Horseplay or harassment? Use common sense

Employers sometimes have to make judgment calls: Is that misbehavior plain old horseplay … or a serious case of sexual harassment? The difference often comes down to context.

Given the cost of recruiting and training workers, you probably don’t want to fire everyone who ever pulled a silly prank. But you can’t harbor sexual harassers or promote a workplace that is objectively and obviously hostile.

Give yourself some flexibility with a progressive discipline system.

Recent case: Randall worked as a driver for Anheuser-Busch. He complained when a co-worker pulled up his shirt and began licking his chest. That prompted managers to call a meeting in which they explained the company’s anti-harassment policy.

However, Randall later reported that two co-workers had separately walked up behind him and pulled down his pants, exposing his buttocks. This time, the co-workers were compelled to take an online course on the importance of showing respect for co-workers.

Randall was offered counseling, but declined. He did ask for a few days off, which was approved. Randall was also informed that the company would post anti-harassment posters around the workplace.

A few weeks later, Randall went out on workers’ comp for an unrelated injury and never returned. Then he filed a lawsuit, alleging sexual harassment.

But the court dismissed his case, concluding what Randall had endured was more akin to horseplay than sexual harassment and that the employer had appropriately addressed his concerns. (Black v. Anheuser-Busch, No. 14-CIV-2693, SD NY, 2016)