Limiting Harassment Claims When Returning to IRL Engagement

It is April 2022 and after 2 years of pandemic-related in-person meeting restrictions (also known as meeting In Real Life (IRL)), we are seeing increases in employers permitting work-related travel. That, coupled with requirements for partial or full-time return to the office means that we are seeing an increase in claims of discrimination and hostile work environment claims. Apparently, re-learning appropriate social interactions at work is tough.

Some notes on phrases and statements that managers should consider removing from their “welcome back to the office” remarks when re-engaging with team members include (but are not limited to) the following:

• Nice to see you from the waist down.
• Last time we spoke I wasn’t wearing pants.
• You suddenly have more depth.

Why should these phrases be removed from a manager’s repertoire of opening remarks? Some may be clear on their face, but just to remove all doubt, let’s discuss each:

• Nice to see you from the waist down. What does it matter what a person looks like from the waist down, unless they are modelling shoes and socks? In such case, you likely would not have gone extended periods without seeing their shoes and socks. See the issue here? Couple that with the knowledge that there are body parts from the waist down which (unfortunately) are often a topic of conversation when we are handling sexual harassment claims. We understand many meetings have been remote, but let’s instead use, “Great to see you in person!”
• Last time we spoke I wasn’t wearing pants. I really hope I don’t have to explain why this shouldn’t be said. I also hope that you are all wearing pants to work (whether working from home or not). Some may say, “It’s a joke; it’s a joke.” Fine. Fine; but it isn’t funny. Many people will view it as a manager testing the water to determine whether other inappropriate jokes can be made in the future.
• You suddenly have more depth. I get it. Over the last few years so many interactions have been electronic where everyone is two-dimensional on screen. The comment, however, has negative connotations as to the person’s intelligence and this (coupled with any other harassing behavior related to a protected class), may be seen as related and increase the chances of suit.

As set forth above, the primary reason for excluding these terms and phrases is because each of these statements can legitimately be perceived as meaning something other than what the speaker intended. And remember, in most cases an individual does not “intend” to harass a co-worker, but the perception of the listener (and third parties) is what will control a finding of liability.

Keep all of the above in mind during your next manager training or as you assist managers in re-entry protocols. If you have questions, contact Tawny Alvarez or another member of Verrill’s Employment and Labor department.