Addressing Claims of Sexual Harassment in the Workplace

As sexual harassment allegations surface from a well-funded ride- sharing service, employers are reminded that addressing a claim of sexual harassment is a difficult and sensitive situation. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.” 

The EEOC defines two types of sexual harassment under Title VII of the Civil Rights Act - quid pro quo and hostile work environment.  Although Title VII generally applies to employers with 15 or more employees, many states have similar anti-harassment laws that apply to smaller employers.  Quid pro quo, or “one thing in return for another,” occurs when submission to or rejection of unwelcome sexual conduct by an individual is used as the basis for employment decisions affecting such individual.

For an employee to support an allegation of quid pro quo harassment, the harasser must have supervisory authority and the power to grant or refuse employment terms affecting the employee. Hostile work environment occurs when the conduct "unreasonably interferes with an individual's work performance" or creates "an intimidating, hostile or offensive working environment." Unlike quid pro quo harassment, a hostile work environment can result not only from the actions of a supervisor, but also an agent of the employer, a co-worker or a non-employee.

Employers often believe that sexual harassment is limited to unwelcome physical advances of a sexual nature when it actually includes any unwelcome verbal, written, physical, nonverbal or visual behaviors based on a person’s sex.  The alleged victim and harasser can be either a man or a woman, and they can be the same sex.  Several examples of harassment include:

• Making sexual comments about an employee’s body or clothing
• Sending suggestive notes or emails
• Repeatedly asking someone out
• Sharing sexual anecdotes or lewd jokes
• Inquiring or making derogatory remarks about an employee’s sexual history, orientation or gender identity
• Deliberately touching, leaning over, cornering, blocking or brushing up against another person
• Spinning work discussions into sexual topics
• Spreading rumors about an employee’s sexuality
• Checking someone out; looking them up and down
• Whistling, cat-calling or staring in a sexually suggestive manner
• Gesturing or making facial expressions in an offensive, sexual nature
• Possessing, sharing or displaying sexual images, screensavers or emails
  

Employees take cues from management on what constitutes acceptable behavior in their workplace. Employers can shape their workplace culture by adopting and enforcing policies requiring employees to treat their colleagues with respect, and educating managers and employees on proper conduct and conversation in the workplace. In many instances of sexual harassment, the accused does not realize their behavior is unwelcome, and they are unaware that their actions or words not only make the victim uncomfortable but also could constitute sexual harassment. Educating employees on appropriate behavior and instructing managers on recognizing and intervening when inappropriate behavior occurs will lead to quicker resolution of issues and limit liability.

When an employer becomes aware that sexual harassment may have occurred, it is crucial to act immediately. Even if one lower-level supervisor is aware of the harassment, this could still be construed as the employer having knowledge and could lead to employer liability. It is important to train all managers how to report, investigate and address allegations of sexual harassment.  Victims frequently do not make formal complaints, as they may be embarrassed to discuss the incident, think they will not be taken seriously or fear retaliation from the accused.

If an employer has information that indicates sexual harassment may have occurred, the employer should not wait for a formal complaint before investigating the circumstances.  The employer should talk to the employee who may have been harassed and thank them for sharing information.  The employer should commit to a prompt follow-up while regularly checking in with the alleged victim.  The employer should also emphasize that any behavior that violates company policy won’t be tolerated and is subject to disciplinary action.

Here are steps all employers should consider taking to limit liability from claims of sexual harassment: 

• Make sure a policy is in place prohibiting actions that could be construed as sexual harassment. Additionally, include an established complaint investigation process to ensure efficient and consistent action is taken to minimize risk and disruption. Once these policies are in place, train all managers and employees on the policy and require their written acknowledgement of having read and understood it. Ensure the policy is enforced.
• Train managers to understand the types of conduct that violate the employer’s anti-harassment policy, the seriousness of the policy, the responsibilities of supervisors and managers when they learn of alleged harassment and the prohibition against retaliation.
• Take all sexual harassment complaints seriously as employers have a duty to investigate all claims.
• When a potential incident of sexual harassment is discovered, conduct an unbiased investigation into the complaint to determine if there’s been a violation of the sexual harassment policy.
• During your investigation, focus on whether the alleged behavior was unwelcome and violated the policy, not the intent of the accused.
  

This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.

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