By Richard B. Cohen

Original Source: National Post

We all like to joke, tease, prank, and – face it – it sometimes gets a bit out of control, and the language gets a little “salty.” All in good fun, in the right place and context.

But not in the workplace. Even by the water cooler.

The workplace is for work. Yes, we can do our best to try and enjoy our work, but the primary purpose is to make a living. And the employment discrimination laws are in place to ensure that we all get a fair shot, free of sexual harassment.

At least that’s the theory.

But what is sexual harassment? I know, I know – among other things, it is severe or pervasive unwanted or non-consensual touching or comments. But is there a bright line to tell us when salty jokes, flirting, or “playful” teasing crosses into sexual harassment?

And how about a compliment or casual remark such as “Hey, I like your dress,” or “You look like you’ve been working out.” Can this be considered sexual harassment? Is one such comment taboo – or does it become taboo if done repeatedly?

A compliment is not a simple thing; think about what a compliment may be seen as or used for in the workplace, which is typically male-dominated. It may be meant as an innocent remark, or it may reflect the power differential between two people. Not so simple.

Do we want a workplace devoid of humor, kibitzing, and playfulness?

Finally, and most importantly, the question must be asked whether a workplace that permits or ignores sexual banter inexorably leads to a workplace that is a hostile environment?

These are, indeed, not easy questions. But the short answer may be easy, even if we chafe at its repercussions for workplace collegiality:

Don’t do it! The stakes are too high!

Compliments Into Banter Into Harassment: Is There A Bright Line?

It depends.

Those bedeviled by this question span the globe; it’s not an issue just in the U.S. It seems that a balance needs to be struck between prohibiting harassment and creating a work environment that may be “sterile.”

Leanne Italie, writing for the Associated Press, asked, “Are workplace compliments focused on looks or other personal details like dress ever OK? Is the alternative a more sterile professional life? When do such remarks rise to actionable harassment, or become worthy of a friendly rebuff or a trip to human resources?”

As Howard Levitt of the Financial Post in Canada said, “The line between sexual banter and harassment can sometimes be indistinct, even blurred. But crossing it is costly.”

So how does one tell where the line is?

Well, context matters, as well as differences between the personalities of people. Each one of us has a different personality, mood, and sensibility. Furthermore, the words and tone used (respectful? sarcastic? leering?),, as well as facial expressions and posture, must be taken in context.

Perhaps one of the better descriptions of the distinction between banter and harassment that I found is from New Zealand:

The former is often welcome and can help boost collegiality and culture. The latter can have a devastating effect on the workplace, create significant legal risks for an organisation, not to mention result in significant loss of productivity, plummeting staff morale and high turnover. … The important thing to remember is that it is not the intent of the person making the comments or jokes that matters. It is how they are received and perceived by others. … Every individual is different and what one person might brush off as a bit of harmless fun can have a serious and detrimental effect on someone else.

Times Live of South Africa quoted Professor Bonita Meyersfeld, director of the Centre for Applied Legal Studies at Wits University, who said that “The line between a compliment and sexual harassment is a fine one and overstepping it might affect a company’s bottom line.”

She also noted that sexual harassment included “othering” – “intimidation that highlights gender, culture, religion or race,’” and “also encompassed remarks that might seem to be compliments but were made based on gender, for example.”

Think power differential.

A Timely Illustration

This issue is hardly hypothetical: just this week, Kathryn Rubino wrote in these pages about a newly-filed Biglaw harassment lawsuit, and noted that the plaintiff partner alleged “that her physical appearance was a frequent topic of conversation” during her time at the firm, and that the firm chairman allegedly “frequently complimented Plaintiff’s appearance, describing her as ‘elegant’ and ‘glamorous’ and praising her ‘presence’ and ability to ‘light up a room.’”

Innocent compliments, right? So what’s the prob?

However, the allegations did not stop there. The plaintiff alleged that “every time [a particular partner] saw Plaintiff in the office, [he] made suggestive or inappropriate comments about her appearance. He drew close to her in a lascivious manner and made inappropriate comments regarding her appearance, body, clothing, or ‘sexiness.’”

Construed most benignly, just a little sexual banter, right? Oh, those Biglaw shenanigans! What fun-loving guys!

But not to the plaintiff.

Of course the lawsuit mostly claims gender pay disparity – but the allegations of “compliments” and “banter” seem to frame the case, and suggest, if true, a workplace that has no boundaries. And the comments, as alleged, sure sound like they crossed an otherwise hazy line into outright sexual harassment.

Takeaway: A while, ago someone said to me that while it might sound overly strict, a cost-benefit analysis says that it doesn’t pay to engage in sexual banter. It’s a hazy line and easy to cross, so use your best judgment, but err on the side of not doing it or not saying it.

Good advice.