Preventing Sexual Harassment in the Workplace
A recent report maintains that fifty percent of women and fifteen percent of men believe that they have been sexually harassed in the workplace. Some surveys in the popular media put the estimates even higher.
The publicity sexual harassment has received has resulted in new directives to employers from the Equal Employment Opportunity Commission and an explosion in sexual harassment claims against employers.
If effective anticipatory action is taken, however, sexual harassment claims are largely avoidable.
What is Sexual Harassment?
Sexual harassment is a form of unlawful sex discrimination under both federal and many state laws. It may take one of two forms:
- Quid Pro Quo
- Harassment occurs when a supervisor conditions the granting of an economic benefit upon receipt of sexual favors from a subordinate or punishes the subordinate for refusing to submit to his or her request(s). Generally, an employer is strictly liable for acts of "quid pro quo" harassment committed by a supervisor who has the power to make (or recommend) significant employment decisions affecting the subordinate-victim, such as hiring, promotion, discipline, or discharge. This liability would exist even if the supervisor's conduct violates a clearly-articulated and well-enforced company policy prohibiting sexual harassment and is done without the employer's actual or constructive knowledge. The rationale for holding employers strictly liable in quid pro quo cases is that the supervisor is considered to be the employer because the harassment is accomplished by the authority which the employer specifically delegated to him or her.
- Hostile Work Environment
- This exists where supervisors and/or co-employees create an atmosphere so infused with unwelcome sexually-oriented conduct than an individual's reasonable comfort or ability to perform is affected. To bring this claim, the employee need not suffer an economic detriment. The standard used by civil rights agencies and courts in determining whether a hostile work environment exists is whether a reasonable person, in same or similar circumstances, would find the conduct offensive. Although it is difficult to define with precision how severe conduct must be before it may be considered offensive for sexual harassment purposes, especially since sexuality is often an acceptable aspect of social exchange, the recent advice memorandum of the EEOC and individual court decisions provide some general guidance.
Most workplaces will not be free from conduct which is not objectionable to someone. The world is not pristine and most courts and commissions recognize this reality. Accordingly, in most cases, a single incident or isolated event will not support a hostile work environment claim. Rather, a finding of a hostile work environment usually requires multiple offensive acts or a pattern of offensive conduct.
However, even where conduct is offensive and pervasive, it is not actionable unless it is unwelcome. To determine whether the condict is unwelcome, courts and agencies look to the victim's actions and/or reactions. Obviously, if an employee states that certain conduct is offensive, then it is unwelcome. The opposite, however, is not always true. Silence does not equal consent. Fear of retaliation may preclude protest. In some cases, even if active participation in the offensive conduct has been held not to bar a hostile work environment claim. (One case, which reached the Supreme Court, involved unprotested sexual intercourse on more than forty occassions.) Moreover, conduct which may not have been unwelcome in the past (and hence not actionable) can be converted to unwelcome by the employee at any time.
Unlike quid pro quo claims, employers are not strictly liable in hostile work environment claims. Generally, employers can be held liable in a hostile work environment claim only if the employer has actual or constructive knowledge that a hostile work environment exists and fails to take corrective measures, or, in the absence of actual or constructive knowledge, if the employer, by its conduct, leads its employees to believe that it has sanctioned or endorsed the sexually-offensive behavior.
Source: Congressional Information Service/Westlaw/allfeds/legislative/law via Radical Politics on The NY Transfer BBS 718-448-2358