Sexual Harassment: What Employers Should Know

09 Jan Sexual Harassment: What Employers Should Know

Sexual harassment is still a pervasive problem, even if people don’t always talk about it. Honestly, a sexual harassment claim gives small business lawyers nightmares (well some of us anyway). If you poll most small business owners, they could tell you what might be harassment, but might get some things wrong. This post will give you some practical advice about harassment and what employers should know to prevent harassment and to address claims to prevent or minimize a legal claim.

Who Is Covered?

The Short Answer is Everyone.

Under federal law, the anti-sexual harassment laws administered by the Equal Employment Opportunity Commission apply when an employer has 15 or more people on the payroll. The Maryland law is a bit different. If an employer has 15 people on the payroll for each work day in each of 20 workweeks in the previous calendar or current calendar year.

So it might be easy to conclude if you are a small employer with fewer than 15 employees, you are not covered right? Wrong. Or at least it is right as it applies to the federal law.

However, an employer with 14 or fewer employees is exempt from the statutory enforcement provisions of the Maryland law, but still subject to the policy against sexual harassment. An employer can still be sued for wrongful discharge if it is based in a sexual harassment claim and the former employee can cite the Maryland policy.

What is sexual harassment?

Sexual harassment is a form of discrimination based upon upon the sex of a person. More specifically, sexual harassment is unwelcome conduct of a sexual nature, including sexual advances, requests for sexual favors, verbal or physical conduct of a sexual nature that explicitly or implicitly affects a person’s employment, interfere’s with an employee’s job performance,or creates a hostile work environment.

To break this down a bit more. Sexual harassment is:

Unwelcome Conduct. This is a key factor. The sexual conduct must be unwelcome. If the victim voluntarily engages in the behavior it is not harassment. So if a victim willing joins in the jokes, makes sexually inappropriate jokes, willingly partakes in sexual banter, it becomes more difficult to claim the behavior is unwelcome. Be mindful though that while some mild sexual conduct may be acceptable to a person, it is possible to cross the line into conduct that is unwelcome. Also be mindful, that if an employee feels pressured into participating, that is not voluntary. There is a lot of grey area here.

Advances or Requests for Sexual favors. If the requests are from a supervisory employee, the conduct is called quid pro quo harassment. In short, a supervisor cannot condition any kind of job action on performing any sexual favors. A supervisor is not necessarily the immediate supervisor, it can be someone further up the chain of supervisors. Yes, most people could identify this kind of action as harassment pretty easily, because we all should know that a supervisor asking a subordinate for sexual intercourse in order to get a pay raise or promotion is just wrong.

Conduct that Affects Performance. Now we are getting into situations a little more difficult to spot. A coworker who constantly asks for a date, makes comments about the appearance of others (and not just coworkers but anyone), engages in physical conduct that bothers an employee, all can be harassing conduct that affects job performance. If the unwelcome sexual conduct would make a person in a similar situation uncomfortable, there is a claim. This kind of harassment is a hostile work environment often felt by the employee themselves. Bear in mind, unlike quid pro quo, this kind of conduct that begins to affect the employee’s work performance often occurs over a long period of time, across multiple incidents. Each of the incidents taken individually might not arise to harassment and might not even be considered harassment by observers, but taken together can have a very negative impact of the victim’s work.

Creating a Hostile Work Environment. This is conduct that may not necessarily be directed by the harasser to the victim of harassment and the person who is on the receiving end of the conduct may not consider it harassment, particularly if they are engaging in the conduct. For example two coworkers talking about sexual content that is overheard by a third person who finds the conduct unwelcome is harassing conduct that creates a hostile work environment for the third person.

Conduct is Pervasive and Frequent. This aspect if often overlooked. A one time off-color joke, a stray, infrequent comment about appearance, one incident of “elevator eyes” is generally not going to be enough to make it harassment. While there are not bright line rules about frequency or scope, clearly the more often it happens, the greater the problem. But two times can be a pattern. Particularly when dealing with harassment affecting the job performance or hostile work environment conduct, each incident in the pattern may be small, and might not, if taken in isolation, even be hostile behavior, but when viewed all at once, becomes clear that the conduct is harassment.

As this series goes on, we will find sexual harassment is largely a matter of facts and circumstances. So outside of quid pro quo conduct, what one person finds as harassing conduct, another may find tolerable, even acceptable.

Some important additional points to remember:

1. The sex of the harasser and the victim and any third parties is completely irrelevant when determining if conduct is unwelcome or if harassment exists
2. Harassing conduct may come from supervisors, coworkers, clients or customers, visitors or vendors. Employers should be particularly sensitive about conduct from clients, particularly in situations where the client and an employee might in close proximity or even alone.
3. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
4. The employee who was harassed doesn’t have to be terminated or have other type of legal injury to have a claim for harassment.
5. Retaliation of any kind by any person because a employee reported harassment is likewise illegal. Policies should be made absolutely clear on the subject of retaliation.

Next week, I will be discussing the key elements of a good anti-sexual harassment policy.

In the meantime, what are some of the difficulties you have with the definition of harassment? Are there things in the definition that you wish were clearer? Do you think any part is over-kill?