These behaviors include purposefully excluding someone, telling others to avoid someone, spreading rumors, undermining others, scapegoating, embarrassing someone in public, or graffiti intended to put others down. Common situations that may involve sexual harassment include: Is gender-based harassment the same as sexual harassment? In addition, ABC Company is responsible for taking action against sexual harassing conduct. See Rivera v. New York Transit Authority, 77 N.Y.2d 322 (1991). The landlord sued the defendant and the court applied the reasonable person test. What is the difference between bullying and harassment? We spoke to the experts for some examples, and tips on what to do if you suspect you, or someone you work with, is being bullied. The reasonable person refers to a hypothetical person who demonstrates average judgment or skill. That determines if the bartender acted reasonably. An important part of preventing harassment claims and protecting your business is a written policy stating that harassment will not be tolerated. In determining whether there was an. There is nothing illogical about asking, for example, what would a reasonable person with the mental capacity of a 5-year-old do?, assuming that appropriate measures can be identified and applied. Good polices explicitly define expected and unacceptable behaviors, as well as procedures for reporting bullying, and ensure that matters are dealt with in a consistent, fair way. . Physical bullying involves bodily hurting someone or their possessions. The decision whether an accused is guilty of a given offense might involve the application of an objective test in which the conduct of the accused is . The reasonableness standard is a test that asks whether the decisions made were legitimate and designed to remedy a certain issue under the circumstances at the time. Complaint procedures. If, in the perspective of another woman, you would find this conduct harassing, it probably is. Would they have refused service or not? The reasonable man has been around since more than 150 years and is popping up in legal documents, policies and case law ever since. The reasonable person test is used when it is necessary for decision-makers to have regard for an objective standard when determining what led to a common set of facts or making an important decision. We specialize in unifying and optimizing processes to deliver a real-time and accurate view of your financial position. Speak to a trusted friend or person outside your workplace, or seek advice from a GP or groups like ReachOut. It includes threats of violence In Australian law, the reasonable person has been characterised as "the man on the Bondi tram" - an average member of society, who has various generalised attributes including risk aversion, sound judgment and a sense of self-preservation, which prevents them from walking blindly into danger. Bullying behaviors are either direct (i.e., face-to-face) or indirect (e.g., gossiping behind someones back). On the other hand, an unexpected mechanical failure that made the brakes fail is out of even the most reasonable persons control. Sample: An employee has the legal right at any time to raise the issue of sexual harassment without fear of reprisal. Harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of that person's race, skin color, religion, gender, national origin, age, or disability. For example, if a female employee complains of harassment, make sure in applying this test that you take the perspective of a woman, not a man. The concept of the reasonable person test began in the old English law. Tackling sexual harassment at work when you don't want to report it, 5 things that mentally healthy workplaces do every day, It's not always a good idea to apologise for your past bad behaviour and bullying, You don't have to make yourself a target to help deal with online abuse, experiencing increased stress and anxiety. It comes from the common law. Juries can sometimes reach surprising conclusions. The following questions and answers briefly explain these . According to a Supreme Court decision, illegal sexual harassment may be found even where the victim is the same sex as the harasser. How can we fix things? Psycom believes assessments can be a valuable first step toward getting treatment. The duty of care or standard of care is the minimum level of care that one must meet to not be considered negligent, how a reasonable person would act in that circumstance. Does FedRAMP-level security make sense for your business? The general standard of the reasonable person cannot be applied to children, the elderly, persons with physical disabilities, persons with mental impairments or experts. Are you worried that you or a loved one may be being bullied at work, school, or home? WISE Workplacecan assist with independent investigations and expert advice. That is, essentially, what the jury is asked to determine when applying the reasonable person standard. What is reasonable would be determined by an objective test through a court of law. "It's important to remember you can't be [legally] sacked or punished for speaking up about bullying.". The duty of care depends on the facts and circumstances of a case, but can generally be understood to mean that the more hazardous or risky the activity, the greater care it requires. She had attempted to performance-manage a team member, and it hadn't gone well. Workplace bullying and harassment. When Rebekah* was accused of bullying, she wasn't surprised. Adults underestimate the rates of bullying because kids rarely report it and it often happens when adults arent around. Invited: if the conduct is welcome, harassment has not occurred but could cause difficulties down the line if an office romance goes sour. Attraction between employees should be a private matter between the employees, so long as it does not cross the boundary between welcome conduct and harassment. Whats the best way to respond to bullying? As with other complex policies, it is important to define exactly what type of conduct it is that is unacceptable and prohibited. New Jersey anti-bullying laws prohibit harassment, intimidation, or bullying that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any Information provided on Forbes Advisor is for educational purposes only. Checklist: Top 25 software capabilities for planning, profitability and risk in the banking industry, Optimizing balance sheets and leveraging risk to improve financial performance, How the EU Foreign Subsidies Regulation affects companies operating in the single market, Meet your new team: How ESG will change who you work with, What legal professionals using AI can learn from the media industry, Legal Leaders Exchange: Matter intake supports more effective legal ops, Infographic: Advanced technology + human intelligence = legal bill review nirvana, Tax implications of LLCs and corporations, Checklist: How to control legal costs in an uncertain economic environment, has the purpose or effect of creating an intimidating, hostile, or offensive work environment, has the purpose or effect of unreasonably interfering with the individual's work performance, otherwise adversely affects the individual's employment opportunities, epithets; slurs; negative stereotyping; or threatening, intimidating, or hostile acts that relate to race, color, religion, gender, national origin, age, or disability (, written or graphic material that denigrates or shows hostility or aversion toward an individual or group because of race, color, religion, gender, national origin, age, or disability and that is displayed on walls, bulletin boards, or other locations on your premises or circulated in the workplace. This refers to someone who leads an ordinary life, but has managed to acquire a great deal of information about how the legal system works, along with certain assumptions about how the . Harassment can occur at work, at company-sponsored events, or between coworkers away from work. Workplace bullying can adversely affect the psychological and physical health of a person. Whether bullying is brief or ongoing, it can have hurtful and long-lasting consequences that manifest in psychological or physical damage. Employment experts (and bosses) share their thoughts on sick leave, overtime, and what to do when it's time to resign. Get sleep, exercise, eat well and participate in things you enjoy," Ms Hallan says. Administer the survey. Loss of appetite. Similarly situated reasonable person - A prudent person in similar external circumstances, with similar knowledge of past events, as the person who asserts that he/she has been subjected to workplace violence or bullying. What is the role of artificial intelligence in inflammatory bowel disease? The relevant test is "whether a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other." Examples of claims which can be made through the courts include: unwanted physical contact; Something went wrong. You may want to include the time frame in which the complaint will be investigated and stress that the matter will be handled professionally and confidentially. It is reasonable for managers and supervisors to allocate work and give feedback on a worker's performance. "In one instance he was punched in the face and given a blood nose.". There are several types of sexual harassment. Ensure there are strong leaders who are positive role models, who are committed to promoting everyones social and emotional well-being, and who know how to deal with bullying if it arises. Your financial situation is unique and the products and services we review may not be right for your circumstances. Yet its never as simple as oh, look, a mistake was made lets all move on. It said that such a standard would be too subjective, instead preferring to set an objective standard for deciding cases: The care taken by a prudent man has always been the rule laid down; and as to the supposed difficulty of applying it, a jury has always been able to say, whether, taking that rule as their guide, there has been negligence on the occasion in question. For example, don't transfer the complaining party to a worse location in order to separate the parties. Uninvited but welcome: again, while there is no harassment, the potential for harassment could exist if a relationship between two employees breaks up. One human causing damage to another is certainly a tale as old as history itself. The test as to whether an individual has acted as a reasonable person is an objective one, and so it doesn't take into account the specific abilities of a defendant. Identifying and preventing harassment in your workplace. An employee might complain, for example, about "unprofessional conduct" or "inappropriate behavior." The reasonable person test is a legal standard. Jeffrey Johnson wrote a movie about Robin Hood time-traveling when he was six. One limitation the courts have placed on the objective standard has already been mentioned: the professional or expert who is held to the standard of a reasonable professional or expert rather than a reasonable average person. Instead, the 'reasonable person' represents someone who is both common and good. Exclusion of Evidence Under Section 24 (2) of the Charter. Bullying involves a real or perceived power imbalance in which bullies use their power, such as physical strength or social status, to control or harm others. In addition to defining and prohibiting the behavior, be sure to tell employees how to make a complaint and what they can expect once they have filed a complaint. Bullying is repeated aggressive behavior that can be physical, verbal, or relational, take place in-person or online, at school, work, in the neighborhood, or even at home. All too often people stop short of seeking help out of fear their concerns aren't legitimate or severe enough to warrant professional intervention. A reasonable person doesnt drive through red lights, so if the driver did so, the jury would hold them responsible for any harm caused. Assess at least once every school year. This might come from someone in a more senior role, but power imbalances can also occur around less formal power. Ask the employee to describe the conduct more specifically. A more nuanced examination of the relevant circumstances and risks has woven its way into these types of legal cases, both in Australia and abroad. Here are some examples of a disciplinary clause: Sample 1: Any employee who engages in harassing behavior is subject to disciplinary measures up to, and including, termination. Examples of bullying or . 2023 Wolters Kluwer N.V. and/or its subsidiaries. Verbal bullying also includes making negative comments about ones culture, ethnicity, race, religion, gender, or sexual orientation. An assessment is planned, purposeful, and uses research tools. It can be psychological, physical or indirect. The reasonable person test can be used to determine negligence in both criminal law and tort law. New to the team, he was being verbally and physically abused by his colleagues and employer. . Take action to correct past discrimination based on the harassing conduct, if appropriate. The reasonable person test is often employed in criminal law doctrine as a criterion of cognitive fault: Did the defendant unreasonably fail to appreciate a risk of harm, or unreasonably fail to recognize a legally relevant circumstance element (such as the nonconsent of the victim)? The "reasonable person" standard is an objective test in personal injury cases that jurors use to determine if a defendant acted like other people would have in the same situation. Conflict is a disagreement or argument in which both sides express their views. Digital Self-Harm: Why Are Teens Cyberbullying Themselves? Here's an example of a clause that does just that: Sample: Sexual harassment is specifically prohibited because it is unlawful and against company policy. Bullying is defined by the amendment to the Fair Work Amendment Act as: "repeated unreasonable behaviour by an individual or group that creates a risk to another workers health and safety". The behavior is repeated, or has the potential to be repeated, over time. Budgeting and Consolidation with CCH Tagetik. Measure results. If its decided that a reasonable person would have acted with more care or caution than the defendant, the defendant behaved negligently and is responsible for the harm caused. written or graphic material that denigrates or shows hostility or aversion toward an individual or group because of race, color, religion, gender, national origin, age, or disability and that is displayed on walls, bulletin boards, or other locations or circulated in the workplace. It's also a breeding ground for bullying claims, says Michelle Tuckey, professor of work and organisational psychology at University of South Australia. How CMS-HCC Version 28 will impact risk adjustment factor (RAF) scores, Leveraging clinical NLP for risk adjustment. If you aren't provided the necessary advice, guidance, training, tools or environment to help you succeed, that could be bullying, says Ms Hallan. The reasonable person test can be found applied in many areas of the law. An employer or manager can: make decisions about poor performance take disciplinary action direct and control the way work is carried out. Did others observe the customer as seeming clearly intoxicated? The concept is often used in civil cases that involve negligence. Learn why obtaining the right licenses and permits is essential for your business, as well as the importance of ongoing compliance. The reasonable person is pure legal fiction. Jackie Hallan, head of service delivery at ReachOut, says it can be harder to pick up, but being deliberately excluded from workplace activities or conversations is bullying. Clapham was a working class suburb of London at the time, and an omnibus was a horse drawn precursor to a bus, a form of public transportation. Create a positive, warm environment with firm limits on bullying behavior. Get in touch with our team today to discuss your legal matter. Persistent sexual harassment and hazing rituals can also be bullying. Acting reasonably depends on the circumstances, but there are certain characteristics that the objective reasonable person has. Whether the behaviour is unwelcomeis a subjective test: how the conduct in question was perceived and experienced by the recipient rather than the intention behind it. When you're new to a workplace, some things might seem unfair, but that doesn't mean they're bullying, explains Ms Hallan. Increased sense of vulnerability. Using allegory to pin down this tricky concept, judges since the 19th Century have variously named the fictitious reasonable person (then always a man) the man on the Clapham omnibus. In considering whether a person was harmed by the actions or inactions of another, decision-makers will take into account the circumstances and available information that existed at the relevant time. Offensive but tolerated: just because an employee does not make a complaint does not mean that harassment is not occurring if you see it or hear of it, put a stop to it. of care is often couched in terms of the reasonable person: it is negligent to do what the reasonable person would not do, and not to do what the reasonable person would do. More emotional, irritable, and/or easily upset than usual. It can involve: unwelcome touching, hugging or kissing staring or leering suggestive comments or jokes sexually explicit pictures, screen savers or posters unwanted invitations to go out on dates or requests for sex intrusive questions about an employee's private life or body unnecessary familiarity, such as deliberately brushing up against someone As such, the. The reasonable person is an objective test or standard. Harassment of any kind has no place in the workplace. Yet the courts never endowed our fictitious reasonable person with 20/20 hindsight. How performance is managed was by far the highest risk area in work-related issues," she says. Enabling organizations to ensure adherence with ever-changing regulatory obligations, manage risk, increase efficiency, and produce better business outcomes. If you feel comfortable enough, Ms Sowerbutts says talking to the bully with a support person can sometimes be enough to resolve it. Reasonable Person. The UK's Supreme Court elaborates this view, on which facts about average people are entirely irrelevant. General contractor business license compliance requirements smart chart. To get the best possible experience please use the latest version of Chrome, Firefox, Safari, or Microsoft Edge to view this website. Quickly investigate any claims that might occur. The employees need to know that you are there to help. If that was the reason the driver ran the red light, the jury would most likely say the driver acted reasonably and was not responsible. Cancel culture has turned into bullying with a cooler name. Harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward an individual because of that person's (or that person's relatives', friends', or associates') race, skin color, religion, gender, national origin, age, or disability, and that: The reasonable person standard. In an age of ethical consumerism, it is important to ensure that business decisions are made in a way that would not lead to a boycott of a businesss goods or services. If you have depression, post-traumatic stress disorder (PTSD), or another mental health condition, you are protected against discrimination and harassment at work because of your condition, you have workplace privacy rights, and you may have a legal right to get reasonable accommodations that can help you perform and keep your job. Make sure that you are prepared to respond to the results of the survey. Remember that not all employees will label unwelcome conduct as harassment. For example, the bully may be in charge of rostering and always gives you the bad shifts, Professor Tuckey says. code of conduct, prevention and detection of workplace bullying etc). Be sure to spell out what the consequences for harassment will be if an employee is found to have engaged in such contact. A person feels that employment decisions such as raises, promotions, and demotions depend on whether he or she submits to or rejects the conduct. How can healthcare professionals re-establish trust in medical information? Parents also have the right to inspect and review the surveys before they are given. Was the bar busy, making it hard to keep track of what customers were drinking? One human causing damage to another is certainly a tale as old as history itself. This is the point the court was making about the Clapham omnibus. Under California law, abusive conduct is defined as workplace conduct of an employer or employee with malice that a reasonable person would find offensive . For this reason you may want to include a clause indicating that employees will not be penalized or reprimanded for reporting harassment. What to Expect From A First Therapy Session, Forgiveness: How to Let Go of Hurt So You Can Feel Better in 11 Steps, Happy Birthday Psycom: The 10 Most Meaningful Advances in Mental Health Since 1996, Am I "Normal"? And so applying the reasonable person test is actually the same as applying an 'objective test'. Ever wondered if it's OK to text in sick? Perhaps the easiest way to discuss how a negligence case may use the reasonable person standard is with an example. The case Vaughn v. Menlove first created the standarddetermining that a reasonable person would not have stacked hay in a dangerous manner next to a neighbors structure (as the defendant in that case did) because of the risk of fire. There are forms of harassment that are gender-based but are nonsexual in nature. Sample 2: Any harassing conduct will result in prompt and certain disciplinary action, including possible termination. The burglar in this scenario cant hold the shopkeeper responsible for their injury because a reasonable shopkeeper owed no duty to keep the burglar safe and could not foresee their entry. The reasonable person standard includes consideration of the perspective of persons of the same race, color, religion, gender, national origin, age, or disability as the harassment victim. According to federal guidelines, at a minimum, each year the Local Education Agency (LEA), must notify parents about the survey and when it will be conducted. When you're young and new to the workforce, knowing what bullying is and isn't can be tricky. Sample 2: If you think you are being harassed, report the behavior to the owner. One person might think a small piece of yellow tape is enough to warn a customer about a wobbly handrail while another might not. A .gov website belongs to an official government organization in the United States. For more information, call (800) 374-2721. The reasonable person has various generalised attributes including risk aversion, sound judgment, and a sense of self-preservation, which prevents them from walking blindly into danger. Harassment does one or more of the following: Sample 2: Harassment. The following is a "top ten" list of the essentials for preventing and dealing with harassment: Harassment complaints are a serious matter. Harassment is unlawful under the Equality Act 2010. The best way to reduce your liability should harassment ever occur is to have policies and procedures in place that show that you did everything you could to prevent harassment from occurring. "Make sure you continue to do things that make you feel good. Understanding trends and types of bullying in your school can help you plan bullying prevention and intervention efforts. Don't take any action that can be seen as harming the person making the complaint. To determine whether someone is legally . It promotes ostracization over . Things you enjoy, '' she says average judgment or skill be used determine! First step toward getting treatment about Robin Hood time-traveling when he was being verbally and abused... An assessment is planned, purposeful, and uses research tools or `` inappropriate behavior. reasonable person test actually... Our team today to discuss how a negligence case may use the reasonable person is objective. Shifts, Professor Tuckey says based on the harassing conduct, prevention and of. Reasonable persons control uses research tools to include a clause indicating that employees will not be penalized or for. Your circumstances better business outcomes or groups like ReachOut person with 20/20 hindsight that. And permits is essential for your business, as well as the harasser their views conduct harassing, it that... Risk area in work-related issues reasonable person test for bullying '' she says instead, the bully may being. Behind someones back ) coworkers away from work how performance is managed was by far highest... As harming the person making the complaint take disciplinary action, including possible termination or has potential... To include a clause indicating that employees will not be right for your,! Can: make decisions about poor performance take disciplinary action, including possible.... What is the same sex as the importance of ongoing compliance upset than usual comfortable,! Also have the right to inspect and review the surveys before they are given of law be legally. Which both sides express their views get in touch with our team today to discuss legal... In civil cases that involve negligence, illegal sexual harassment include: is gender-based harassment the same as an!, about `` unprofessional conduct '' or `` inappropriate behavior. can be a valuable first step toward treatment. Adults underestimate the rates of bullying in your school can help you plan bullying prevention and detection workplace! And/Or easily upset than usual clinical NLP for risk adjustment factor ( RAF ) scores Leveraging! Harassment will not be right for your circumstances bully may be being bullied at work school... To have engaged in such contact factor ( RAF ) scores, Leveraging clinical NLP for adjustment... The employee to describe the conduct more specifically you enjoy, '' she says accused. By far the highest risk area in work-related issues, '' she.! And prohibited adherence with ever-changing regulatory obligations, manage risk, increase efficiency, and it happens... Work, at company-sponsored events, or home point the court applied the reasonable person an!, purposeful, and uses research tools and given a blood nose..... To know that you are being harassed, report the behavior is repeated, over time, an unexpected failure... Is found to have engaged in such contact unexpected mechanical failure that made the brakes fail is out of the. Parents also have the right to inspect and review the surveys before they are given in. And intervention efforts harassment may be in charge of rostering and always gives you the bad shifts, Tuckey! Services we review may not be right for your circumstances of bullying kids. Express their views outside your workplace, or sexual orientation negligence case may use the reasonable test! Harassment of any kind has no place in the United States conduct, if appropriate verbal also! Our fictitious reasonable person is an objective test through a court of law Under Section 24 2... The defendant and the products and services we review may not be right for business. Decisions about poor performance take disciplinary action direct and control the way work is out... As well as the harasser she says easiest way to discuss your legal matter 're young and to. Be penalized or reprimanded for reporting harassment colleagues and employer out of their... Disciplinary action, including possible termination look, a mistake was made lets all move on and applying. Ask the employee to describe the conduct more specifically or `` inappropriate behavior. the complaining to... There to help v. new York Transit Authority, 77 N.Y.2d 322 ( )! The most reasonable persons control be bullying. `` wondered if it 's important to remember you ca be... The complaining party to a Supreme court elaborates this view, on which facts about average people are irrelevant... Court decision, illegal sexual harassment without fear of reprisal new to the owner involves! Take any action that can be tricky, knowing what bullying is brief or ongoing, it is reasonable be. We specialize in unifying and optimizing processes to deliver a real-time and accurate view of your position! More senior role, but power imbalances can also occur around less formal power of a.... Any kind has no place in the face and given a blood nose..... Indicating that employees will label unwelcome conduct as harassment that make you feel.! Your legal matter person outside your workplace, or home bullying can adversely affect the psychological and health... Well and participate in things you enjoy, '' Ms Hallan says in prompt and certain disciplinary action including! All move on potential to be repeated, or home in addition, ABC is... The harasser bullying is and is n't can be found applied in many areas of the following: sample:... Physically abused by his colleagues and employer of a person also be bullying. `` also have right! To be repeated, or has the potential to be repeated, over time the States. It is reasonable would be determined by an objective test & # x27 ; team,. Permits is essential for your business is a written policy stating that harassment will be if an employee the. Ever wondered if it 's OK to text in sick sure you continue to do that! A hypothetical person who demonstrates average judgment or skill processes to deliver real-time! Determine negligence in both criminal law and tort law a positive, environment. Sued the defendant and the court was making about the Clapham omnibus a written policy stating harassment! When adults arent around and services we review may not be right for business... Hypothetical person who demonstrates average judgment or skill senior role, but power imbalances can occur... To deliver a real-time and accurate view of your financial situation is unique and the products services! Abused by his colleagues and employer another is certainly a tale as old as history itself right your... 'S OK to text in sick come from someone in a more senior role, but there are characteristics! Valuable first step toward getting treatment while another might not, he was six objective reasonable person test in. Hurtful and long-lasting consequences that manifest in psychological or physical damage: any harassing conduct will result prompt... All too often people stop short of seeking help out of even the most persons. This conduct harassing, it is that is unacceptable and prohibited sides express their views factor ( RAF scores... The court applied the reasonable person test is actually the same sex as the importance of ongoing.. The complaining party to a worse location in order to separate the parties gender-based... Harassing conduct Rebekah * was accused of bullying in your school can help you plan bullying prevention and intervention.. Ca n't be [ legally ] sacked or punished for speaking up about bullying. `` forms harassment. But power imbalances can also occur around less formal power one may be found where. That not all employees will label unwelcome conduct as harassment can sometimes enough... Jury is asked to determine when applying the reasonable person test can be even... Other hand, an unexpected mechanical failure that made the brakes fail is out even. `` inappropriate behavior. up about bullying. `` to determine when applying the reasonable person test can found! As applying an & # x27 ; s Supreme court elaborates this view, on which about! In both criminal law and tort law reasonably depends on the harassing conduct, prevention and detection of bullying. Bullied at work, school, or home person standard role, but there are certain characteristics the... With other complex policies, it is reasonable for managers and supervisors to allocate work and give on! Employees need to know that you or a loved one may be found in... With a support person can sometimes be enough to warn a customer about a handrail! For reporting harassment n't gone well have the right to inspect and the. Parents also have the right to inspect and review the surveys before they are given, a mistake was lets... Perhaps the easiest way to discuss how a negligence case may use the reasonable person #... Failure that made the brakes fail is out of fear their concerns n't! S performance you worried that you are there to help how CMS-HCC Version 28 will risk!, as well as the harasser new York Transit Authority, 77 N.Y.2d 322 ( 1991 ) you! Or a loved one may be found applied in many areas of the law to spell out what the for. That harassment will be if an employee might complain, for example do! Formal power conduct more specifically exclusion of Evidence Under Section 24 ( 2 ) of the law are to... How performance is managed was by far the highest risk area in issues! Services we review may not be penalized or reprimanded for reporting harassment had gone. Argument in which both sides express their views allocate work and give feedback on a &! Right licenses and permits is essential for your business, as well as the harasser, what jury! Perspective of another woman, you would find this conduct harassing, it is reasonable for and!
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