Last week we discussed growing sexual harassment scandal and some of the takeaways for employers. You can find that post here if you missed it. It seems however, that many people, including employers, are not 100% clear on exactly what behavior sexual harassment. Given that the issue is not going away any time soon — if ever, now seems to be an excellent time to make sure that we really do understand, so read on…
So what is sexual harassment? The Equal Employment Opportunity Commission, which enforces federal employment discrimination laws helps us out a bit with this definition: “unwelcome sexual advances, requests for sexual favors or other verbal or physical harassment of a sexual nature” in the workplace. So we are discussing harassment of a sexual nature in the workplace. Sexual harassment at work is generally a civil rather than a criminal matter (although the behavior can escalate to the point that a victim can also file criminal charges). Sexual action that creates a hostile work environment will pretty much always qualify as sexual harassment. What exactly is a hostile work environment? (More on that very shortly, I promise.)
Let’s first address this question: Is sexual harassment actually illegal, and if so, what makes it illegal? Absolutely, yes, sexual harassment at work is illegal under federal law. Some states even mandate or “encourage” sexual harassment training, even if only for public sector employees. Let’s look at the federal law, known as Title VII of the Civil Rights Act of 1964, which makes discrimination on the basis of sex illegal. Wait. Nothing in that prohibition mentions harassment. That is true, but court rulings, which expound on Title VII, and EEOC Guidelines, do. Employers with 15 or more employees are subject to Title VII. 19 states have laws that lower the minimum-employee threshold, and 17 states, plus the District of Columbia have done away with a minimum altogether. (Alabama and Louisiana actually have higher benchmarks–20 employees. Maryland’s minimums vary by county. North Carolina allows for filing a “public policy” claim against employers with fewer than 15 employees. The remaining 10 states either have no anti-discrimination laws or have adopted the federal 15-employee minimum.)
OK, let’s return to the issue at hand. The EEOC recognizes 2 types of harassment: quid pro quo, and hostile work environment.
Quid pro quo harassment occurs when an employee’s acceptance or rejection of unwelcome advances becomes the basis of employment decisions affecting the victim. So, for example, offering an employee a promotion or raise in exchange for sexual favors or a date is quid pro quo harassment. Demoting an employee, excluding him or her from meetings or conversations where s/he was previously included or similar adverse employment actions after the employee refuses a date or rebuffs a sexual advance also fits in this category.
Hostile work environment harassment occurs where unwelcome comments or conduct of a sexual nature either: a) unreasonably interfere with an employee’s work performance; or b) create an intimidating or offensive environment for the target. Offensive comments or jokes or gestures or physical conduct will tend to fall into this category.
When tolerating either type of harassment is effectively a requirement for continued employment such conduct will generally fall into one or both categories of sexual harassment.
Here are some examples of sexual harassment:
- Displaying inappropriate sexual images or posters in the workplace
- Lewd jokes, or sexual anecdotes
- Inappropriate sexual gestures
- Staring in a sexually suggestive or offensive manner, or whistling
- Sexual comments about appearance, clothing, or body parts
- Inappropriate touching, including pinching, patting, rubbing, or purposefully brushing up against another person;
- Questions about someone’s sexual history or their sexual orientation
- Offensive comments about someone’s sexual orientation or gender identity.
Please be aware that this is not an exhaustive list.
OK, we’ve defined sexual harassment, but we still need to address some common questions, such as:
Is it harassment if an employee consents to the advances or other conduct? Often, yes. The focus is not on the whether the target’s, participation was voluntary, but whether the conduct itself was unwelcome and created a hostile work environment. What does that mean? Meritor Savings Bank v. Vinson a 1986 US Supreme Court tells us that when the conduct itself is unwelcome, and so pervasive and severe as to effectively alter the conditions of employment, it’s harassment, even if the employee accepted the advances, or complied with the harasser’s requests. Why? The Court recognized that an employee who is sufficiently intimidated may not really have “consented”.
Is it harassment if the target didn’t suffer any economic harm? Yes. In the same case, the US Supreme Court said, “sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality.”
If the behavior complained of is mild or isolated, is it still harassment? Maybe not. The EEOC says that “sexual flirtation or innuendo” or “vulgar language that is trivial or merely annoying” probably doesn’t create a hostile work environment, since that would generally require a pattern. Generally a quick hug or one remark probably won’t be sexual harassment. The problem though is if the conduct is a bit more than that, a court will determine whether the conduct was sufficiently severe or pervasive as to be a pattern, giving rise to a hostile-work-environment harassment claim.
What if the alleged harasser is not the employee’s supervisor or otherwise in a superior position to that employee? What if it’s a co-worker, or even someone who is not the employer, such as a customer? The harasser can be a co-worker, a client or customer, as well as a supervisor or even a top executive of the company where the employee works. The harasser can also be of the same sex as the target. What’s more, the victim need not even be the intended target, it can be anyone affected by the harasser’s behavior.
What happens to an employer when one employer harasses another? An employer who receives a complaint and either ignores or fails to adequately respond to sexual harassment allegations can be sued and can be liable for damages, including back pay, compensatory and punitive damages and emotional distress. That’s not all. You also have to pay your attorney(s) to defend you in the case.
OK, we’ve talked enough. (Well, at least I have.) Let’s stop here for now and pick up again next week.
Good news! If you missed the live presentation, you can now get the recording of my webinar “Navigating the Employee Leave Overlap: FMLA, ADA and Workers’ Comp)”.
Click on the title above for more info.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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