The next question is, how are bullying and sexual harassment similar? That’s a really good question, because all sexual harassment you could probably qualify as bullying, but not all bullying is sexual harassment. I mean, the first distinguishing characteristic is to be sexual harassment, it has to be aimed at your sex or your sexuality. If you have someone who bullies everybody, male, female, then that may not be sexual harassment. It may not even be illegal under the federal employment statutes at all if that bullying is aimed at everyone indiscriminately or many people indiscriminately. If it’s aimed just at women or just at men because of their sexuality, then that becomes a basis for sexual harassment. I see a lot of people who come to see me who are in abusive—that’s the only word I can use to describe it—employment relationships a supervisor or a coworker where they’re suffering really egregious conduct that’s not illegal as far as the company is concerned. The company isn’t culpable because it’s not aimed at them because of their inclusion in a protected category. So not all bullying, not all hostile work environments, are actionable or illegal, but all that are aimed at you because of your sex or sexuality can be sexual harassment.
It has to be persuasive, and it has to be unwelcome. Sometimes a defense to sexual harassment is that the victim allegedly participated in the conduct. If it’s jokes or if it’s sexual talk or if it’s a consensual affair, then the defense will be it’s not unwelcome. Then, the other part of that is it has to be pervasive. It can’t just be what they call a stray comment. It can’t be once every so often. I find it’s very helpful if clients will keep a diary or a journal of what happened so that they can remember the details later. Frequently, I’ve seen in depositions where clients have been asked, well, tell me every time this happened, and they think, and they can only remember three or four occasions. They’re really subject to dismissal because they can’t prove that the conduct was pervasive, particularly when the harasser … And this frequently occurs, where the harasser waits until it’s just the victim and the harasser together so there are no witnesses. That’s another time when the victim really needs to have a good recall and to be able to describe in detail what happened, even if it’s just a statement that, “Well, this happened all the time. I can give you a few examples, but it happened daily, or it happened twice a day, or once every couple hours.” The more often the conduct happened, the more likely it is to be actionable as sexual harassment.
*This is a transcript of the Facebook Live video from 4-6-18 Click here to watch the video.