When Licking A Popsicle At Work Is Considered Sexual Harassment

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popsicle provocatively eatingEating a Popsicle can be a federal crime. But only if you eat it so provocatively that it interferes with the work of your colleagues. The Finnish Lawyers Association released a video that shows a young woman enjoying her raspberry pink popsicle a little bit too much, while her middle-age male co-workers gaze on uncomfortably.

"Is this sexual harassment?" it asks. "We know the answer."

The organization, which represents thousands of legal experts in Finland, hopes to challenge common conceptions about what sexual harassment looks like, and who its victims and perpetrators can be.

"We fully intended to throw the cat among the pigeons and hope to stimulate debate about what is a very tricky legal area," it said on its website.

But would this kind of suggestive snacking be sexual harassment in the U.S.?

"Of course it's sexual harassment! Look at her! It's so phallic!" is the first reaction of Derek Smith, a sexual harassment attorney.


Sexual Harassment Defined

The definition of sexual harassment in the U.S. is "unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment."

In this case, Smith says, there is clearly visual conduct of a sexual nature. In many states, like New York, the conduct doesn't even need to be "severe or pervasive." It can just be one instance, one act.

Intent is also important. "If this woman is doing this to make it a sexual act, to make it look like a sexual act, that could be sexual harassment," says Smith.

"If she's just simply enjoying Popsicle, thinking 'oh this is a delicious Popsicle, I like my Popsicle!' OK, that's fine. But one of these people watching her doing this, if they find this offensive, even if it wasn't of a sexual nature in her mind, they have a right to complain."

Because that complaint would have a "good faith basis" the person couldn't be retaliated against, and the supervisor or human resources representative who received the complaint would need to take appropriate measures to prevent future offense.

For example, they may tell the woman to stop eating Popsicles in the workplace.

"There's nothing protected about eating a Popsicle at work," Smith points out.


Men Are Complaining More

Such a case would be unusual, however. The vast majority of sexual harassment claims are brought against men, according to Caren Goldberg, management professor at American University, and expert witness in discrimination and harassment cases.

"I can tell you that women in general find things more offensive than men do," says Goldberg. "Obviously it's in the eye of the beholder whether a particular depiction is considered harassment or not harassment, and it's up to the judge and jury to decide."

She notes, however, that men have been making an increasing number of sexual harassment complaints in recent years. But it's not clear if those men are bringing the charges against women or men.

A male employee may bring a sexual harassment complaint against a male co-worker or supervisor for "emasculating mockery," in Goldberg's words. "Like calling a man a sissy."


A Divine Right To Harass?

What's perceived as harassment in Finland, however, may not be the same as in the U.S. Goldberg has researched whether there are different norms in America and Ecuador with respect to sexual harassment, and found that American employees are more likely to perceive conduct as sexual harassment if it's their supervisor, while in Ecuador the opposite is true.

"In a lot of South American countries, the supervisor has a kind of divine right if you will," Goldberg says. "Sexual harassment is apparently one of those divine rights."

Figures on sexual harassment at work are always fuzzy, but European and American studies clearly show that sexual harassment is endemic to many workplaces. A 1998 report by the European Commission states that between 30 and 50 percent of women in every European Union country experience some form of sexual harassment at the workplace.

In the U.S., 22 percent of women and 5 percent of men aged between 18 and 64 have been sexually harassed at work, according to the Sex Discrimination Commission's 2008 sexual harassment telephone survey. Those numbers seem a good bit lower than Europe's, but when the pollers then described what behavior was considered sexual harassment, a further 22 percent of respondents reversed their initial "no's."

So even if the Finnish Lawyers Association's video might bear little resemblance to reality in most workplaces, the need for a public awareness campaign about sexual harassment is very real.

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