As with most of the employment law issues we have been discussing in recent issues, claims of sexual harassment and retaliation can result in substantial damage to your company, both in dollars and in employee morale. To protect both your employees and your company, it is important to be familiar with the best practices for preventing sexual harassment, and the best way to handle any sexual harassment claims that may arise. This article will explore the two types of sexual harassment claims, as well as some steps that employers can take to foster a dynamic, functional, and respectful workplace environment. In our next issue, we will discuss how best to investigate and resolve claims of sexual harassment and avoid claims for retaliation.
First, it is important to know the general outline of the laws that protect individuals from sexual harassment in the workplace. In 1986, the Supreme Court of the United States ruled that sexual harassment is a violation of Title VII of the Civil Rights Act. Title VII applies to employers with fifteen or more employees. The Equal Employment Opportunity Commission (EEOC) is a federal agency that investigates claims of discrimination.
Most states also have laws that mirror the federal law and prevent discrimination based upon sex. Some states require even fewer employees for harassment claims than they require for other types of discrimination claims. Many states also have their own agencies that investigate and enforce state laws regarding discrimination.
Sexual harassment is a form of sex discrimination. It is defined by the EEOC as unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. It does not necessarily have to be sexual in nature, however. It can also include offensive remarks about a person’s sex. However, the law is not targeted at simple teasing, offhand comments, or isolated incidents that are not very serious.
Sexual harassment can take many forms, but there are two primary types of sexual harassment claims. The first is colloquially known as “quid pro quo harassment,” and the second is often called “hostile environment harassment.”
Quid pro quo harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when the conduct is either explicitly or implicitly made a condition of a person’s employment, or used to make employment decisions. Generally speaking, quid pro quo harassment occurs when employment decisions are made based on a person’s willingness to submit to harassment. Offensive comments about a person’s sex or gender could also be sexual harassment if they resulted in an adverse employment decision, such as being fired or demoted.
A hostile work environment is the second type of sexual harassment claim. A hostile work environment is created when sexual harassment makes a person’s workplace intimidating, hostile, offensive, and generally makes it difficult for the person to perform at work. Generally, a claimant is required to provide proof of a pattern of offensive behavior. However, a particularly egregious single instance of offensive behavior may be enough to qualify as a hostile work environment.
It is difficult to state definitively what actions rise to the level of creating a hostile work environment because each case is unique and depends on the particular circumstances of that case. Factors that courts consider are the frequency of the behavior, the reaction to the behavior, the intensity of the behavior, and how a “reasonable person” would interpret the behavior. Usually, it is not difficult to tell the difference between harmless joking, and when a person is being targeted because of their sex. For example, a case where a woman was locked in a port-a-potty on more than one occasion, shown nude pictures, and ridiculed for being a woman in a male-dominated industry is a clear example of sexual harassment and not harmless teasing.
There are a number of approaches that employers can use to protect their employees and their company. First, the employer must be pro-active about addressing potential sexual harassment in the workplace. The employer should have a clear and easily understood sexual harassment policy. The policy should define sexual harassment, outline disciplinary possibilities for wrongdoers, and clearly state a procedure for reporting sexual harassment claims. Your employees should each understand that you take sexual harassment seriously, and that you will fully investigate each complaint.
However, simply writing a policy, and handing it out on the first day of orientation is not enough. The message must be delivered loud and clear that harassment will not be tolerated. Each company is different, and you know the best way to get the message across to your employees, but options include frequent training sessions for all employees, and a special training session for managers. While it may seem like a waste of valuable time to have frequent training sessions on sexual harassment, in the long run such training can result in a more cooperative, and therefore more productive, work environment.
Of course it is not possible to control everything that every employee says and does. But, if you establish clear policies for handling sexual harassment complaints and make a good-faith effort to fully investigate all complaints, then your company is far more likely to avoid serious damage.
In summary, sexual harassment is a form of discrimination under Title VII of the Civil Rights Act. There are two types of sexual harassment claims: a quid pro quo harassment claim, or a hostile work environment claim. Both types of claims must be taken seriously, and dealt with swiftly and responsibly. The best way to protect both your employees and your company from sexual harassment is to make it clear to everyone that sexual harassment is an unacceptable, fireable offense. One part of sending that message is to write a clear policy that lists concrete steps for reporting complaints, hold frequent training sessions, and make a good-faith effort to swiftly and fully investigate complaints. These steps will go a long way towards creating an open and cooperative workplace environment, which ultimately leads to a more productive environment.
Thanks to future Smith Currie lawyer Mary Caroline Dyke for her help with this article.