What is Intent vs Perception in Harassment?

Intent vs. Perception

Michael and Isabella both work in the same department. On a number of occasions, Michael has commented on Isabella’s clothing. Today he told her that she looks really good in her skirt. How does Isabella perceive the comment? What could be the intent of Michael’s comment? Is this an example of sexual harassment? Let’s examine this situation.

What is the Difference?

An important element in this situation is the difference between intent and perception. Sometimes we are unaware that our words or tone may have a different interpretation by the individual we are addressing. What you may intend to be a harmless comment or action may be perceived differently by the person on the receiving end. In This Case In this case, Michael may feel he’s just complimenting Isabella, but she may perceive his comment as a sexual advance. Whether or not you think something is just harmless fun or a friendly comment, you need to abide by our guidelines to avoid the perception of harassment.

Burden of Proof

If Isabella feels harassed by Michael’s actions, and she wants to file a harassment or discrimination case, it will be up to her to prove that the harassment or discrimination occurred.

The Importance of Perception

To put it another way, Michael might ‘perceive’ that his comments toward his colleague are innocent, but Isabella may take offense at what was said or done, regardless. Perception is much more important than intent.

Proof of General Discrimination

Leah has trouble pronouncing my name and says she just plans on calling me Ricky. When I asked her to call me Tariq, she shrugged her shoulders. Our colleague Sam just laughed and told me not to be so stuck up about it. Now they won’t invite me to lunch and I know that’s when they talk about strategy, which I want to be a part of. Tariq just joined Leah and Sam’s team. Leah has trouble pronouncing Tariq’s name and has told Tariq that she just plans to call him Ricky which is easier. When Tariq asked Leah to call him by his actual name, Sam laughed and said, “Don’t be so stuck up.” Leah and Sam refuse to invite Tariq to lunch and other team outings. Tariq feels very left out and has not been able to participate in certain team conversations about strategy which often occur over the weekly team lunch meetings. Tariq asked you if you think he could prove unlawful discrimination.

What two things should you say?
  •  No, because names are not a protected class.
  •  No, because Leah has trouble pronouncing foreign-sounding names.
  •  Yes, if he can show that he suffered an adverse employment action because of his protected class.
  •  Yes, because Leah is creating a severe and pervasive hostile work environment.
Thanks for helping Tariq

Tariq may have a viable claim for discrimination if he can show that Leah’s actions were intentional and her bias was a determinative factor in the decision not to invite him to lunch and other team meetings. Although rarely encountered, discrimination claims can also be proved by direct evidence of the individual’s discriminatory intent.

For example, if Leah had told Tariq that because of his national origin, ancestry, or race, she would not invite him to team meetings, that would be direct evidence of discriminatory intent by Leah.

Remember – employees who assert discrimination claims must show that they suffered an adverse employment action because of their protected class or trait. Proof of this “causal connection” is at the heart of employment claims.

Proof of Age Discrimination

I just promoted Keith to a senior position because he is the best candidate for the role. Another member of my team, Bill who is 55, had also applied for the same position on three different occasions and he was very unhappy with my decision. So, he filled a claim for age discrimination with HR. Aung is promoting one of her team members. She chooses Keith because he best suits the role. Bill, who is 55, also applied and was unsuccessful. This was Bill’s third application for this position. He takes a claim for age discrimination to Human Resources. Aung asks you what Bill needs to prove to support his claim.

What would you tell her?
  •  Aung and the company intentionally passed him over for the promotion because Aung feels he is too old to do the job.
  •  He has given the company over 15 years of excellent service.
  •  He has made three previous applications for the same position in the past.

He feels that he didn’t get the promotion because of his age.

Remember…

In order for an employee to make a legal showing of age discrimination, he must show that:

  •  He was qualified for the position or performed his job satisfactorily
  •  There was an adverse employment action (i.e., that he did not get the job or that he was fired), and
  •  A substantially younger individual with equal or inferior qualifications obtained the job
    Remember, it’s important that a manager can show that they hired a candidate because he was the best candidate for the job.

Legitimate Reasons

Bill has filed a claim against Aung on grounds of age discrimination. She needs to present legitimate non-discriminatory reasons why Bill didn’t  get promoted. Aung asks you what reasons she could give. Which two of these are legitimate reasons?

  •  The candidate who got the promotion was more qualified than Bill.
  •  As the job involves a lot of foreign travel, Bill was too old for the position.
  •  As the client base is young, a younger candidate would be more suited to the role.
  •  Bill has the qualifications but his performance hasn’t merited the promotion.
Thanks for helping Aung

Aung needs to present a legitimate, non-discriminatory reason why Bill didn’t get promoted. She must show that the candidate hired was best suited for the job.

Intent vs. Perception

I had just started at this great new job and was so excited to start. However, Joseph when introducing me to the team me made a joke about the state that I’m from. I asked around about Joseph and he’s known within the company for his sense of humor, though I didn’t find his joke very funny. Imani is a new hire who reports directly to Joseph, who is known in the company for his sense of humor. As Joseph introduces Imani to her new colleagues, he makes a joke about the region of the country Imani comes from. Imani asks you if this could be harassment.

What would you tell her?
  •  It could be. It all depends on the circumstances, including how Imani, and others in the group, perceive the comment.
  •  No, as Joseph is known to have a sense of humor, everyone will know he is joking.
  •  Yes, this is a definite case of harassment. Even if Joseph has a sense of humor, he shouldn’t make statements like this.
Thanks for helping Imani

Remember, you might not intend a comment to be offensive, but it may be perceived in that way. Remember, the impact of a perceived offense can be given greater weighting in law than the original intent.It’s important that you:

  • Understand how certain actions or comments may be perceived.
  • Recognize that you may be called upon to prove the intent or otherwise of your actions.

This is content from our Anti Harassment and Discrimination course

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