Sexual harassment at work is one of the most serious and difficult charges an employer can face.
General Information About Sexual Harassment at Work
I get a lot of questions about sexual harassment at work. Here is a list of questions and answers I hope will help you understand the challenges to employers who face a charge of sexual harassment at work. These are guidelines and will not apply in every situation.
Because this is a very serious charge, any employer who is faced with a sexual harassment problem or complaint should consult with an attorney. You can call our office for a consultation.
In general, sexual harassment at work is illegal under federal and Arizona laws and considered a form of sex discrimination. Most employers today are much more aware about how to prevent this through training, coaching, and other methods to emphasize to employees that sexual harassment at work is unacceptable.
These methods can also protect them from charges that they allowed harassment at work. At the same time, courts and juries have tired of the rampant numbers of frivolous sexual harassment cases filed by disgruntled employees. As a result, employers’ liability for sexual harassment has narrowed and are better defined.
Ten Questions About Sexual Harassment at Work and the Answers You Need
1. What is the definition of sexual harassment?
The Equal Employment Opportunity Commission (EEOC) is a federal government agency that enforces anti-discrimination laws that defines illegal harassment at work, including sexual harassment.
EEOC guidelines state sexual harassment includes:
- Unwelcome sexual advances
- Requests for sexual favors
- Other verbal or physical conduct of a sexual nature
These behaviors can be considered harassment in three situations:
- When putting up with or not objecting to such conduct is explicitly or implicitly a term or condition of employment
- When objecting to such conduct influences employment decisions including hiring and promotion
- When such conduct creates an intimidating, hostile, or offensive work environment meant to unreasonably interfere with the victim’s work performance
The first two types of are commonly referred to as quid pro quo harassment and pretty easy to identify. The employee’s job is depends upon him or her giving in to some sort of sexual demand or conduct.
The third form is often more difficult to identify. Courts usually define a “hostile or offensive work environment” when offensive conduct is so severe or widespread that it creates an abusive working environment for the victim. It includes firing or demoting a victim who objects to such behavior.
Keep in mind that the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.
In addition, the harassment must be unwelcome. This is made clear if the victim specifically states the conduct is unwelcomeby telling the harasser “Stop harassing me.” However, 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 does not excuse extreme or persistent conduct once a woman has tried to stop it.
2. Is it sexual harassment when a male employee makes obscene remarks to a female employee?
This depends upon the circumstances.
If the female employee “welcomes” the obscene remarks of the male employee, sexual harassment has not occurred. But you’d be surprised how many persons seem fine with such comments and jokes while working, only to later claim the opposite when they no longer work for the employer.
The rule is that sexual harassment at work must be severe or pervasive. In general, stray obscene remarks do not create a hostile environment because courts will not consider this “pervasive” enough to alter the entire workplace for the victim. One court ruled 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.”
On the other hand, it is possible that only one sufficiently severe incident can constitute sexual harassment. There is no bright-line test.
3. Can a woman sexually harass a man?
Yes. Sexual harassment laws apply equally to men and women.
Men often have an uphill battle proving that sexual harassment at work was unwelcome but more are filing complaints.
4. Can a man sexually harass another man?
Yes. 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. In addition, conduct considered sexually harassing to a woman may not necessarily apply to a man. A male coach who pats a male athlete on the rear end generally will not be found guilty of sexual harassment. A male who coaches a female team should be advised to refrain from this, though.
5. What can employers do to protect themselves from sexual harassment charges at work?
All employers should have a clear and unequivocal anti-sexual harassment policy that includes these points:
- Encourage employees to make complaints if they feel they have been sexually harassed and identify people employees should contact to make complaints.
- There should be more than one contact in the event one of the contacts is the harasser.
- All employees should be required receive training on what conduct is unacceptable and how to make a complaint.
- All employees should agree to and sign workplace behavior guidelines.
Courts will not find employers who provide a reporting procedure guilty of permitting a hostile workplace if the complaining employee was aware of the procedure and didn’t use it. If the harassment was a quid pro quo kind, the employer has a tougher defense, even if there is a complaint procedure. The U.S. Supreme Court has ruled that if sexual harassment results in a “tangible job detriment,” the employer may have no defense based against a complaint.
A well-drafted sexual harassment prevention policy is not enough to escape liability in every sexual harassment cases.
- Employers must make sure that individuals designated to receive sexual harassment complaints are viewed as receptive and responsible enough to follow up.
- They should take the time to periodically 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.
6. What should an employer do to investigate complaints of sexual harassment?
Employers must promptly investigate information that raises the possibility of sexual harassment in the workplace and quickly take corrective action.
Typically, the employer will speak with the person or people who filed the complaint and the alleged harasser, and interview witnesses (if any) to the harassment. The employer should document all steps taken, and all interviews conducted.
Most employers will go beyond meeting legal requirements regarding sexual harassment at work. They make sure to gather substantial facts to back up employment decisions like promotions. This minimizes workplace disruptions and the possibility of litigation.
Most of all, they take complaints seriously. Employees who come forward with a complaint of harassment may have multiple objectives including wanting to be taken seriously. They want a prompt resolution of the dispute without any retaliation. Many do not want litigation at all; some may be pushed toward this by a spouse, family member, or co-workers. There is no road map to a perfect investigation.
My observation and experience have been that both parties are satisfied by a fair and neutral investigation, even if their individual positions are not specifically vindicated.
7. Can an employer be liable if a male employee is falsely accused of sexual harassment?
In general, an employer’s liability against a sexual harassment charge is low if it takes action against an alleged harasser–even if the employer believes that the accusations are false. Doing nothing lowers the chance a sexual harassment claim will be filed and if it is, there is a clear defense that the complaint was addressed.
In addition, an employer usually is not held liable for disciplining or even terminating an alleged harasser, even if the employer does not know if the allegations are true. The alleged harasser might sue the employer for wrongful termination or defamation, but this is difficult to prove. The dismissed employee has to prove:
- That the allegations are false.
- That the employer knew they were false, or acted with reckless disregard to the truth.
- That the employer publicized the allegations beyond those who needed to know about it.
An employer who is careful to keep the details and facts about a harassment investigation confidential will be able to defend against a wrongful termination suit.
8. Can employees be individually liable for sexual harassment?
State and federal sexual harassment laws put liability on employers, not individual employees. However, individual employees can be sued on other grounds:
- If the sexual harassment involved improper touching, a victim can sue for assault and battery.
- If the conduct was severe and outrageous enough, the victim can sue under Arizona law for “intentional infliction of emotional distress.”
9. My employee contacted the EEOC. What happens next?
In Arizona, victims have 300 days from the date harassment occurred to file a sexual harassment charge with the EEOC. A claim to the Civil Rights Division of the state Attorney General office must be filed within 180 days. Complaint to both offices may not be more than 180 days apart.
An employee who fails to file with one of the agencies forever waives his or her right to pursue a lawsuit in court.
The EEOC will first ask the parties to agree to mediation. Mediation is voluntary and will not go forward unless both parties agree to it.
- If the employer feels is confident that the charges won’t hold up, he or she should refuse to mediate
- If the employer thinks there is some exposure or that the issues are somewhat “gray,” then mediation can be a good idea.
- Cases can be settled early to avoid significant attorney fees.
The EEOC will interview witnesses, obtain documents, and conduct a complete investigation. It can get subpoenas to compel employees to cooperate–therefore, it is always in the employer’s best interests to fully cooperate and provide complete information.
10. What damages can be recovered for sexual harassment?
Damages under federal law can be significant. Employees who are victims of sexual harassment can collect back pay and out-of-pocket damages, as well as damages for the emotional distress and punitive damages. These damages range from $50,000 to $300,000 plus recovery of attorney fees and costs.
Cases are often settled before going to court because the employer has to spend significant amounts on attorney fees.
Concluding Thoughts About Preventing Sexual Harassment in the Workplace
Employers cannot afford to ignore sexual harassment complaints or take them lightly. The best way to protect your business is to be clear about what behaviors are not acceptable. Educate employees about what constitutes sexual harassment and distribute explicit anti-sexual harassment policies to each and every person.
Thank you again for taking the time to read this information. We can provide closer guidance on specific cases through a consultation. Contact our office today to schedule one.