The answers and comments provided are merely guidelines and they cannot account for every contingency. I’ve tried to be succinct with this information, while at the same time getting to the “heart of the matter” with each issue. Any employer who is faced with a sexual harassment problem or complaint should contact our office for a consultation.
- In General: Sexual harassment is prohibited by federal law and by Arizona state law. Sexual harassment is considered a form of sex discrimination. Thankfully employers have become better educated regarding prevention of sexual harassment, and methods for insulating themselves from liability, and courts and juries have tired of the rampant numbers of frivolous sexual harassment cases filed by disgruntled employees. Thus, over the years, the situations in which liability will be imposed upon an employer for sexual harassment have narrowed and become more well-defined.
- What is the definition of sexual harassment?
The definition of sexual harassment comes from guidelines promulgated by the Equal Employment Opportunity Commission (EEOC). These guidelines, adopted in 1980, provide that unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature can constitute harassment in three situations:
- When submission to such conduct is explicitly or implicitly a term or condition of employment;
- When submission to a rejection of such conduct is used as the basis for employment decisions;
- when such conduct has the purpose or effect of unreasonably interfering with work performance or creating an intimidating, hostile or offensive work environment.
The first two types of sexual harassment are commonly referred to as quid pro quo harassment. This form of sexual harassment is typically easy to identify. In a quid pro quo situation an employee’s job is in some manner conditioned upon submitting to some sort of sexual demand or conduct. The third form of sexual harassment is often more difficult to identify. However, in order to create a “hostile or offensive work environment,” courts have found that the offensive conduct must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. And although the law doesn’t 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).
In all types of sexual harassment, the harassment must be “unwelcome.” Unwelcomeness is clear if the victim specifically states that the conduct is unwelcome, e.g., by stating “Quit harassing me.” Nevertheless, just because a woman has laughed at some dirty jokes does not mean she cannot claim harassment. While this may be some evidence that the conduct was welcome, it will not excuse extreme or persistent conduct once a woman has tried to put a stop to it.
- If a male employee makes some obscene remarks to a female employee, is that sexual harassment?
This depends upon the circumstances. If the female employee “welcomes” the obscene remarks of the male employee, sexual harassment has not occurred. However, you’d be surprised how many persons seemed to be fine with the comments and jokes while working, only to later (conveniently) claim the opposite when they no longer work for the employer. Further, the harassment must be severe or pervasive. For example, one appellate court found in 1995 that a series of incidents spread over a seven month period did not create a “hostile work environment” when the conduct involved was merely distasteful and adolescent. In general, stray obscene remarks are not going to be sufficient to create a hostile environment, because courts will not find that this is “pervasive” enough to taint the entire workplace for the victim. On the other hand, it is possible that only one incident, if sufficiently severe, can constitute sexual harassment. Regrettably, there is no bright-line test.
- Can a woman sexually harass a man?
Sexual harassment laws apply equally to men and women. While men often have an “uphill battle” proving that the harassment was “unwelcome,” complaints of sexual harassment filed by men do occur.
- Can a man sexually harass another man?
The U.S. Supreme Court has recognized that male-on-male sexual harassment is unlawful. The Court was careful to point out that the harassment has to be “because of sex” rather than for some other reason. Further, conduct which is sexually harassing to a woman may not necessarily be sexually harassing to a man, e.g., it would generally not be sexual harassment for a coach to pat a male athlete on the rear end.
- What can an employer do to protect itself?
All employers should have a clear and unequivocal anti-sexual harassment policy. The policy should provide that employees are encouraged to make complaints if they feel they have been sexually harassed, and should identify to whom the employees should complain. Alternative routes for complaining should be identified, in case the person assigned to accept the complaints is the harasser. All employees should be required to read and sign the policy, and should receive training on what conduct is unacceptable and how to make a complaint.
Courts have found that an employer has a defense to any claim of sexual harassment if it provides a reporting procedure, which the employee was aware of, and which the employee failed to use. However, the reporting procedure typically applies in the hostile working environment situation. If the harassment is of a quid pro quo variety then an employer has more exposure to liability, even if there is a complaint procedure. According to the U.S. Supreme Court, if the sexual harassment results in a “tangible job detriment,” then the employer may have no defense based upon a complaint procedure.
It appears that having a well-drafted sexual harassment prevention policy is not enough to escape liability in every sexual harassment cases. Rather, employers must make sure that the individuals who are designated as receiving such complaints are viewed as receptive to complaints and responsible enough to follow up. Employers should take the time periodically to re-publicize the policy and ensure that front-line supervisors and human resources administrators know how to handle such complaints. Additional training may be needed in some instances as well.
- What should an employer do to investigate complaints of sexual harassment?
Employers must investigate promptly when information surfaces which raises the possibility of sexual harassment in the workplace, and the employer must take swift corrective action immediately after any complaint is made. Typically the employer will discuss the matter with the complaining party, and with the alleged harasser, and interview any witnesses to the harassment. The employer should document all steps taken, and all interviews conducted. In addition to simply meeting their legal duty, most employers now have other goals as well when conducting an investigation, including to gather sufficient facts upon which to base employment decisions, to minimize the possibility of litigation from either the accuser or the accused, and to minimize disruption to the workplace. An employee who comes forward with a complaint of harassment has multiple objectives such as wanting to be taken seriously, to obtain a prompt resolution of the dispute without suffering retaliation, and often to avoid being pushed into litigation by a spouse, family member, or co-workers. From my perspective as an attorney, it has been my experience that the parties can still feel heard and satisfied by the investigative process, even if their individual legal positions are not specifically vindicated. There is no road map to a perfect investigation, but an investigation serving as the basis for an employment decision which can withstand scrutiny at trial should be undertaken with an open mind and a commitment to neutrality and fairness.
- Can an employer be liable if a male employee is falsely accused of sexual harassment?
In general, an employer has less exposure to liability if it takes an action against an alleged harasser, than if it does nothing, even if the employer believes that the accusations are false. If an employer does nothing in the face of a complaint, then the employer has undercut its defense to a claim of sexual harassment. In general, an employer cannot be liable for disciplining or terminating an alleged harasser, even if the employer does not know whether or not the allegations are true. The alleged harasser might sue the employer for defamation, but defamation requires that the alleged harasser prove that the allegations are false, that the employer knew they were false (or acted with reckless disregard as to their truth), and that the employer publicized the allegations outside of the context of those with a need to know about it. Therefore, if the employer takes pains to ensure that the investigation and all matters related to it are kept confidential and discussed only among management with a need to know about the situation, then the employer has little exposure to liability for actions taken against the alleged harasser.
- Can employees be individually liable for sexual harassment?
The state and federal sexual harassment laws are designed to impose liability on employers, not individual employees. However, employees could be sued individually on other grounds. For example, if the sexual harassment involved improper touching, an employee could be sued for assault and battery. If the conduct was severe and outrageous enough, the employee could be sued individually under state law for “intentional infliction of emotional distress.”
- Your Employee Went to the EEOC – How Does this Process work?
In Arizona, the time limit for filing a Charge of sexual harassment with the Equal Employment Opportunity Commission (EEOC) is 300 days. An employee who fails to file with one of these administrative agencies forever waives his or her right to pursue a lawsuit in court.
The EEOC first attempts to get the parties to agree to mediation. Mediation is totally voluntary, and will not go forward unless both parties agree. If the employer feels that it has no exposure whatsoever to liability in court, then the employer should refuse to mediate. However, if the employer thinks that there is some exposure or that the issues are somewhat “gray,” then mediation can be a good idea, since cases can be settled early on before significant attorney fees are incurred.
The EEOC is authorized to interview witnesses, obtain documents, and pursue a complete investigation. If an employer fails to cooperate, the EEOC can obtain subpoenas have them enforced. Therefore, it is always in the employer’s best interests to cooperate fully with the EEOC and to provide complete information from the outset. Obtaining legal counsel for the purposes of responding to a Charge of Sexual Harassment is highly advised.
- What damages can be recovered for sexual harassment?
Damages under federal law can be significant. While under Title VII, employees who are victims of sexual harassment can also collect back pay and out-of-pocket damages, they may also collect damages for the emotional distress, as well as punitive damages. Under the federal statute, damages for emotional distress and punitive damages, combined, are subject to certain caps based upon the size of the employer, which range from $50,000 to $300,000. Additionally, federal law allows recovery of attorney fees and costs if a sexual harassment victim prevails. It is not unusual for attorney fees in federal court to exceed the amount of damages actually awarded by the jury to the sexual harassment victim. Often cases are settled because the employer has to spend significant amounts on its own attorneys, plus face the possibility of paying attorney fees to a prevailing plaintiff as well. Again, obtaining legal counsel for the purpose of evaluating and handling these types of matters is highly advised
Employers simply cannot afford to ignore sexual harassment complaints, or take them lightly. However, employers who are well-prepared and well educated, and who have explicit anti-sexual harassment policies that have been disseminated to each and every employee, can help protect their businesses.
Thank you again for taking the time to read this information. If we can be of assistance with these types of matters, please contact our office for a consultation.