Legal Ease


Sexual Harassment – What’s Happening?


By Richard D. Alaniz


what they will do to improve in the months ahead. Generally, it involves pledges to diet more, eat healthy, exercise more, make more quality time for family, and similar personal commitments. But what we will do to improve our workplace in the coming year? The tsunami of sexual harassment


I


allegations that has engulfed so many rich, famous and powerful men that are reported on an almost daily basis raises a fair question – How will this affect the workplace where the not so rich and famous spend their workdays helping their company succeed? The sexual harassment incidents


that arise in today’s ordinary workplace are usually more mundane than the outrageous conduct reported recently involving the Hollywood set and some in the halls of Congress. The most frequently reported complaints generally revolve around a sexually hostile environment created by one too many sexually explicit comments or jokes. On occasion it may even involve unwanted touching. Unless there is some astronomical legal judgment against an offending employer, these incidents are never the subject of television news. The more significant issue to be explored is why do such incidents continue to occur in any workplace.


The Supreme Court and Sexual Harassment Most employers have had in place anti- harassment policies for many years. Many did so in response to the 1998 landmark decisions of the U.S. Supreme Court in Faragher vs. City of Boca Raton and Burlington Industries, Inc. vs. Ellerth. While these cases involved claims of supervisory sexual harassment, they are significant because they set out


100 ❘ February 2018 ®


t is a common occurrence with the start of every New Year that people make personal resolutions about


the critical elements for an employer’s affirmative defense in sexual harassment cases. The Court mandated a standard of reasonable care on the part of employers that could be met by showing that the employer:


Implemented a policy that prohibits


sexual harassment; 1. Trained employees about the policy;


2. Took prompt remedial action when a complaint of sexual harassment was made;


3. Proved that the person complaining failed to take reasonable action to prevent the harm.


What is Sexual Harassment? The Supreme Court has defined sexual harassment as taking one of two forms. “Quid pro quo” (Latin for “this for that”) harassment is one in which submission to the harassing conduct is made a condition of some employment aspect, promotion or continued employment for example. The second form of sexual harassment, the much more common form, known as a “hostile environment” involves conduct that is so “severe or pervasive” that a reasonable person would not tolerate it. Since the standard for a legally


actionable incident of hostile environment harassment is that it be “severe or pervasive”, an isolated or single incident of sexually explicit comments or conduct, such as unwanted touching, would not be considered unlawful in most circumstances. However, given the hyper-active climate regarding sexual harassment that we are currently experiencing, it is probable that the severe or pervasive standard will be tested if not eroded.


Businesses Must Address Sexual Harassment Given the potential costs involved to employers for a proven case of sexual


harassment, one would think that taking all necessary steps to prevent it, would be one of the highest priorities for most businesses. The reality is that for most employers, until they are confronted with the prospect of a six-figure legal judgement against them, simply having a no harassment policy and doing only that training mandated by some state laws is the only action they take on this high-profile issue. And some employers have not even taken the fundamental step of adopting an anti-harassment policy. This is true despite the well-documented impact of harassment on the workplace as a whole. The effects of such gender discrimination include the departure of well-qualified and productive women from the workplace, creating the need to hire and train replacements. It can also have significant financial consequences aside from legal judgments by its impact on productivity, team morale, and employee turnover in general. If the workplace environment is


to reflect that no harassment of any type will be tolerated, that message must come from the top -- senior management. Sexual harassment must be taken seriously by all managers and others in position of authority. Company leaders must ask themselves whether they are fostering a company culture that breeds harassers or thwarts them. Quite often training is provided only to lower level supervisors and employees, excusing upper-level management. The obvious message to the workforce as a whole is that anti-harassment training really isn’t that important. Similarly, using a different standard to measure the harassing conduct of managers, especially senior managers or business owners, is a sure recipe for a finding of legal liability, not to mention the detriment to employee morale. Assuming that employees truly


understand what sexual harassment actually encompasses may be in error.


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