Former Vice President and 2020 Presidential hopeful Joe Biden has been in the news recently after multiple women accused him of unwelcomed touching, including kissing the backs of their heads, smelling their hair, and touching his forehead to theirs.  Many people spoke up in support of the women, agreeing that such behaviors were inappropriate, demeaning, and disrespectful.  Many other people defended Biden, saying his heart was in the right place, and some indicating that they welcomed Biden’s affectionate, physical style.  Still others supported both the women and Biden, recognizing that while Biden may have had only good intentions, the women were also entitled to feel uneasy by his actions.

Regardless of where you stand on the issue, let it serve as a learning opportunity and conversation starter.  Not everyone interprets behavior the same way.  Even someone with the best of intentions can act in ways that make others feel uncomfortable.

As we explain in our training on preventing workplace harassment, to meet the legal definition of sexual harassment, the conduct must be:

1. of a sexual nature;
2. unwelcome (viewed from the victim’s perspective);
3. severe or pervasive; and
4. the conduct has the purpose or effect of (a) unreasonably interfering with an individual’s work performance or (b) creating an intimidating, hostile, or offensive work environment.  Notably, this is an objective standard, meaning the conduct has to have such an effect on not just the individual, but on a reasonable person in the same situation.

Whether or not Biden’s behavior would rise to the level of unlawful workplace harassment, is it the type of behavior you should allow in your workplace?  Would it be acceptable under your current harassment and/or civility policies?  Should it be acceptable?  Do your company policies allow managers to kiss the backs of their subordinates’ heads?  What about an “aloha kiss and hug”?

These are difficult, but important discussions to have so everyone (including executives, HR, managers, and employees) is on the same page about what is and is not appropriate behavior in your workplace.  This is particularly important in Hawaii, where the “aloha kiss and hug” is a common greeting, and a culture of “don’t make waves” may hinder people from speaking up if it makes them uncomfortable.  Lacking clear policies and a common understanding of those policies can lead to low morale, turnover, and legal issues.

For example, in the case of Zetwick v. County of Yolo, Zetwick, a female correctional officer alleged sexual harassment based on the county sheriff, over a 12-year period, greeting her with unwelcome hugs on more than one hundred occasions, and a kiss at least once.  The sheriff argued that his behavior was innocuous and socially acceptable.  The district court found in favor of the sheriff, relying on several cases that found occasional hugging did not create a hostile work environment.  Zetwick appealed, and the Ninth Circuit Court of Appeals reversed the district court, finding those cases distinguishable, and holding that a reasonable juror could find sexual harassment under the facts presented in Zetwick’s case.  The County ended up paying Zetwick $98,000 to settle the case.

To learn more about preventing workplace harassment, HEC offers members training as part of the Fundamentals of Supervision series or as in-house training.  Members also have access to sample handbooks, including sample harassment policies, and various other resources on understanding and preventing workplace harassment.