From Hollywood to the Halls of Congress to Your Workplace Sexual Harassment – Employers Be Aware

By Keith E. Kendall, Esq.

Based on the recent and numerous incidents and allegations of sexual harassment in the news these days, it seems that no part of society – from Hollywood to Congress to the business world - is immune from the scourge of sexual harassment. This uptick brings to mind the specter of sexual harassment in the workplace. While not entirely avoidable, employers can protect themselves from this threat by taking steps to minimize the risk of being held legally responsible for acts of sexual harassment in the workplace.

The right to be free from discrimination in the workplace is a “civil right,” on par with other constitutional rights – rights to privacy; property rights; freedom of association rights; religious freedom, etc. Title VII of the Civil Rights act of 1964, as amended, prohibits discrimination against employees and applicants for employment on the basis of race, color, religion, sex (including pregnancy, childbirth, abortion, and related conditions), and national origin. Sexual harassment – though not specifically identified in Title VII – is a form of sex discrimination, based upon the legal theory that the harassment is engaged in “because of” a person’s gender. Females and males are protected by statutes prohibiting discrimination in the workplace “because of” their gender.

There are generally two forms of legally recognized “sexual harassment” – (1) “quid pro quo harassment”; and (2) “hostile work environment” sexual harassment. “Quid pro quo” harassment occurs when an implicit or explicit “threat” or “promise” to grant or deny a job benefit, in exchange for sexual favors, is made a condition of the benefit to the victim, by a supervisory employee with authority over the complaining employee. “Hostile work environment” harassment occurs when sexual harassment is (1) intentional because of the victim’s sex; (2) pervasive and regular; (3) detrimentally affects the victim; (4) would detrimentally affect any other reasonable person in the same situation; and (5) is engaged in by another employee under the employer’s control (referred to as a “respondeat superior” relationship).

The Courts have made it clear that employers, rather than the employee(s) engaged in the harassment, will be held responsible for sexual harassment by supervisory employees, in the workplace. The theory is that the employer is responsible for preventing sexual harassment in the workplace. If the person who engaged in the sexual harassment and/or created the hostile work environment is a victim’s supervisor or in the victim’s line of supervisory authority, then the employer is automatically liable for the conduct, if the harassment results in some tangible employment action against the employee. In other words, employers are strictly liable for tangible employment actions made by supervisors toward victims of sexual harassment, including such seemingly benign actions as transferring the victim out of the harassing work environment.

When an employee has not suffered a tangible employment action, strict liability does not attach. In this situation, an employer can successfully fend off a claim of sexual harassment not resulting in such employment action by the “affirmative defense” that the employer exercised reasonable care to prevent and correct any sexually harassing behavior; and that the victim failed to take advantage of any preventive or corrective opportunities provided by the employer, or to avoid harm otherwise.

It seems – from today’s headlines – that sexual harassment is more pervasive than previously believed, but an employer’s liability or responsibility for the harm that could occur from such harassment can be minimized by taking several preventive and corrective measures: (1) create a “zero tolerance” policy regarding not only sexual harassment in the workplace, but acts of reprisal for making the allegation; (2) train all employees about the “dos” (do report it) and “don’ts” (just don’t do it) of sexual harassment; (3) encourage victims of sexual harassment to report acts of harassment – sexually-motivated or otherwise – without fear of reprisal; and (4) thoroughly investigate and promptly remedy all allegations of harassment in the workplace, in a manner that does not even resemble any tangible employment action or reprisal against a victim, or even reporter, of sexual harassment.

By implementing these preventive and corrective measures, an employer has a much better chance of minimizing the negative impact of, and/or successfully defending against claims of both “quid pro quo,” and “hostile work environment” sexual harassment.

For more information on how employers can protect themselves from sexual harassment claims and create a safe environment for all employees, please do not hesitate to give me a call.