How to Avoid a Sexual Harassment Claim

Nobody wants to spend time with their agency’s legal staff to deal with a mess that could have been avoided (see “How to Stay Out of Your Lawyer’s Office”). One of those messes is being involved in a sexual harassment claim.

So, what do you do? You start by acknowledging that as an executive, you set the tone for your workplace. You treat each member of your staff with respect and treat them fairly and equally.  

Not only do you not engage in unwelcome behaviors, you understand that it is your responsibility to ensure that no one else engages in them. Make sure all complaints are investigated vigorously and all complainants are protected against retaliation. Post the agency sexual harassment policy prominently and make sure you and all your employees attend mandatory training.  

A good rule of thumb, of course, is simply to treat your employees as you would want members of your family to be treated. But for those looking for more concrete guidance on how to avoid a sexual harassment claim, here are five straightforward suggestions for the workplace.

1. Do not make, mention or allude in any way to a sexual request. One form of sexual harassment is known as quid pro quo harassment. This occurs when a condition of someone’s employment is based on whether he or she satisfies a sexual favor. Such a claim may arise, for example, if you suggest (or just hint) that an employee will receive something good (a raise, a promotion), or avoid something bad (a poor review, a dead-end assignment), in return for satisfying a sexual request. There is simply no opportunity for such claims if you avoid any and all sexual requests in the workplace.  

2. Do not touch. You may think a pat on the back or a quick neck massage is fine. The problem is, it is not your body that is being touched. And contrary to what you may think, touching may not be welcome. And it is the unwelcome nature of the conduct that can give rise to a complaint. Make it easy on yourself and follow a simple rule. Just don’t touch, unless it’s a simple handshake.

3. Do not engage in sexual joking or banter or allow sex talk of any kind. It doesn’t matter how funny you think something is or whether anyone in the immediate conversation is offended. Do not contribute to or permit a hostile work environment, which is another form of sexual harassment. Sex talk simply doesn’t belong in the workplace. There are plenty of other things to talk about.    

4. Do not comment on an employee’s appearance. Unless there is a business reason for the remark—an employee violates an agency dress code, for example—just don’t comment. You may think it’s just a friendly observation, but it can be a slippery slope once you start making observations about an employee’s attire or shape or weight. Just don’t offer your views.  

5. Do not assume it is consensual. So, you understand all the advice, but this time it’s different. You feel so strongly, and she or he has been so nice to you. The attraction must be mutual, right? They would welcome your advances, right? Do not assume so. Do not let desire and an assumption override your common sense. Also remember that you are responsible for your conduct around the clock—that includes holiday parties too. If you need a simple rule: Avoid supervisor-subordinate sexual relationships altogether.

Remember that your actions set the tone for the office. Respect is the key. Respect for every employee and respect for the work that is being done.

Don Personette spent 30 years in government, including 18 years as deputy chief counsel and nearly three years as chief counsel for the Secret Service.