It has been quite a year in employment law!

The exposure and explosive aftermath of the Harvey Weinstein sexual harassment scandal opened the floodgates for sexual harassment claims, which rippled across industries and workplaces with employers reevaluating their policies and committing to end such treatment. However, we see that confusion remains about what actually constitutes unlawful harassment and whether sexual harassment, in particular, is really such a problem.

Starting with statistics, in 2016 alone, the U.S. Equal Employment Opportunity Commission (EEOC), the agency that enforces the federal anti-discrimination laws, reported receiving almost 27,000 charges of sexual harassment. It’s quite likely that those numbers rose in 2017.

Understanding what sexual and unlawful harassment is, and is not, is paramount. Once that’s clear, we will provide you with concrete steps that your company can and should take to prevent unlawful harassment in your workplace, and, if misconduct has already occurred, we’ll let you know about some corrective measures that you can take.

What Unlawful Harassment Is Not—“Bullying”

At first, many companies seek to ban all harassment; however, only unlawful harassment is illegal. That is, harassment based upon a person’s protected class such as gender, race, religion, age, etc. “Bullying” that is not based upon any of these protected classes is entirely lawful.

An example of unlawful harassment is not a supervisor who screams at subordinates. That’s bullying. It is not a manager or colleague who others think creates drama or tension in the team. It is not when employees leave out other employees or speak condescendingly to them. Workplace conduct that is simply unpleasant, nasty, and unprofessional, although undesirable, does not automatically mean it is a hostile work environment. Title VII does not mandate a code of conduct and behavior.

Rather, harassment is only unlawful if it is based on or because of an employee’s inclusion in a protected class such as sex, race, religion, age, disability, or other legally protected characteristic under federal (Title VII of the Civil Rights Act of 1964 (Title VII)), state, or local anti-discrimination laws.

What Exactly Is Unlawful Harassment and a Hostile Work Environment?

There are two types of “sexual harassment”—a “hostile work environment” and “quid pro quo” harassment. It is important to understand the kind of conduct, behavior, and comments that can lead to a hostile environment in your workplace. Sexually charged comments, banter, or “guy talk” made by executives, an employee, or supervisor to another employee may subject an employer to liability under Title VII if it rises to the level of sexual harassment by creating a hostile work environment.

To constitute a hostile work environment, first, the comments themselves must be based on a protected characteristic, such as gender—the harassment must be because of the harassee’s sex (or race, disability, age, etc). Second, the comments must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. Finally, the sexually charged comments or conduct must be severe or pervasive to the point that the employee herself or himself considers it to be offensive and abusive.

Regarding sexual harassment, offensive conduct may include, but is not limited to, offensive sex-based jokes, slurs, epithets or name calling (based on one’s gender, body parts, romantic life, etc.); physical assaults or threats of assaults; intimidation, ridicule or mockery, insults or put-downs; offensive objects or pictures, or interference with work performance.

Additionally, employers should understand that a “harasser” does not have to be an employee or manager—(s)he can be a customer or vendor—and the victim does not have to be the person harassed.

Sexual Favors In Exchange For…

The second type of unlawful harassment, quid pro quo harassment, occurs when a manager, supervisor, or executive (any person with the authority to hire or fire) offers or even hints to provide another employee with a promotion, raise, or even a job or other benefit if that employee will provide some kind of sexual favor. This also occurs when a manager or other authority figure threatens to terminate or take some other adverse action against an employee if the employee does not acquiesce to performing some kind of sexual favor.

A good example of this type of harassment would be the allegations surrounding Harvey Weinstein, where he allegedly asked an aspiring actress to spend five minutes with him alone in his hotel room because it pays to have a “close relationship” with him. But this type of harassment does not have to rise to such mythical, Hollywood proportions. Offers of better pay, promotions, and protection from discipline in exchange for sexual requests constitutes quid pro quo harassment. We have written about this type of harassment here.

Employers must work to prevent and correct both types of unlawful harassment.

We Will Tell You How.

Here are some “Best Practices” for Prevention and Correction

  • Have a clear, no-tolerance sexual harassment policy in your employee handbook that discusses specific misconduct, i.e., no sexual or sexist jokes, sexual puns, sexual innuendo, smacks on the butt, grabbing of any body parts, quid pro quo harassment (and what that means), or pictures of half-naked women at work. Your policy should be explicit. Use examples.
  • Ensure your anti-harassment and anti-discrimination policies are disseminated (and updated) throughout your company and understood by all of your employees. Yes, you should obtain a signed acknowledgment that employees received and reviewed these policies.
  • In that same employee handbook, provide a written procedure for reporting and thoroughly investigating claims of unlawful harassment and follow the procedure, extensively documenting the process along the way.
  • If you are investigating misconduct, continue to follow up with the individual who reported the harassment—whether you found that it occurred or not—to ensure they feel safe and that they are not being retaliated against; again, document all findings.
  • Take swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating the perpetrator. Once your company is aware that sexual harassment likely occurred, you are complicit if you fail to take investigate and/or take corrective action. Have clear standards for what type of conduct merits discipline and the types of discipline.
  • Utilize your Human Resources Department. They are your front-line defense for an unlawful harassment claim. (Don’t have an HR Department? That’s another story. Businesses small to large benefit from having well-trained, knowledgeable HR folks).
  • Provide regular, interactive, professional training to employees and managers tailored to your workplace so that they can recognize, respond to, and prevent unlawful harassment (based on sex, race, age, etc.) A “one size fits all” approach to training is generally ineffective. Further, training must be promoted by senior leaders to show commitment.
  • Encourage reporting of any unlawful harassment by men and women—a “say something if you see something” mentality; convey, via your policies and practices, that your company prohibits retaliation. Clarify for your employees that if an employee reports sexual harassment or discrimination, she will not suffer retaliation. This encourages reporting, which is beneficial for your company’s workplace morale, attrition levels, and reputation; and
  • Critically, maintain a “top-down” culture prohibiting unlawful harassment. When anti-discrimination and a refusal to tolerate unlawful harassment comes from the very top of your organization, it demonstrates commitment to employees from the C-Suite to the mailroom to maintain a culture of respect for all. It says, “we’re serious here.”