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Sexual Harassment
An employer is not liable for all harassment of its employees in the workplace. As with discrimination in general, only harassment on the basis of some protected characteristic, such as race, sex, age, religion, national origin, or disability, is illegal under the law. Of these, sexual harassment is probably the best-known (and most often claimed) category.
Sexual harassment is any form of harassment that is targeted at an employee because of his or her sex. It need not be sexual in nature; constant criticism of an employee, taunting, practical joking or other offensive, unwelcome conduct may also constitute sexual harassment if directed at an employee because of his or her sex. In addition, harassment need not be by or against someone of the opposite sex in order to be illegal. "Same sex" harassment, as long as it is directed at someone because of his or her sex, is also illegal. However, harassment that is solely based on the victim's sexual orientation or gender identity is not prohibited by federal law, although various states have passed laws that prohibit this kind of treatment.
Hostile work environment sexual harassment is pervasive, unwelcome conduct, such as unwanted advances, whether physical or verbal, offensive joking or sexually explicit pictures, which unreasonably interferes with an employee's work or otherwise renders the work environment "hostile and abusive."
Quid pro quo harassment occurs where an employee is required to submit to unwelcome, offensive conduct as a condition of his or her employment or in order to receive some job benefit. A supervisor who demands that an employee have an affair with him in order to be promoted commits quid pro quo harassment.
An employer is not automatically liable for sexual harassment of an employee by a coworker, client, or customer. Instead, the employee must show that the employer knew or should have known of the harassment and failed to take "appropriate remedial action" to stop it. An employee therefore usually must complain about the harassment before he or she may recover for it. Where, however, the employer has received previous complaints, even from another employee, the harassed employee may be able to show that the employer had notice of the harassment.
In contrast, when the harassment is perpetrated by a supervisor, knowledge of the harassment is imputed to the employer. In order to avoid liability, the burden is on the employer to show that it took action to prevent sexual harassment in the workplace or to correct previous sexual harassment. For example, an employer may be able to show that it acted to prevent sexual harassment if it conducted sexual harassment prevention training or had distributed a clear policy to all employees, and provided reasonable avenues for employees to report harassing behavior. If an employer had no sexual harassment policy, or the policy required the employee to report harassment directly to his or her harasser, it is likely that the employer will not be able to show that it acted to prevent the harassment. The employer will have a stronger case if it can show that it promptly investigated the employee's claim of harassment, and, where appropriate, disciplined any guilty parties. An employer also must show that the employee was unreasonable in failing to use the complaint procedure provided by the employer. If the supervisor has taken some tangible adverse action against the harassed employee, such as firing or demoting the employee, however, the employer may be automatically liable for the harassment.
Consult with your employment attorney to develop a sexual harassment policy for your company, and to discuss how you will investigate and deal with future claims of sexual harassment.
How Employment Law Attorneys Can Help Employers
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How Employment Law Attorneys Can Help Employers
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