Addressing Sexual Harassment in the Work Place
Photo by Amy Hirschi on Unsplash
In the day and age of #metoo, businesses have become much more sensitive to matters involving workplace harassment. While awareness is important, understanding an employer’s legal responsibilities is the first step in crafting a workplace policy to eliminate workplace sexual harassment.
Title VII of the Civil Rights Act of 1964 was interpreted to include discrimination based on “sex” as sexual harassment in the workplace. The law recognizing sexual harassment as a form of sex discrimination applies to private employers with 15 or more employees, as well as government and labor organizations. In the District of Columbia, employers cannot harass employees and applicants based on actual or perceived sex. Sexual harassment is a form of sex discrimination. Sexual harassment can occur in a variety of ways: the victim, as well as the harasser, may be a woman or a man; the victim does not have to be of the opposite sex from the harasser; the harasser may be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a nonemployee, such as a vendor or customer. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct. Unlawful sexual harassment may occur without economic injury to or discharge of the victim. The harasser’s conduct must be unwelcome.
Title VII prohibits sexual harassment in the workplace. There are two types of sexual harassment: 1) quid pro quo and 2) hostile work environment. Quid pro quo harassment occurs when a supervisor or other person with apparent authority to confer or withhold an employment benefit demands sexual favors from an employee in return for continued employment or some employment benefit. For example, quid pro quo harassment occurs when an individual is forced to submit to unwelcome sexual demands in order to avoid negative work conditions. Hostile work environment harassment occurs when an employee is subject to unwelcome sexually offensive conduct that is sufficiently severe or pervasive to alter employment conditions and creates an abusive or hostile work environment. In determining whether a workplace environment is hostile or abusive, all the circumstances are considered, including: the frequency of the discriminatory conduct; the severity of the conduct; whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.
It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.
When investigating allegations of sexual harassment, the Equal Employment Opportunity Commission (EEOC) looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.
Prevention is the best tool to eliminate sexual harassment in the workplace. We encourage employers to take steps necessary to prevent sexual harassment from occurring. Employers should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.
If your business needs to craft a workplace sexual harassment policy, to develop a process and procedures for complaints or grievances, or to train supervisory staff to investigate sexual harassment complaints or grievances, contact JLGI for a free consultation.