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One of my favorite parts of giving harassment training is explaining the types of behaviors that can create a hostile work environment. If you haven't already, be sure to add lip licking to the list. (And, to be clear, we're talking about an alleged harasser licking his own lips.)
A recent case out of Connecticut, Lewis v. City of Norwalk, 122 FEP Cases 703 (2d Cir. 2014), reminds us that a plaintiff can base a sexually hostile work environment claim on lip licking. There, the plaintiff complained of lick lipping and leering. The court concluded, however, that the licking and leering weren't sufficiently severe to create a hostile work environment.
What can employers do to protect themselves? Provide free lip moisturizer?
As long as employees interact, there's the potential for one to take offense – sometimes justifiably. And once a claim gets made, in a very real sense, the employer has already lost. Even a victory in court can be an expensive and disruptive proposition.
Still, employers can take steps to demonstrate that they oppose harassment. These can include:
- circulating the anti-harassment policy,
- making sure the appropriate posters are up,
- raising the topic in meetings (with managers or subordinates or both),
- especially in California, providing the state-mandated harassment training (2 hours of management training every 2 years, and within 6 months of hire or transfer to California, for employers with 50 or more employees anywhere); and
- fairly, promptly, and thoroughly investigating complaints.
If you're an employer, you want every employee to know where to find the company's policy against harassment and whom to complain to if there's an issue. You also want them to know that, if they bring an issue forward, they'll be treated fairly.
Inevitably, harassment litigation focuses more on what the company did (or didn't do) than what the alleged harasser did. So take steps now to show that your company actively opposes this behavior.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
