Authors: Angela Cummings, Emanuela Nespoli, Alexander Ulrich, Hannah Price, Jorge De Presno, Alvaro Gonzalez-Schiaffino, José Carlos Wahle (Ford Harrison; Toffoletto De Luca Tamajo e Soci; Klimt & Vollstadt; Lewis Silkin; Basham, Ringe y Correa S.C.; Veirano Advogados)
A recent headline could put fear in the hearts of general counsel and HR professionals alike. A restaurant franchisee in Ohio shells out $ 1.4 million to settle a sexual harassment case brought by the U.S. Equal Employment Opportunity Commission on behalf of multiple women. In that case, EEOC v. E. Columbus Host, LLC, the EEOC claimed a restaurant manager engaged in egregious sexual harassment of 12 female employees. His behavior was said to include pressuring workers as young as 17 for sexual favors, unwelcome touching of female workers, making humiliating remarks about women, and retaliating against female employees who complained.
The EEOC, after reaching the substantial settlement, not surprinsingly took to the media to underscore its victory and warn other employers that they may be next. "Rooting our harassment in the workplace has long been a priority for the Commission," said EEOC General Counsel David Lopez. "We hope that this settlement can serve as a road map to other employers seeking to prevent and eradicate sexual harassment in their workplace."
With that warning in mind, we now take a broader look at workplace sexual harassment, first in the United States and then in some other major venues worldwide.
In the United States, although some states have their own statutes barring sexual harassment at work, the most common legal basis for asserting these claims is Title VII of the Civil Rights Act of 1964. The same Title VII also forbids employers from firing or otherwise retaliating against an employee because he or she complains about discriminatory conduct.
A common scenario faced by employers is as follows: An employee files a charge of discrimination with the EEOC, claiming sexual harassment and/or retaliation for reporting the harassment. The EEOC then conducts an investigation, which may include witness interviews and a review of documents. Finally, the EEOC makes a determination. It's either a "reasonable cause" finding, if the EEOC has reasonable cause to believe that harassment occurred, or a "no reasonable cause" finding. If it's the former, the agency will "invite" the employer to conciliate and attempt to settle, with the EEOC and the employee. If the matter is not settled, either the EEOC or the employee may then bring suit in federal court.
Notably, even if the EEOC makes a no-reasonable-cause determination, the employee receives a right-to-sue notice and may nonetheless file a lawsuit against the employer. For employers that means that even a win at the EEOC stage is only one victory in what can become a much longer war.
In FY 2015, the EEOC received 6,822 charges claiming sexual harassment. Of those charges, more than half were investigated and resulted in a determination of "no reasonable cause". But, again, that finding often does not let the employer off the hook. Employees and the attorneys who represent them like to bring sexual harassment lawsuits due to their often salacious allegations and the belief that companies will pay to settle in order to keep from having their dirty laundry aired publically in a federal lawsuit.
With all this in mind, employers should take the following actions to prevent and remedy sexual harassment in the workplace:
- Develop and issue a policy prohibiting harassment, including sexual harassment.
- Keep tabs on the company's culture and environment to ensure that the workplace is professional and free of problematic conduct and language.
- Conduct training on sexual harassment for both managers and employees.
- Select the appropriate contact person, or persons, for employees who want to report harassment. The contact should be someone whom employees can trust to take the concern seriously.
- Have trained persons conduct prompt and thorough investigations of any alleged harassment.
- If the conduct is substantiated, take proper remedial action against the alleged harasser.
- Remind all involved (i.e., the employee who reported the concerns, the alleged harasser, and any supervisor involved) that retaliation is expressly prohibited.
Taking these steps is important not only for U.S. companies. Laws in many countries similarly prohibit sexual harassment in the workplace. Statistics indeed indicate that employees overseas do suffer from sexual harassment in the workplace. According to the United Nations, for example, between 40 and 50 percent of women in European Union countries "experience unwanted sexual advances, physical contact or other forms of sexual harassment at work." (See the United Nations: Fast Facts: Statistics on Violence Against Women and Girls.)
What follows is a brief look at the laws prohibiting sexual harassment in a number of European countries.
In Italy, Article 26 of the "Code of Equal Opportunities" defines sexual harassment as "unwanted conduct of a sexual nature expressed in any way which violates, or is intented to violate the dignity of an employee or which creates an intimidating, hostile, degrading, humiliating or offensive working environment."
This law also provides that any agreements or decisions concerning the employment contract of an employee who is a victim of sexual harassment are null and void if they are adopted as a consequence of the employee's refusal of, or subjection to, the sexual harassment.
Emanuela Nespoli, a partner at the law firm of Toffoletto De Luca Tamajo e Soci, advises that in Italy, much like in the United States, employers have a duty to prevent and punish sexual harassment occurring in the workplace. Employers must adopt all necessary measures to guarantee a safe working environment for all employees, and an employer should take swift remedial action against an employee who is found to have committed sexual harassment, including dismissal of that employee.
In Germany, the definition of sexual harassment is similar to Italy's. The German General Equal Treatment Act defines sexual harassment as any unwanted, sexually motivated conduct (including unwanted sexual acts and demands to perform such acts, sexually motivated physical contacts, sexual remarks, as well as unwanted display and visible posting of pornographic images) which occurs with the purpose of violating the dignity of the affected person, in particular by creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
According to this Act, and similar to law in the United States, the employer is obligated to take measures to protect employees against sexual harassment. Alexander Ulrich, a partner at the law firm of Kliemt & Vollstadt, Germany, notes that when harassment has been substantiated, employers should provide written warning documentation to the harasser - or, in the case of an employee who has already been found to have harassed in the past or where the harassment is severe - terminate the harasser.
Ulrich notes that the employer's reaction to harassing behavior will depend on the circumstances of the particular case, including its severity. In general, he says, the employer has a duty to investigate every complaint of sexual harassment and take appropriate actions to protect employees.
At the end of every harassment investigation in Germany, the employer must inform the employee about the results of the investigation.
In the United Kingdom, the Equality Act 2010 similarly prohibits sexual harassment, which is defined as conduct of a sexual nature that has the purpose or effect of violating the victim's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. Examples might include making unwelcome sexual advances, displaying pornographic images, or sending emails with material of a sexual nature.
Hannah Price, a partner at the law firm of Lewis Silkin, notes that UK employers are responsible for the actions of their employees in the course of their employment, even if such actions are taken without the employer's knowledge or approval. However, if the employer can demonstrate that it took all reasonable steps to prevent the employee's disciminatory action, it will have a successful defense. Accordingly, Price notes, employers in the United Kingdom are well-advised to have in place clear anti-harassment policies, to make all employees aware of these policies, and to provide training and deal effectively with any complaints of harassment, including by taking appropriate disciplinary action against the perpetrator.
In Latin America generally, sexual harassment laws also require that employers provide harassment-free workplaces. In Brazil, sexual harassment can be a crime for the employee who commits it, but only a civil matter for the employer.
José Carlos Wahle, a partner at the law firm of Veirano Advogados in Brazil, says that judges in Brazil take accusations of harassment very seriously, but they also take seriously false claims of harassment that damage the accused. According to Wahle, the alleged harasser may sue if he or she was terminated from the company even though the sexual harassment was unsubstantiated and if the company failed to keep the process confidential.
Mexico also prohibits sexual harassment in the workplace. Legislation enacted in 2012 levies fines ranging from $ 1,000 to $ 20,000 against employers who tolerate it. Jorge G. De Presno and Alvaro Gonzalez-Schiaffino, partners at the law firm of Basham, Ringe y Correa S.C. in Mexico, advise Mexican employers to assess their existing harassment prevention policies and procedures, as well as the forms used for internal investigations, to determine whether the employer is providing the appropriate tools for preventing harassment and handling grievances. They also suggest that companies provide training to employees charged with conducting internal harassment investigations to ensure they are handled appropriately.
Both in the United States and abroad, employers must protect their employees from sexual harassment or else face potentially costly litigation, and at times astronomical jury awards. In the United States, such an award was imposed recently, when a jury in Texas awarded a woman $ 7,65 million after finding that a restaurant manager had sexually assaulted her as a minor and that her employer had failed to protect her from thi harassment (S.V.Z v Solis).
In the face of such awards, both general counsel and HR professionals will sleep better at night if they ensure that their organizations take all necessary steps to prevent and control sexual harassment claims.