What is Sexual Harassment
Sexual harassment in the workplace is one of the fastest growing areas
of employment law. Because of its salacious nature, these claims also
receive the most press.
Set forth below is a generalized and very basic guide to sexual harassment
in the workplace. Sexual harassment in the workplace is often claimed
in conjunction with other illegal acts, such as national origin discrimination,
racial discrimination, gender discrimination or age discrimination. All
such discriminations follow a similar but not identical statutory pattern.
The basic principles described here apply to California and federal
law. There are some significant differences between state and federal
law that could make a difference in individual cases although for procedural
reasons, most sexual harassment claims are made in the California State
Courts. The damages and cost of defending against sexual harassment in
the workplace differs greatly between California and Federal law.
Quid-Pro-Quo Harassment
There are two types of employment related sexual harassment, “quid-pro-quo” and “hostile
environment.” Each type requires a different type of proof. “Quid-pro-quo” is
Latin for “this for that.” These claims are generally against
supervisory personnel and allege that job benefits were sought to be
traded for sexual favors. When the trade is based on sex, it is unlawful
harassment. An example would be when a shift manager makes a sexual act
a prerequisite to some type of job benefit or promotes employees who
allow sexual advances over those who do not.
Quid-pro-quo harassment can be made by persons of the opposite sex or
the same sex. The offender can be a man or a woman. Obviously, a woman
who is fired or not promoted because she wouldn't sleep with the boss
can sue. But, it does not have to be a woman, a man can make the same
claims against a woman boss or against another man. What is important
is the express or implied “tit for tat” of sex for job related
benefits.
Completely consensual sex, such as an office affair, is not actionable
but still dangerous since when the affair ends, claims often arise.
What about the case where an employee gets a promotion because she was sleeping
with the boss, and others did not get a raise? Do the other employees have
a claim? Not yet. California like most states does not find sexual harassment
in the workplace or discrimination in the workplace just because a lover got
special treatment. However, if the boss made sexual demands which they refused,
and that is why they believe they did not get the promotion or other benefits,
they have a claim.
Sexual harassment does not even have to be about sex. Discriminating
against women employees because they are women is a form of sexual harassment.
Refusing to allow women to do a certain types of work because it is “too
dangerous” or refusing to hire a man for a “woman’s
job” like nursing has been held to be actionable gender-based sexual
discrimination.
Quid-pro-quo discrimination usually requires either that the offending
party be in a position superior in the company hierarchy to the complainant
or that the company be informed of the problem and not effectively deal
with it. Drafting a good reaction plan can be an effective tool to defuse
this latter type of claim.
What about the person who accepts the offer of advancement in exchange
for sex. Can she sue? Probably. She either deserved the promotion or
she didn't. She should not have been put in the position of considering
whether or not to sell her body to get it. Any job related inducement
to sexual conduct is probably harassment whether or not the employee
willingly goes along with the bargain.
Hostile Environment Harassment
Hostile environment sexual harassment claims involve conduct that creates
an offensive or hostile working environment. The offensive conduct does
not have to be verbal or physical. Obscene pictures and e-mails or in
one case, even a desktop picture of a man’s wife in a two-piece
bathing suit, can result in hostile environment claims. The conduct must
(in the often biased eyes of the jury) be unsolicited and pervasive.
But it can come from same-level employees and no job benefits have to
be involved. So, even your mail room clerk can create a hostile work
environment. The best defense is immediate corrective action. Employers
who ignore any harassment claim, do so at their peril.
What Is Not Sexual Harassment
Hostile environment sexual harassment must be unwelcome. Lewd jokes
and sexual comments are not actionable if no one objects. If two employees
have a good time exchanging bawdy jokes, it would not be sexual harassment
in the workplace as to them, but it might be harassment to others who
are forced to listen. But never assume that your employees are not offended.
Many cases start with such communication breakdowns. It is always safest
to discourage such conduct in the workplace.
If one employee kept telling another employee jokes that the second
employee found offensive, it could be sexual harassment in the workplace
if he or she complains and the problem is not adequately addressed. What
is adequate? It depends on the circumstances but what is most important
is that the claim be thoroughly investigated and corrective steps immediately
implemented. Having a written harassment policy that requires a written
complaint to a supervisor helps.
Lewd e-mails, jokes, pictures, touching, leering, and unwanted requests
for a date have all been found by courts to create sexual harassment
in the workplace.
Who can sue?
Anyone who is offended by a sexually harassing environment may theoretically
sue. However, that employee's sensitivities must be reasonable. An extremely
sensitive person might not be able to maintain a claim, because his or
her feelings of having been offended were not reasonable. This makes
men versus men heterosexual claims slightly more difficult to prove.
The reasonableness is evaluated by a standard that is the same as a
person of the same sex in the victim's circumstances. For example, what
a reasonable woman might think is a hostile environment is not necessarily
the same as what a man might think is a hostile environment. If it is
a woman who was harassed, it is only a reasonable woman's point of view
that counts.
What Is My Defense?
If a manager or supervisor sexually harasses an employee, you may not
have a defense. It helps to have a complaint policy and immediate action
can reduce the damage claim, but a single act of unwanted touching has
been found by some courts to constitute harassment. If such harassment
is found, the company and the offending manager are both responsible.
In such case you should focus on reducing the amount of damages. If the
offender is not a supervisor, then an immediate investigation coupled
with action that stops the occurrences such as the transfer or termination
of the offender will be a defense. If the harassment is based on a hostile
environment, then the best defense is also immediate action to eliminate
the source of the problem.
Damages In Sexual Harassment Cases
Victims of sexual harassment in the workplace can recover for their
lost wages, future lost wages, emotional distress, punitive damages,
and attorneys fees. If the company prevails, they usually do not get
their attorney fees reimbursed. For the employer, sexual harassment is
a lose/lose proposition.
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