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Harassment: Sex, Religion

and Beyond

EMPLOYEE Version
STUDY GUIDE

Presented by

KANTOLA Productions
Additional copies of this guide are available from

Kantola Productions, LLC


55 Sunnyside Avenue
Mill Valley, CA 94941
USA

Tel: 800.989.8273 or 415.381.9363


Fax: 415.381.9801
E-mail: [email protected]

Visit our website


www.kantola.com
to learn more about our
videos and training guides.

Content provided by:


Linda J. Garrett, J.D.
Risk Management Services

© Copyright MMXII by Kantola Productions, LLC

All rights reserved. No part of this book may be reproduced or transmitted in any form or by
any means, electronic or mechanical, including photocopying, recording, or by any information
storage and retrieval system, without permission in writing from Kantola Productions, LLC.
This guide is for educational purposes only and is not intended to substitute for the advice of
counsel. Because this guide cannot address your specific situation, please use your own judgment
and the assistance of a qualified legal professional to the extent you believe appropriate.
Table of Contents

Harassment: Sex, Religion and Beyond


Study Guide
EMPLOYEE Version

Table of Contents

Pre-test  —
Preface  1
Introduction 3
Discrimination and the Law 5
Hostile Environment Harassment 9
Quid Pro Quo Harassment 15
“Victims” and “Harassers” 19
Action Steps for Victims and Witnesses 25
Retaliation 29
Summary – A Commonsense Approach 33
Post-test  —
Preface

Preface
This study guide is designed to be used as a supplement to the
video Harassment: Sex, Religion and Beyond and to provide you
with a review of the definition of illegal harassment, examples of
behaviors that “cross the line,” and exercises that will increase
your awareness of what is legal and what is not.

It also includes information that will be useful to you in fulfilling


your additional responsibilities:

• Not to participate in discriminatory or harassing


behaviors in your workplace.
• To comply with company policy and speak up if
you have concerns about anyone else’s behavior
on the job or in work-related environments.

The pre-test should be taken before viewing the video, and the
post-test should be taken at the end of the training session. Your
trainer may ask that you remove the completed post-test from your
workbook, sign it, and turn it in for recordkeeping purposes.
© Kantola Productions, LLC

1
Harassment: Sex, Religion and Beyond

2
Introduction

Introduction
This study guide accompanies the training video program,
Harassment: Sex, Religion and Beyond.

The video opens with an example of unwelcome sexual conduct


that takes place online in the social media realm. With today’s
ever-increasing access to personal technology and its impact on
the workplace, opportunities for harassment and bullying have
greatly increased. And in spite of attention-getting headlines and
a general awareness of the issues, face-to-face harassment and
discrimination also continue to occur in our workplaces.
© Kantola Productions, LLC

Your employer’s policies are intended to provide you with a


workplace free from unlawful conduct like discrimination and
harassment. But you need to do your part. Every employee has a

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Harassment: Sex, Religion and Beyond

responsibility to treat coworkers with respect and to speak up if


they experience or witness inappropriate conduct. Therefore, the
main goal of this program is to review how each individual can
contribute to an environment where people are free to do their
best work without the threat of unwelcome behavior.

We’ll talk about federal, state and local laws that protect our rights
as individuals. But rather than limiting our focus to purely legal
issues, we’ll also emphasize civility and common decency. We’ll
show how speaking up about bad behavior before it becomes
severe or persistent can help bring about better behavior —
and even help misbehaving coworkers to avoid more serious
disciplinary measures.

Bottom line: if everyone gets along and treats each other with
respect, your workplace will be more pleasant and less stressful.
Which makes your job easier, every day!

4
Discrimination and the Law

Discrimination and the Law


As recently as half a century ago it was not uncommon for
employers to discriminate against, or in favor of, certain groups
when hiring, promoting or providing job benefits.

For example, certain trades and professions were closed to


women, while some jobs were seen as unsuitable for men.
Individuals with disabilities did not have access to many
workplaces. And sometimes applicants were hired or rejected on
the basis of their national origin or race.
© Kantola Productions, LLC

Obviously, things are different now. So when did this change?

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Harassment: Sex, Religion and Beyond

In 1964, Congress passed the Civil Rights Act. Title VII of that
Act prohibited discrimination in the workplace based upon five
“protected characteristics”: race, color, religion, national origin
and sex.

Then, in 1972, Congress shored up this earlier law by passing


the Equal Employment Opportunity Act which created the Equal
Employment Opportunity Commission (or EEOC) to respond to
complaints about discrimination in the workplace.

Also in 1972, Congress passed Title IX of the Education Act


Amendments prohibiting discrimination in education and
vocational training, thus providing additional qualified applicants
from more diverse groups a broader range of opportunities.

Over the years, other “protected characteristics” have been added


by federal, state and local laws. These laws include the Americans
with Disabilities Act (and Amendments), the Age Discrimination
Act (covering anyone aged 40 or older), and recent federal
legislation that protects individuals from discrimination based on
their genetic information.

Harassment of individuals based on a protected characteristic has


the effect of discrimination because it tends to discourage them
from applying for a particular job, or once hired, it makes it more
difficult for them to do their job. This results in a denial of equal
opportunity.

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Discrimination and the Law

Discussion Questions:
Q) How do you know what is covered and what isn’t covered?
Especially since federal law continues to evolve?

A) Good point! And the situation can become even more


complicated by state and local laws and regulations — and there
are additional federal requirements for government employees and
contractors.

Here’s a general guideline that should help: avoid any


discriminatory comments or actions at work based on
characteristics that have nothing to do with the job. Examples
of these characteristics might include marital status, political
affiliation or sexual orientation, among many others.

Treat everyone equally. Focus on what you have in common with


your coworkers rather than on what makes you different. And
build relationships on the basis of courtesy and respect rather than
some stereotypical trait that might be attributed to a group.

What Would You Do?


A customer complains to you that a coworker has been rude and
disrespectful based on a legally-protected characteristic. This is
the first time you have ever heard such a complaint, and your
experience with this coworker has been consistently positive.
Should you ask for more details? Defend your coworker? Ask your
manager or supervisor to step in? What should you do?
© Kantola Productions, LLC

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Harassment: Sex, Religion and Beyond

8
Hostile Environment Harassment

Hostile Environment Harassment


Hostile work environment harassment is defined as “ongoing,
pervasive or severe behavior that unreasonably interferes with an
individual’s work performance, or creates an intimidating, hostile
or offensive work environment.”

Hostile work environment harassment


• Ongoing, pervasive or severe
• Interferes with work performance or
© Kantola Productions, LLC

• Creates an intimidating, hostile or offensive work


environment.

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Harassment: Sex, Religion and Beyond

Hostile work environment harassment includes unwelcome verbal


behavior, such as derogatory slurs or comments concerning an
individual’s race, national origin, or other protected characteristic.
Visual forms of harassment include such things as gestures,
posters, cartoons, or T-shirts. Physical behavior can include assault
or interference with a person’s work or movement.

Verbal
• Slurs
• Comments

Visual
• Gestures
• Posters
• Cartoons
• T-Shirts

Physical
• Assault
• Interference

Note that the behavior must be ongoing, pervasive or severe and


it must apply to a protected characteristic in order to be “illegal.”
But even though a single joke or inappropriate comment is not
likely to be considered illegal by the courts, it might still violate
your company policy. Most employers expect their employees not
to participate in any bullying or harassing behavior, whether or not
it crosses the line into illegal behavior.

And while harassment that is not specific to a protected


characteristic (such as sex or age) may not be illegal under anti-

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Hostile Environment Harassment

discrimination laws, it may nevertheless cause problems and


violate your employer’s anti-harassment policy. For example,
if individuals are being teased or harassed because they are
vegetarians, or fans of an unpopular sports team, this may not be
illegal. But your employer may ask everyone to leave the subject
alone in order to avoid hurt feelings and maintain a cordial
atmosphere.

Discussion Questions:
Q) In the video, we saw a waiter commenting on his coworker’s
accent in a rude way. It certainly seemed hostile, but was it illegal?
And what about the second waiter intentionally mispronouncing
his coworker’s name as a “joke”?

A) Making a comment once or twice does not necessarily mean


you are breaking the law. But even though one or two comments
might not be illegal, they can still be mean-spirited — or
extremely insensitive. Most employers will not wait for the
behavior to happen often enough to become “ongoing” or
“pervasive” before asking someone to stop.

Similarly, while one inappropriate joke would not usually cross


the line into illegal behavior, a one-time event that is “severe”
could cross that line, for example, unwelcome sexual touching or
groping.

Q) In the video, we saw an employee refusing to eat lunch with a


religious coworker. Why did the situation improve so quickly when
© Kantola Productions, LLC

the third employee took action?

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Harassment: Sex, Religion and Beyond

A) It’s not easy to stick up for coworkers when others are picking
on them. But peer pressure can be a force for good just as much
as a force for bad behavior. One individual’s decision to do the
right thing can usually bring others around and have an important
impact on the inclusiveness of any workgroup.

It’s important to speak up if you think a coworker is being


harassed. And if you’re not comfortable speaking to the harasser
directly, your supervisor or manager will want to know about any
mistreatment or bias so that he or she can take prompt action to
stop any bullying or harassing behavior.

Q) What if I slip and say something that offends? Or unthinkingly


tell a questionable joke, not realizing my mistake until it’s too late?

A) Again, one joke or remark does not usually mean that you are
a harasser, and does not usually meet the threshold of “ongoing,
pervasive or severe” conduct that would make the behavior
unlawful. But if you make a mistake and a colleague or coworker
is offended by something you do or say, it is best to acknowledge
the accidental slip and apologize right away. This makes for a
better atmosphere for everyone, and avoids hard feelings. Going
forward, take care to behave consistently in a manner that repairs
your image and rebuilds trust.

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Hostile Environment Harassment

What Would You Do?


Richard loves to kid around and most of his coworkers enjoy
working with him even though he is a bit of a “loudmouth.” You
have recently learned that he has been bragging to everyone who
will listen about how well his son’s Little League team is doing.
In fact, the team is dominating its division this season. Several
other employees also have kids in Little League, but their teams
are not doing so well and Richard’s bragging is starting to get on
their nerves. Then, yesterday he went out of his way to make fun
of a coworker’s child’s team, calling them “a bunch of pudgy little
sissies.” The coworker is furious. Is this hostile work environment
harassment? Should you get involved or will this make matters
worse?
© Kantola Productions, LLC

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Harassment: Sex, Religion and Beyond

14
Quid Pro Quo Harassment

Quid Pro Quo Harassment


When Congress initially included “sex” as a protected
characteristic, the focus was on discrimination against a person
based on his or her gender. Over time, sexual harassment as a
legal issue gradually came to the forefront, largely spurred by a
number of sensational cases involving quid pro quo harassment.

“Quid pro quo” means “this for that.” Quid pro quo harassment
involves someone with influence or authority over the victim who
is using his or her position to gain sexual favors. This person might
be a supervisor, able to reward the victim with good performance
© Kantola Productions, LLC

reviews, promotions and raises — or punish the victim with bad


performance reviews, demotions, or even termination. Because
of the power differential, the victim may feel pressured to comply
with the demands, “or else.”

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Harassment: Sex, Religion and Beyond

Quid pro quo harassment can take place in a person’s actual place
of employment or in any work-related environment.

Quid Pro Quo Harassment


• Someone in a position of power or authority
• Sexual demands in exchange for job benefits
and/or threatened loss of job benefits if refused
• Workplace or work-related environment

Quid pro quo harassment is considered to be so serious that even


one occurrence is illegal. An employee experiencing quid pro quo
harassment should definitely get help — either from his or her
immediate supervisor, someone in human resources, or anyone
else up the chain of command.

16
Quid Pro Quo Harassment

Discussion Questions
Q) When I was first starting out, I had a manager who insisted that
I join him for socializing and drinks after work. All I really wanted
to do was go home at the end of the day, but I went along with it
because I wanted to be on his good side. Was this quid pro quo
harassment?

A) A key word in your question is “insisted.” If this manager was


“insisting,” the implication is that you initially turned down his
invitations — yet he persisted. Since your choice would have been
not to socialize with this manager after work, you should have
been free to decline and the subject should have been dropped.
In hindsight, speaking to HR or someone else in your chain of
command would have quickly put an end to your manager’s
unwelcome requests.

Q) But this kind of socializing after hours happens outside the


workplace. Does it still count?

A) Yes, it does. Usually we think of discrimination and harassment


as unlawful behavior that occurs on-site in the workplace where
employees are actually doing their jobs. But it can occur outside
of the workplace too, whether at off-hours, non-sponsored private
social events involving managers or coworkers, or at a company-
sponsored event or training.

When it comes to discrimination and harassment, the important


thing is the connection to the workplace and what happens as a
result of the unwelcome conduct — not necessarily where the
© Kantola Productions, LLC

conduct occurs.

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Harassment: Sex, Religion and Beyond

What Would You Do?


You have just learned that a coworker has started dating a
manager in another unit of your company. You are feeling
somewhat alarmed because you believe that the manager is likely
to become the new division chief and that your coworker will end
up getting preferential treatment, leaving you with less desirable
work assignments. What should you do?

18
“Victims” and “Harassers”

“Victims” and “Harassers”


Who can be a “harasser”? Just about anyone.

This includes a coworker, boss, vendor, visitor, stranger or member


of the public. It could also be a supplier or contractor — even a
customer or client. Anyone connected to the workplace. In fact,
the harasser could even be you!

Your intention might be good. You might be trying to liven things


up, be complimentary, or tell a joke and get some laughter going.
© Kantola Productions, LLC

But your intention is not what counts. It’s the reaction of the
people around you that determines if your behavior is harassment
or not.

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Harassment: Sex, Religion and Beyond

Harassment is caused by unwelcome conduct. This has been


defined as “conduct that is not requested, not appreciated, and
not reciprocated.” That is, whether something is unwelcome or not
is viewed from the perspective of the “victim.”

Unwelcome Conduct
Conduct that is not requested,
not appreciated, and not reciprocated

While some things are clearly inappropriate at work — such


as crude posters or sexual cartoons — other things are not as
obvious. At times it can be difficult to know when behavior is
unwelcome because it depends on the individuals involved.

Behavior that feels pleasant and welcome from one person may
seem too intimate — and not at all welcome — from a coworker
who is disliked or not close. For example, a positive comment
to a colleague on the success of his or her recent diet may be
“welcome” coming from a close friend, but may seem much too
personal if announced in front of others by someone who just
happens to work in the same building. In fact, both the setting and
the individuals need to be taken into account.

Unfortunately, the unwelcome cues from the recipient aren’t


always that clear. So how can you tell? Pay attention to how
people are reacting. Are they smiling and returning your remarks
in kind? Or are they looking serious and pulling away?

If you find yourself hesitating to say or do something because it


might cross the line, it’s better not to say it or do it. You really don’t
want to find out the hard way.

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“Victims” and “Harassers”

It’s also important to remember that not only men are harassers
and not only women are victims. The truth is, of course, that
women can harass men and other women, and men can harass
men. It’s the unwelcome behavior that matters, not the gender of
the parties involved.

Similarly, members of a particular cultural or ethnic group


can harass members of their own group, for example by using
stereotypical insults or slurs.

So, who can be a “victim”? Again, just about anyone.

It could be the individual who is the target of the behavior. Or it


could be third-party witnesses who find the behavior unwelcome
and disruptive to their work.

For example, two coworkers who delight in pulling pranks on each


other may offend others who witness their crude jokes or lewd
antics. Similarly, the provocative dress and flirtatious demeanor
of one employee who enjoys sexual attention from his or her
coworkers may offend others who observe this behavior. These
third-party witnesses can be victims of harassment when they are
repeatedly exposed to inappropriate conduct even if the actual
participants are enjoying themselves and not finding anything
about the activity to be unwelcome.

Another complication is that individuals can change their


minds about what they find acceptable. Over time, even willing
participants may come to find the behavior unwelcome — or that
© Kantola Productions, LLC

it attracts attention from others who are not friends — and that’s
when problems start.

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Harassment: Sex, Religion and Beyond

So how can unwanted behavior be prevented in the workplace?


Every employee has the responsibility to conform with company
standards of professionalism in dress, communication and
demeanor — both for their own sakes and to protect others. And
every individual needs to be sensitive to the reactions of others,
and not participate in speech or behavior that is unwelcome or
makes others uncomfortable.

Discussion Questions
Q) Am I going to get in trouble if I pay someone a compliment?
For example, is it OK to say something like, “Wow, you look great
today,” or is this harassment?

A) The law recognizes that some very mild behavior or conduct


actually doesn’t create a violation. The US Supreme Court in one
case even noted that sexual harassment law isn’t meant to set
a “civility code” for the nation. The test is: “could this conduct
offend a reasonable person in this person’s situation, taking into
account the setting and context of the behavior?” If a reasonable
person COULD find the conduct offensive, and the complainant
DID find it offensive, then it has crossed the line and should stop.

The compliment you describe would be unlikely to offend a


reasonable person, unless, of course, it is said in a sarcastic,
lascivious or otherwise damaging manner.

Q) What if someone overhears me say something inappropriate,


but I didn’t even know they were there?

A) When we talk about who can be the victim of harassment in


the workplace, we have to remember that employers have an
obligation to all employees to provide a workplace free from

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“Victims” and “Harassers”

discrimination and harassment. And this means that third parties


who were not directly targeted have a right to object to something
they overhear or see or even learn about later. So, if two people
are making racist remarks about a coworker and he or she later
learns about it, there could be a claim based on that conduct.
Similarly, repeated unkind remarks about someone’s disability
behind their back could result in a hostile work environment
claim if the person learned about it after the fact.

Bottom-line: the workplace is not a social club. Your behavior and


conversations at work should be civil and respectful regardless
of who is present and how comfortable you might feel with any
particular group of coworkers.

What Would You Do?


You have an extroverted colleague who asks every new coworker
out to lunch — male or female, young or old. Yet you notice the
most recent new hire seemed uncomfortable with the invitation,
possibly interpreting it as a “come-on.” And now your colleague
has repeated this friendly gesture — ignoring the reluctance of the
new employee — to the point that even you’re not sure if he is
after something more. What should you do?
© Kantola Productions, LLC

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Harassment: Sex, Religion and Beyond

Action Steps for Victims and Witnesses


What should you do if YOU feel you’re being harassed?

• Say something right away!


• Tell the harasser.
• Tell your boss.
• Tell your supervisor’s boss if your supervisor is the problem.
•Get help from HR or anyone else up the
“chain of command.”

If you experience unwelcome behavior, it’s important to take


action rather than let it continue. If you are comfortable doing
so, tell the harasser. There’s a good chance that he or she did not
realize the behavior was unwelcome, and in the vast majority of
cases, the behavior will stop.
24
Action Steps for Victims and Witnesses

If you are not comfortable telling the harasser directly, talk to your
boss or someone in human resources. Or, talk to your boss’s boss
or anyone else in your chain of command. Your organization will
want to know if you are feeling harassed at work so something can
be done about it.

If you witness an incident, it is also important to take action. If


you’re unsure about what actually happened, you might want to
start by asking the victims whether it was unwelcome to them. In
this way, you can verify that you haven’t misinterpreted what you
saw. But if it is obvious that a violation has occurred, you should
follow your employer’s policy about reporting or responding to the
situation.

This is why you need to have a clear understanding about your


organization’s complaint procedure. Employers want to hear about
any issues — early rather than late. They can’t fix problems that
they don’t know about.

It can take a lot of courage to bring a complaint. But keep in


mind it shows you are concerned about your workplace and the
betterment of that workplace for everyone else. And, by acting
promptly, you may be able to help the harasser correct his or her
behavior before it leads to more serious discipline.

Discussion Questions:
Q) What if someone complains about MY behavior or accuses me
of acting inappropriately?
© Kantola Productions, LLC

A) STOP immediately!! Don’t wait for a chat with your boss. Don’t
wait for a call from HR. Don’t wait until a formal complaint is
filed. Don’t wait for a lawsuit!

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Harassment: Sex, Religion and Beyond

Q) I can’t imagine continuing to work with someone who has


complained about me. What should I do?

A) Here are some things that can improve the situation:

• If there has been an honest misunderstanding,


you might want to consider an apology. It makes
moving forward a lot easier in most cases.
• If you didn’t know the behavior was unwelcome,
now you do! Thank the person for informing you
of this valuable information. Even though you did
not mean to offend, apologize for causing offense.
• Don’t retaliate, shun, avoid or start gossip about
the person who complained about you. You don’t
have to be “best friends,” but you do need to be
cordial and professional.
• Follow your company’s procedures, involve HR,
and cooperate with any investigation.

26
Action Steps for Victims and Witnesses

What Would You Do?


You have noticed that several of your coworkers who carpool
together often joke around about each other’s social life (or lack
thereof), and make rowdy remarks about each other’s sexual
escapades. Even though you never join in, others do, and it seems
that everyone is enjoying the casual banter among friends. The
only female in the workgroup has occasionally made comments
about how immature they are, but has never really complained.
You feel bad when she angrily unloads one day about the gross
antics of your coworkers, and states that she “can’t believe that
you haven’t done anything to stop it.” What should you do?
© Kantola Productions, LLC

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Harassment: Sex, Religion and Beyond

Retaliation
When we think of retaliation, we often think of court cases
involving employers who fired individuals for rejecting unlawful
behavior.

But retaliation can come from coworkers, as well. In addition to


the more obvious means of causing harm to a fellow employee,
retaliation in the workplace can take very subtle forms. Such
methods can include shunning, avoiding or ostracizing those who
refused to participate in harassing behavior, or who complained
about it,, or participated in an investigation.

The law is clear about retaliation: it is illegal. Whether it comes


from employers or coworkers, it has the effect of discouraging the
lawful exercise of an employee’s rights. It also has a chilling effect
on others who might otherwise speak up.

28
Retaliation

Retaliation is extremely serious, and can be determined to


be illegal by the courts regardless of whether the underlying
harassment complaint is established or not.

But legality is only part of the picture. Retaliation is serious from


the human perspective, as well. Even if it weren’t against the law,
retaliation should be stopped. It’s a form of bullying and it hurts
people.

And knowing that you will be protected from retaliation should


make it easier for you to speak up if something isn’t right and do
your part in making your workplace better for everyone.
© Kantola Productions, LLC

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Harassment: Sex, Religion and Beyond

Discussion Questions
Q) OK, but isn’t it just human nature to be hurt or angry if
someone complains about you? Wouldn’t you just naturally avoid
them?

A) After a complaint in your workgroup, you need to keep your


focus on your work and keep your interactions neutral, civil and
job-related. You don’t have to suddenly become best friends. But
you do have to be cordial and polite. It’s not OK to refuse to speak
to the person or spread rumors or false accusations. Over time,
relationships between coworkers can improve if everyone just
starts by being courteous.

What Would You Do?


Last month, you heard that a coworker complained about the
religious symbols and slogans that decorated another employee’s
cubicle right next to yours. Your supervisor discreetly asked the
employee to take most of the religious items home, which he
did. Now, you want to hold a barbecue for some of the people
you work with but you don’t feel close to the coworker who
complained and you don’t plan to invite her. Could you be
accused of retaliation for not inviting this coworker?

30
© Kantola Productions, LLC

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Retaliation
Harassment: Sex, Religion and Beyond

Summary — A Commonsense Approach


Every employee has the right to work in an environment that is
free from discrimination and harassment. And every employee
shares the responsibility not to participate in harassing behaviors
or bring potentially offensive items into the workplace.

Keep in mind: it’s not just workplace activities that can cause
trouble. With the almost universal presence of cell phones, laptops
and other electronic devices, you need to think carefully about
how certain activities that you participate in on your own time
might spill over into your workplace. If someone sends you an
offensive email, don’t forward it to anyone (even if you’re pretty
sure they’ll like it). Emails, comments and photos you post online
can gain a life of their own and come back to haunt you.

32
Summary – A Commonsense Approach

If you experience unwelcome behavior—or witness it—be sure


to take action right away. Speak to the harasser directly if you are
comfortable doing so, or follow your organization’s policies to get
help before the situation becomes worse.

People are complicated and workplace relationships can be


complicated, too, especially in today’s more diverse workforce.
But in spite of our differences, it’s still possible to contribute to a
work environment that is free from harassment, discrimination and
retaliation.

This kind of workplace is more pleasant for everyone — and


ultimately makes your job easier and more enjoyable.

It’s just common sense.


© Kantola Productions, LLC

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Harassment: Sex, Religion and Beyond

NOTES:

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