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Allegations of sexual harassment in the worlds of media, politics, and entertainment have dominated the headlines in recent weeks. But what exactly is sexual harassment, and how can employers avoid liability when an incident of harassment occurs?
First, sexual harassment is a form of illegal sex discrimination banned by a federal statute known as Title VII of the Civil Rights Act of 1964. The words “sexual harassment” do not appear in the statute, which simply states that employers cannot discriminate against an employee’s terms and conditions of employment “because of” sex.
Rather, sexual harassment as a form of illegal sex discrimination has been established under decisions by the U.S. Supreme Court and regulations enforced by the U.S. Equal Employment Opportunity Commission. It is a topic that employers must take seriously or face significant liability. Having sexual harassment in the workplace can also lead to low morale, decreased productivity, and negative publicity that can tarnish a company’s reputation. Just ask CBS and NBC.
For these reasons, it’s important for company managers to know what sexual harassment is - and what it isn’t. Let’s start by looking at the text of the legal definition of sexual harassment:
“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”
Note the very first word of the definition is “unwelcome.” In the Supreme Court decision establishing sexual harassment as a form of sex discrimination, a bank employee claimed her boss sexually harassed her even though she agreed to go out with him dozens of times. The bank argued that the teller’s conduct was voluntary and that therefore the bank had no liability. The Supreme Court rejected that argument and stated that even if her conduct was voluntary, it was unwelcome.
Another reason the use of the word “unwelcome” is important is that it makes clear that whether something is sexual harassment or not is in the eye of the beholder or the recipient of the harassing conduct. That is, it is not a defense to a claim of sexual harassment that the harassment was unintentional. “I didn’t mean it” or “I was only joking” just won’t cut it. What matters is that the victim of the behavior perceives it as unwelcome.
Let’s go back to the text of the definition. It identifies two different types of sexual harassment. Clause one and two describe a type of sexual harassment known as “quid pro quo” harassment which occurs when sexual favors are demanded in return for job opportunities, salary increases, preferred assignments, or other benefits. Quid pro quo is a Latin phrase that is translated as “this for that” or “something in exchange for something else.”
Quid pro quo harassment typically involves a supervisor’s conduct toward a subordinate. The key here is that there is an imbalance of power in the relationship. A supervisor who tells an employee, “Have sex with me and the promotion is yours” would be an example of quid pro quo harassment.
For an employer to be held liable for a supervisor’s sexual harassment, the supervisor must have taken a “tangible employment action” against the employee. A tangible employment action is a significant change in employment status or benefits, such as when an employee is fired, refused a promotion, demoted, or reassigned to a position with significantly different responsibilities.
Clause 3 describes “hostile environment” harassment, which occurs when, according to the Supreme Court, “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” This form of harassment typically involves co-workers and occurs when a pattern of sexually offensive conduct runs throughout the workplace and the employer has not taken steps to prevent or discourage it. The key here is that the conduct is so severe or pervasive that it alters the terms and conditions of the victim’s employment.
Here’s an example of harassment that may not be so obvious: Several years ago, female employees at CBS alleged that David Letterman gave preferred assignments to women who dated him. A hostile environment was experienced by employees - male and female - who did not go out with Letterman and therefore had less desirable assignments. So hostile environment harassment can be experienced by those who witness consensual sexual relationships in the workplace.
Employers are also liable for the sexually harassing conduct of vendors, customers, or clients. This is so-called third-party harassment.
So what can employers do to protect themselves from liability for sexual harassment?
The Supreme Court has made clear that in cases involving supervisor harassment, an employer will not face liability if two things can be shown: (1) the employer has established written policies and complaint procedures and acted promptly to correct the sexually harassing behavior; and (2) the complaining employee failed to take advantage of the employer’s complaint procedures or other corrective opportunities provided by the employer.
What about hostile environment harassment? What are some things an employer can do to prevent this type of harassment in the workplace? The key thing is to provide training so that employees understand the employer’s complaint procedures and are told that they must report the offensive conduct to the company. Employers must also act consistently with their policies - whether the alleged harasser is a lowly intern or the company’s CEO - and make it clear that violation of the policy can lead to disciplinary action up to and including termination from employment.
In no event can the employer retaliate against an employee who alleges sexual harassment has occurred. Retaliation is a separate violation of Title VII. In a retaliation claim, the employee asserts that he or she has suffered harm as a result of making a charge, testifying, or participating in a legal investigation or proceeding.
In short, employers must be proactive in preventing, detecting, and addressing sexual harassment in their workplaces. As a means of preventing harassment, many companies require all employees annually to take an on-line training course on sexual harassment. All complaints of sexual harassment must be taken seriously. And once sexual harassment occurs, companies must take swift action to punish the harasser, up to and including termination from employment.
Baulig Law, 312 E. Walnut Street, Lancaster, PA, (717) 305-8926, firstname.lastname@example.org