Defining And Avoiding Sexual Harassment

Editor's note: In this edition of "Letter of the Law" we begin a two-part series on defining and avoiding sexual harassment in the workplace. The first installment introduces two forms of sexual harassment. The second installment, which will appear in the Fall edition of the newsletter, addresses further definition and resolution of this pertinent topic.

Letter of the Law Logo Sexual harassment in the workplace is a problem that is pervasive, insidious and not easily cured. By its nature, it involves the most embarrassing and intimate of details. It involves persons in positions of power (usually men) doing and saying offensive things, usually to women under their dominion. These factors make coming forward with complaints of sexual harassment a stressful task. Investigations into claims of sexual harassment as well as victims and witnesses must be treated so as to promote full disclosure of improper conduct and prompt resolution of valid complaints.

Sexual harassment claims increased 200% last year and judgments - excluding attorney's fees - averaged $200,000. It has been estimated that 90% of all sexual harassment claims are bona fide.

Title VII of the Civil Rights Act of 1964 made sexual discrimination in the workplace illegal; however, what we now know as "sexual harassment" was not defined until the 1980s when the EEOC, under Title VII, formulated guidelines to define sexual harassment.

According to the EEOC guidelines and the federal and state case law which have followed EEOCÍs guidelines, behavior is considered to be "sexual harassment" if one of three elements are present:

  1. unwelcome sexual advances
  2. requests for sexual favors
  3. other verbal or physical conduct of a sexual nature

Employers have a duty to maintain a working environment free of harassment. This duty requires positive action where necessary to eliminate such practices or remedy their effects. Unlawful harassment is conduct that has the purpose or effect of creating an intimidating, hostile or offensive working environment, has the purpose or effect of unreasonably interfering with an individual's work performance, or otherwise adversely affects an individual's employment opportunities. Employers are liable for harassment where the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective measures. Evidence that the harassment is pervasive may establish the element of "knowledge."

Employers are liable for harassment by supervisors regardless of whether the employer knew or should have known of the harassment. Employers are responsible for acts of harassment by co-workers where the employer or supervisor knew or should have known of the conduct and failed to take immediate and appropriate corrective action. Employers may be liable for the acts of non-employees where the employer or supervisor knew or should have known of the conduct and failed to take immediate and appropriate corrective action as feasible.

Two distinct forms of sexual harassment have been recognized by the EEOC and the Courts -

  1. quid pro quo, and
  2. hostile work environment.

The most common form is quid pro quo, or the exchange of sexual favors in return for keeping your job or getting a promotion. An employee who is sexually harassed may be the victim of a hostile working environment where the employee is harassed in a pattern of incidents that may not be, in and of themselves, sexual, but when considered together amount to harassment based on gender.

The essence of a quid pro quo claim is that an employee with the authority to control or alter employment opportunities asks or demands that a subordinate employee grant sexual favors in order for the subordinate to obtain or retain an employment opportunity or benefit. The conduct must be of a sexual nature and the alleged victim must belong to a protected group. While an express demand for sexual favors is not required, the conduct of the harasser must be reasonably interpreted as a demand for sexual favors in exchange for tangible job benefits. The conduct of the harasser must be unwelcomed.

The EEOC has taken the position that where an active participation in the conduct exists on the part of the alleged victim, the presumption is that the conduct is welcomed. To overcome this presumption, the victim must give the harasser notice that the conduct is no longer welcomed.

A hostile work environment is present where conduct at the workplace has the purpose or effect of unreasonably interfering with an individual's work performance, creating an intimidating, hostile or offensive work environment. The hostile environment must be sufficiently pervasive to alter the conditions of the victim's employment and create an abusive working environment. The victim need not be subjected to harassment for any extended period of time- one act of severe conduct may be sufficient to prove a hostile work environment. However, that act must be quite severe.

The more severe the conduct, the less pervasive the conduct needs to be to create a hostile working environment. One rape is enough; one dinner invitation is not. Trivial unwelcomed sexual conduct, such as asking for a date is not actionable unless it is pervasive. Unwelcomed intentional touching of intimate body areas is sufficiently offensive to alter the conditions of the working environment. Sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment. The victim need not show a loss of a tangible job benefit to successfully maintain an lawsuit based on hostile work environment, as they would under a quid pro quo claim.

The EEOC has recognized two separate types of hostile environments:

  1. An environment with conduct that is intimidating or offensive; and
  2. An environment that interferes with work performance.

The employer's liability for claims of sexual harassment depends upon who committed the harassment and whether any remedial action was taken.

It is important for an employer to handle a complaint of sexual harassment quickly and with due seriousness. One thing distinguishes sexual harassment charges that are resolved efficiently and inexpensively in house from those that are resolved in court - how they are handled when the complaint first comes in. Knowing what to do, who to call, when to act, where work should be carried out and generally how to handle a sexual harassment complaint is the best way to keep your company out of court.

To successfully resolve sexual harassment complaints, it is important to:

  1. Investigate the complaint promptly and professionally.
  2. The person chosen to investigate the harassment claim must be schooled in the constantly changing issues of sexual harassment law.
  3. Investigate the complaint immediately.
  4. If possible, conduct the investigation somewhere other than your company's offices.
  5. While conducting the investigation, it may be beneficial to put the alleged victim and the alleged "harasser" on paid leave.
  6. Only persons with a "need to know" should be informed that an investigation is taking place.
  7. MOST IMPORTANTLY, the company should make it absolutely clear to all involved that retaliating against any employee for making a sexual harassment claim is strictly prohibited under the law. The company should advise employees that any attempts at retaliation will result in disciplinary action, including dismissal.
  8. Once the investigation is completed, advise the alleged victim, the alleged harasser and the relevant employees that the investigation has been concluded. Take immediate steps to resolve the situation. If it is found that harassment has occurred, take steps to implement appropriate methods of assisting the victim.
  9. Also, most importantly, if sexual harassment has occurred, the company must do whatever is necessary to ensure that no further harassment occurs.
  10. Remember, an employee charged with sexual harassment has the right to know what the charges are that have been brought against him or her and to respond promptly. If the charges prove unfounded, the accused employee should be restored to his normal work responsibilities as soon as possible. This should protect the employer from many of the claims that could be made by a wrongly accused employee.

    Also remember that, if sexual harassment has occurred, the faster the harassment ceases, the healthier and more productive your employee becomes and the lower the company's exposure to potential damages.

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