Sexual harassment lawsuits are one of the fastest growing areas of the law. Businesses should know what the law of sex harassment protects against, how to avoid harassment, and what to do if an employee complains that he or she is being sexually harassed.
What Is Sexual Harassment?
Sexual harassment is defined by the federal Equal Employment Opportunity Commission (EEOC) as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when that conduct explicitly or implicitly affects a person's job, interferes with the job or creates an intimidating, hostile or offensive work environment."
The Supreme Court has simplified matters somewhat by basically dividing sexual harassment into two types. One kind of harassment is when someone requests or makes a worker give a sexual favor in exchange for keeping a job, or in exchange for a raise, promotion or other work benefit. This is called “quid pro quo” harassment. Another kind of harassment is when there is severe sex-oriented misconduct in the workplace that interferes with a person’s job. This is called “hostile work environment” harassment.
Examples of conduct in these categories can include having to listen to sexually explicit jokes or comments, being touched without permission, a forced sexual act, being blocked or trapped by an employee, or being stared, whistled or jeered at. This conduct can be considered sexual harassment and be illegal whether it occurs during work hours, after hours or away from work.
Sexual harassment can occur in many circumstances, including:
• The victim as well as the harasser can be a man or woman. Harassment can occur between members of the same sex, and women can be liable for sexual harassment towards men. About 15% of all sexual harassment claims are made by men.
• The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker or even a non-employee of the business (like a vendor or customer).
• The victim does not have to be the target of the harassment but can be anyone affected by the offensive conduct.
• The sexual harassment victim does not have to be fired, demoted or suffer any economic injury to have a valid claim.
Important Rulings
There have been several important cases which help define when sexual harassment occurs and to what extent employers are liable for it. Here are examples:
• One case involved an Illinois woman whose boss made sexually explicit comments to her and repeatedly asked her for sex. The woman rejected her boss’s advances and sued the company for sexual harassment. The employer argued that since the woman did not suffer any job detriment (like a pay cut, demotion, transfer to another department or firing), it should not be liable. But the U.S. Supreme Court said employers can be liable for sexual harassment even if the worker suffers no specific job consequences.
• A Florida woman made a sexual harassment claim after she was subjected to vulgar comments and unwanted touching from her supervisor. The employer argued it should not be liable because it was unaware of the supervisor’s conduct, since the woman never complained about it. The U.S. Supreme Court ruled against the employer. The Court said employers are liable for sexual harassment by supervisors even if the employer did not know about the supervisor's conduct. However, the Court did give employers a way to escape liability for sexual harassment. If employers can show they had an effective sexual harassment policy and the employee did not take advantage of company procedures to fix the problem, the employer could defeat a sex harassment claim. In this case, the employer had no strong policy against sex harassment and did not tell employees about complaint procedures.
What Businesses Should Do
The best way for businesses to protect themselves against sexual harassment lawsuits is to take preventive measures -- make it clear to employees that sexual harassment will not be tolerated -- and to immediately remedy any complaints. Some key steps are:
• Have a written policy against sexual harassment. The policy should define sexual harassment, state that it's strictly forbidden, and that violators of the policy will be disciplined. The policy should ask employees to report any harassment. There should be different people employees can complain to, since the harasser could be the victim's supervisor.
• Require all employees (even the most senior) to review the policy. Keep a written record to confirm that all employees did so.
• Train all workers on what acts constitute harassment, how to recognize it, and what to do if it happens. It is a good idea to have regular training sessions reminding employees about the zero tolerance sexual harassment policy. In case of a claim, if the business can show it had an active program to prevent sexual harassment and to immediately remedy valid complaints, it has a much better chance of winning a sexual harassment claim or lawsuit.
• Take all complaints seriously. Any allegations of sexual harassment should be investigated promptly and fully. Some companies have legal counsel handle the investigation of sex harassment claims to help make sure the inquiry is impartial and thorough.
• Don't retaliate against workers who complain of sexual harassment. It is unlawful to retaliate against workers who complain about illegal conduct. Demotions, pay cuts and job reassignments (even at the same salary) are all forms of retaliation that can land an employer in legal trouble.
• Keep written records of sexual harassment investigations as well as any discipline that was imposed on the person accused of the harassment.
• Obtain liability insurance that covers harassment claims.
Each year, the EEOC receives over 10,000 claims of sexual harassment, and each year, businesses are held liable for large damage awards to sexual harassment victims. Companies that know their legal rights and responsibilities in the area of sexual harassment are much more likely to be protected against unlawful harassment.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.