Don’t Let Harassment Avoidance Turn Into Sex Discrimination

By Kathleen Jennings (kjj@wimlaw.com)

Sexual harassment is still very much in the news, and discussion of this issue is not likely to end anytime soon. Today, we learned of another high-profile man who has been terminated from his job because of sexual harassment in the workplace. Not surprisingly, there is concern among some men that they will be unfairly targeted. Their solution: they will never, ever be alone with a woman at work. While this may be a creative way to prevent any “he said/she said” situations, it can also create another legal problem: sex discrimination. If this avoidance of female employees prevents those female employees from having the same access to management male employees, and also results in fewer opportunities for advancement for those female employees, then there could be grounds for those female employees to claim they are being discriminated against on the basis of sex. When a male manager refuses to have a meal alone with a female employee, or he refuses to travel on business with any female employees, but he does not hesitate to engage in those activities with male employees, that’s discrimination. Sorry guys, this is not a good solution.

Employees do fabricate complaints of harassment; they may be motivated by money, a desire to prevent termination of their employment, or malice against a particular supervisor or manager. Nevertheless, if a manager is afraid he will be accused of sexual harassment if he is ever alone with a female employee, this is an indication that there is a problem with that individual or the company’s culture.

For years, we have been teaching managers and supervisors how to make themselves “targets out of range.” In other words, do not engage in the kind of behavior in the workplace that can be used against you. As a general rule, the guy who is always telling dirty jokes is more likely to be accused of harassment than the guy who does not. Here’s a scenario: “Well, I did hear him tell some really off-color jokes, so it would not surprise me if he made that nasty comment about Mary’s breasts.” Don’t be that guy.

And don’t be that guy who refuses to be alone with any female employees. There is a middle ground: treat everyone with respect.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

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