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How to Recognize and Address Workplace Sexual Harassment

This year's flood of allegations have businesses evaluating their policies and reputations


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In 2017 the issue of sexual harassment has again come to the fore as a flood of allegations, some going back decades, have been made against actors, entertainers, politicians movie moguls and others.  

Many of these recent charges can credibly be described as sexual harassment in the workplace. Indeed, charges of sexual harassment continue to form a significant portion of the claims investigated by the Equal Employment Opportunity Commission (EEOC). Between 2010 and 2016, the agency received 87,683 charges of sexual harassment and recovered approximately $296 million in settlements for harassment claims. And these numbers do not include the thousands of civil lawsuits filed by employees each year or the jury verdicts or settlements that ensue.

Although the concept of sexual harassment is by no means new, it seems many employees and employers still don’t get it – they’ve missed the message about the wide variety of language and behavior that may give rise to liability. Harassment is defined as any conduct of a sexual nature that is severe or pervasive enough to create a hostile work environment. Simply put, sexual harassment encompasses much more than unwelcome physical contact and language of a sexual nature.

Sexual harassment can include any and all of the following:

Sexually oriented “kidding” or “teasing”

  • Non-verbal sexual conduct, such as gestures, leering or “elevator eyes”
  • Telling sexual stories or describing sexual conquests (even when made up)
  • Offensive visuals, such as explicit photographs
  • Sexual content in email, texts, greeting cards, etc.

TYPES OF SEXUAL HARASSMENT

“Quid pro quo” harassment (literally, “this for that”) occurs when someone with authority promises a subordinate a reward in exchange for participation in a relationship, or threatens a negative consequence for refusing to participate. One example includes a manager who implies to a subordinate that she will be promoted if she has an affair with him. Quid pro quo claims also come up when a manager and more junior professional have a consensual affair, the affair ends and the manager doesn’t get the message.

Far more common are claims of “hostile work environment” sexual harassment. In those situations, an employee typically alleges that a string of events or conduct – sexual language, stories, behavior or images – is sufficiently severe or pervasive that they interfere with the employee’s work. This may include sexual jokes sent on email, text messages and discussions among coworkers about sex or sexual images in the workplace.

 

Physical behavior also results in sexual harassment claims, including hugging, patting, brushing up against an employee and massaging a coworker’s shoulders. The fact that the person doing the touching does not intend to offend does not keep the person they touched from claiming harassment. Instead, a court will look at the recipient’s impression of the conduct.

Note these same rules apply when it comes to harassment based on race, religion, disability, age, sexual orientation or other protected characteristics. Racial comments, jokes about religion and the like can land employers in the same soup.

TIPS FOR EMPLOYERS TO PREVENT HARASSMENT CLAIMS

  • Have a written anti-harassment policy that prohibits all forms of harassment and discrimination, including sexual harassment, and make sure the policy is updated. 
  • Designate particular people to receive harassment complaints.   
  • Have all employees sign an acknowledgment that they have received the harassment policy.
  • Periodically train employees about harassment and their obligations (employees have responsibilities too) under the employer’s policy.
  • Train supervisors to recognize inappropriate behavior and immediately put a stop to it.
  • Have a policy that defines appropriate internet, email and, where appropriate, cell phone use.  The policy should make clear that the employer’s computer systems are the property of the employer and that the employer may review employees’ email and internet usage.
  • Understand that not everyone has the same level of comfort about touching.  A hug that to one person would feel reassuring to another may seem threatening.
  • Remove any images in the workplace that may be at all suggestive.
  • Understand that electronic communication is the same as a written letter.  It can remain on the recipient’s computer for as long as the recipient decides to keep it.  And even deleted emails can be recovered years later.  The simple rule is, if you would not want it on the front page of a newspaper, you shouldn’t email it, text it, blog it or tweet it.
  • Consider prohibiting, or at least discouraging managers from engaging in romantic relationships with subordinate employees.
  • Know that both men and women can claim sexual harassment, and that men can claim harassment by other men and women by other women.
  • Be aware that the law prohibits harassment by third parties such as customers or vendors.  If the employer becomes aware of it, the employer must do something to put a stop to it.

The foregoing provides an overview of certain legal issues. It is not intended, and cannot be construed, as legal advice for any purpose.

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Todd Fredrickson

Todd Fredrickson is a partner in the Denver office of Fisher Phillips. He practices exclusively in the areas of labor and employment law on behalf of employers. Contact him at 303-218-3660 or at tfredrickson@fisherphillips.com

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