Could you be harassing someone and not know it? Most business owners and managers are taken by surprise when confronted with a harassment case, says lawyer Brad Mitchell of Stevens & Lee. “The biggest nuance people miss is that they don’t know when they are harassing,” he says.
Mitchell says it’s the perception of the harassed person, not the intent of the harasser, that matters in the eyes of the law. Jokes and pranks that seem harmless to the joker can be humiliating or offensive to the victim, and lead to a harassment case (not to mention a toxic workplace culture.) Mitchell says it doesn’t matter if the target of the jokes laughs or doesn’t respond.
“Employers don’t know that what they intend is often irrelevant to whether or not a harassing workplace exists,” Mitchell says. “It’s what the person hearing the words or feeling the conduct perceives.”
Mitchell will give a free seminar called “Business Law: Harassment 101” at the Princeton Merchants Association general meeting on Tuesday, May 27, at 8:30 a.m. at the Princeton Public Library. For more information, visit www.princetonmerchants.org or E-mail firstname.lastname@example.org.
Mitchell has had a great deal of experience with harassment cases, always representing employers. In a recent high profile case, (Godfrey v. Princeton Theological Seminary) he defended the seminary against a lawsuit brought by two women who claimed the school allowed an elderly man to make persistent unwanted advances on them. The seminary ultimately won the suit, with the state Supreme Court ruling that asking someone out on a date is not harassment.
The most common form of harassment is something that can also come in a completely innocent form. “It’s jokes and pranks,” Mitchell says.” People will make people think they are funny, but are quite obviously to the average person, not funny, or inappropriate. They could be comments of a sexual, racial, or gender basis.”
Making off color comments isn’t necessarily harassment, but the context makes all the difference. “What you might say to your friends at lunch might be just as inappropriate, but it’s in a context where you can do it. If it’s in a professional workplace, they simply don’t fly,” Mitchell says.
A harassment lawsuit can cause variable levels of damage to a company. “It could be very damaging if the conduct is very bad,” Mitchell says. For example, a supervisor speaking to a subordinate asking her to meet him for lunch at a motel, or else she would be fired. “That would be extreme, and you would be in a bad situation if that happened,” Mitchell says. A more run-of-the-mill case in an office setting would be comments and jokes sent by E-mail. Even in a minor case, Mitchell says, the costs can add up. First, there is the potential monetary loss from a claim, plus the daunting cost of a potential trial defense. Just as damaging is the time a lawsuit can consume.
Different types of workplaces are more prone to different forms of harassment. In offices, E-mail is a big hazard, especially because it leaves an easily traceable record. Mitchell advises employers and managers to use their E-mail filters — not the ones that come with the software, but the ones in their minds. “Use the filter in your head to decide whether or not it’s appropriate to send a particular E-Mail,” he says. In outdoor settings, talking is more often the culprit.
Surprisingly, adults in professional settings sometimes indulge in pranks that can land companies in hot water. In one memorable case, Mitchell says, he represented a construction company that had lockers. One person, the target of harassment, would open the locker to find an “inappropriate toy” hanging there.
In another, a co-worker made racially charged comments and jokes to another co-worker for a period of years. The one on the receiving end of the jokes said nothing, so the offending party thought it was OK.
In both of those cases, it was obvious that the conduct was inappropriate, but trouble can arise when people don’t think about how what they are saying could be perceived. Part of Mitchell’s training is to tell companies that establishing clear policies about harassment to prevent that kind of thing from happening in the first place. “It’s amazing how many companies don’t have basic policies saying, ‘We don’t harass,’” Mitchell says.
Mitchell grew up in Rochester, where his father owned a construction company and his mother was a homemaker. He went to college at Columbia and got a law degree from Fordham. He began practicing law in 1991 and moved to Princeton in 1994. He has been with Stevens & Lee since 2004, when he and 10 other lawyers opened the Princeton office of the Manhattan-based firm.
Mitchell says the goal of his seminar is to help companies create better working environments, partly to avoid legal entanglements. “And on top of that, it’s the value of having a smooth running workplace, versus a workplace where there’s discord,” he says.