behavior stop; no more, no less. Report, report, report, but how management handles the issue, as long as they make anything illegal stop, is not your call to make.

    My comment posted before I saw your last one. For the record, I am female; have worked in a primarily male environment (though I currently do not); and have not only been the victim of sexual harassment in one position, but have also been in a different position the one who investigates the claims of sexual harassment and makes the recommendations. I was trained in this by one of the consultants who worked with the EEOC in setting up the laws as they currently exist, so I have a pretty good grasp of what goes on.

    REPORT. Anything you personally observe or have happen to you. REPORT. Encourage others to do the same. But pick your battles. You don't want to be viewed as "Oh, Sarah's got it in for Bill". But at the same time, waiting for him to slip up in front of management can be an exercise in futility and frustration.
     
    Last edited: Feb 26, 2017
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  10. KatDini

    KatDini Well-Known Member

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    In life, you will meet and work with jerks of BOTH/ALL sexes.

    If Dude finds out he can't push your buttons, he'll ignore you.
     
  11. army judge

    army judge Super Moderator

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    Only you get to decide what's best for you.

    I never suffered fools easily, nor was I one to allow myself to be bullied.

    However, you need to ask yourself is this the hill I choose to make my last stand?

    If it is, all ahead full speed, nothing matters but this hill.

    Frankly, it's easier to take the approach, it's just a job.

    No matter your position or rank, unless you OWN the entity, it's just a job.

    The name on your paycheck or pay advice, is usually someone with just a job.

    If the job is unbearable, move on.

    If you're gifted, dedicated, talented, and among the best at what you do; others will readily welcome you.

    I've seen big ones get taken down by little ones, and little ones get big ones taken down.

    Even when your name is on your own cattle ranch, your own law firm, and other businesses; relationships are the key.

    You can't change anything you don't own.

    You can avoid boorish, brutish louts by limiting your conversations to business only.

    I never discussed anything on the job, but the boss' business.

    I never allow my employees to discuss anything with me, but company business.

    I also never mix business and leisure.

    You'll have to determine what works best for you.
     
  12. SeekingAdvice88

    SeekingAdvice88 Law Topic Starter New Member

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    Hi cbg, KatDini and army judge,

    I genuinely appreciate all the thought and effort that you've put into your replies, and for the time that you took to read through the details of my situation. I definitely have a lot to think about, and decide -- as army judge says -- if this is indeed the hill at which I wish to make my last stand. My mother would be rolling in her grave if she knew that social etiquette, formality and respect had become such rare commodities, and that issues like mine are widespread enough to necessitate a forum such as this one. However, I am extremely grateful that this medium does exist, and for the willingness of so many people to offer their advice.

    Whatever course of action I do take, I will be sure to return to this thread and provide as many details about the outcome as possible, should my situation be able to help anyone else with a dilemma similar to mine. Many thanks to everyone for your generous assistance!!

    -SeekingAdvice88
     
  13. cbg

    cbg Super Moderator

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    Best of luck to you no matter how it goes. I'll be interested to hear.
     
  14. ElleMD

    ElleMD Well-Known Member

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    What Bill said 7 years ago, and what someone at a former company said more than 15 years ago is irrelevant. For that matter, what Bill said to someone else and you only heard about second hand is irrelevant. Firing someone for sending a racist email to a bunch of other employees is a totally different situation. You can't compare the two.

    For now, continue limiting contact with Bill or anyone else you don't care for and if he says or does something to you directly, call him on it. "Bill, you know George is a married man. I have no romantic interest in him. Please stop making jokes about us as it is uncomfortable for us both. Larry, there is a seminar at the conference on X, which is directly related to our new initiative...". Simple, not dramatic, puts him on notice that you don't appreciate his humor. Sure the guy is dense as a brick and has the sense of humor of a 13 year old boy, but the first question HR should be asking is what you have done to resolve this yourself and if you have ever told him to stop. If he refuses to stop, then escalate it. Leave out the stuff from long ago and what was said to others and focus on what you experienced first hand.
     
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  15. leslie82

    leslie82 Well-Known Member

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    If you were in the military you could report someone for those comments even if you weren't the one they were directed at. Even if someone overhears comments and they are offended they can file an EO complaint. But in the civilian world...probably not so much.

    Why does it seem like it's so hard for adults to act like adults these days? Military or civilian - this sounds like something high school kids would talk about or do. Smh.
     
  16. cbg

    cbg Super Moderator

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    In the civilian world she can REPORT someone on a third party basis. What she cannot do is FORCE the employer to take the action she wants them to take. Or even tell her what action has been taken. Or if action has been taken.

    But she can REPORT until the cows come home, or until HR gets tired of it and fires her too.
     
  17. ElleMD

    ElleMD Well-Known Member

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    There is nothing to say that comments heard second hand or made to those outside the company cannot be reported, but the company does not have a legal obligation to act in that case. The OP can report it internally if she would like, but if the company chooses not to act, she can't then file an EEOC claim.

    We probably all know those adults who "never grew up", and or have no filter or sense of decorum. We might even be related to a few. It's nothing new.
     
  18. army judge

    army judge Super Moderator

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    Oh yes, I have several people without filters (or just don't care) in my family tree.

    Rumor has it that one actually became El Presidente de los Estados Unidos de América recently.
     

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