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Labor Law: Should you tell the person to stop or tell the boss?

Responding to complaints of harassment in the workplace has become relatively routine since the #MeToo movement began.

An employee engages in conduct that is deemed unwelcome and offensive to another employee. Instead of telling the person to stop, the person offended now typically reports the offense to management or human resources.

The human resource department conducts an investigation.

If the allegations are true, even if the conduct does not rise to the level of creating a hostile work environment, the employee who engaged in the behavior is typically disciplined or terminated.

That is the new norm and consistent with good protocol.

A recent incident involving a friend has led me to question whether we have taken common sense out of resolving innocent and relatively minor offensive workplace interactions.

The incident involved an individual who has strong relationships with clients. He apparently misread his relationship with one of the clients and made a sexual innuendo, not toward her but a stray sexual remark. Instead of telling him she was offended and asking him to not make these remarks, she made a complaint to management.

Consistent with protocol, management investigated the allegation and disciplined the person making the remark.

The process was routine and uneventful — until I had the chance to hear the human side of the offender’s reaction.

The offender now knows that he was wrong and is extremely remorseful. He only wishes the person had just told him that she was offended and asked him to not do it again. Instead, she complained to his boss.

The law does not require that someone tell you to stop before harassment can occur. Once on notice, the company must properly address it.

When should a person tell the person to stop or instead report the conduct to the boss?

In most cases, individuals who are affected by the conduct will not tell the person to stop out of fear that the person will not react favorably and/or that there will be retaliation. This fear has legitimacy.

In a perfect work environment, we build trust. I follow the rule of the “never evers,” which is to never ever engage in behavior in the first place that is sexual or racial.

Where someone mistakenly makes a comment at work, ideally the offended person tells the offender to stop, and the other apologizes and stops — without retribution.

In an ideal environment, work groups trust each other enough to address petty slights and remarks between themselves, and then move on.


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