By Wade W. Herring, II, published on January 9, 2000, in Employment Publication.
Sexual harassment in the workplace has been of increasing concern for employers and employees over the past 15 years. What is sexual harassment, and what can employers do to prevent it? Under what circumstances are employers liable for sexual harassment? What should employees do when they believe that they have been harassed?
SEXUAL HARASSMENT — AN ELUSIVE DEFINITION. Fundamentally, sexual harassment is discrimination because of sex, illegal under Title VII of the Federal Civil Rights Act of 1964.
•“Quid pro quo” harassment is a demand for sexual favors in return for a favorable employment action, such as continued employment, a promotion or an increase in pay. Implicit in the demand for favors is the threat of an unfavorable employment action, such as termination of employment, if the demand is rejected.
•“Hostile work environment” harassment describes a workplace in which discriminatory intimidation, ridicule and insult are so severe and pervasive as to create an abusive working environment that alters the victim’s conditions of employment. Conduct that may create a hostile work environment ranges from assault or other unwanted touchings to sexually suggestive comments and jokes.
Despite the widespread publicity about sexual harassment, misunderstandings persist about what it means.
Sexual harassment includes both heterosexual and homosexual conduct. Sexual harassment may include conduct motivated by romantic interest or sexual desire, but frequently is not. Sexual harassment is not about consensual conduct, but a victim’s silence is not necessarily the same as consent — employees do not complain if they are afraid or do not know how to do so.
• The law prohibiting sexual harassment is not intended to he a code of etiquette, but repeated crude and vulgar conduct may form the basis for a legitimate sexual harassment claim. Sexual harassment is not about whether the boss is a jerk, unless the boss is more harsh with one sex than with the other.
Sexual harassment may not be about “sex” at all — for example, if male workers haze a new hire because he is the new man in the workplace, the male victim of the hazing may have a claim for sexual harassment.
STRICT LIABILITY FOR EMPLOYERS. An employer is strictly liable for sexual harassment when the harasser is a supervisor and the employee-victim suffers a “tangible adverse employment action,” such as a demotion, a lost promotion or a termination. In other words, even if upper management did not know about the harassment, the employer can still be held responsible.
When the employee-victim does not experience a tangible, adverse, employment action, the employer may defend itself by proving that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior” and the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
MAKING SENSE OF THE LAW. Lawyers and judges can argue about how to define sexual harassment and when strict liability applies. Meanwhile employers have businesses to run, and employees have jobs to do.
•Setting boundaries at work. Although the Supreme Court has announced that Title VII was not intended to be a civility code for the workplace, the law has become just that. In a world where every day is “casual day” and the media saturates the environment with sexual imagery, sexual harassment law declares that the credo “anything goes” is no l0nger true, at least at work. The law requires employers to enforce boundaries, both physical and verbal, and mutual respect in the work place.
• Creating a written policy. Any employer with 15 or more employees (the number when Title VII applies) should have a written policy prohibiting sexual harassment, as well as harassment based on race, color, religion, national origin, age and disability.
The policy should briefly define harassment and reaffirm the company’s prohibition of unlawful harassment. The policy should also provide a complaint procedure, identifying at least two people (ideally, one male and one female) by name or position to whom complaints should be directed.
The policy should explain that complaints will be investigated. Because of the investigatory requirement, absolute confidentiality cannot be promised. The policy should make clear that retaliation against complaining employees or witnesses is also prohibited.
Finally, the policy should spell out that employees violating the policy are subject to discipline including termination. The policy should be included in any employee handbook, as well as posted on the employee bulletin board.
• Training employees. Each employee should be given a copy of the prohibition of harassment policy to be signed and maintained in the employee’s personnel file. Employers should train their employees to speak up when they find conduct objectionable or inappropriate and inform employees about to whom to make a formal complaint.
COMMUNICATION IS KEY. A written policy and follow-up training communicates that sexual harassment will not be tolerated. Informed employees understand their obligation to communicate when they feel that conduct is objectionable. Enlightened managers demonstrate that their business is a place where people are treated with mutual respect.
The views expressed in this article are solely those of the author. This article is intended for general
informational purposes only. It is not to be regarded as legal advice. Persons with specific questions should seek advice of counsel.
ABOUT THE AUTHOR: Wade Herring is a partner in the Savannah office of HunterMaclean, a practice firm concentrating in various aspects of business law and litigation.
This article was originally published in The Savannah Morning News, Exchange, on January 9, 2000.