Attorney Articles January 01, 2018

For the Record: Combatting Sexual Harassment and Cultivating a Culture of Respect

As the number of sexual harassment and misconduct allegations mount, companies are looking for ways to promote a healthy and respectful atmosphere while establishing clear guidelines for handling any future accusations.

I have counseled countless companies on sexual harassment matters, including providing trainings to managers and employees, conducting thorough investigations, settling matters discretely or defending litigation forcefully. Most recently the allegations leveled against powerful leaders in the entertainment, media, technology and political worlds has served to widen the spotlight on this issue.

What follows is a summary of a training I have been providing to companies regarding ways to identify, investigate, prevent and resolve instances of sexual harassment within the workplace.

Two Categories of Harassment

Sexual harassment claims are generally divided into two types: quid pro quo harassment and hostile work environment harassment. These categories stem from the case law interpreting harassment claims. They are helpful in understanding what behavior constitutes unlawful harassment, but there is often overlap between the categories.

The terms of each category is less important than the ultimate question of whether the conduct has altered the terms and conditions of employment sufficiently to be attributable to the employer and unlawful.

Here’s a closer look at quid pro quo:

  • Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
    • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
    • Submission to or rejection of such conduct is used as the basis for employment decisions affecting an individual.
  • Employees claiming quid pro quo harassment must show:
    • Sexual advances that were unwelcome
    • Harassment that was sexually motivated by the harasser
    • The plaintiff's reaction to the advances negatively affected tangible aspects of their employment (such as compensation, promotion or hiring)
    • The harassment is attributable to the employer because the harasser may have a direct impact on the tangible aspects of plaintiff's employment

Hostile Work Environment Harassment

  • Hostile work environment harassment is more widely alleged than quid pro quo harassment and is more subjective. It does not require tangible job consequences or financial injury.
  • To rise to the level of hostile work environment harassment, the conduct must be sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.

To establish a hostile work environment harassment claim, it must be proven that the environment was severe or pervasive enough to change the conditions of employment and create an abusive environment, judged by both:

  • An objective standard (in other words, any reasonable person would find the conduct abusive); and
  • A subjective standard (in other words, the employee in question found the conduct abusive).

Factors considered include the frequency of the conduct, the severity of the conduct, whether the conduct is physically threatening or humiliating or merely an offensive comment, and whether the conduct unreasonably interfered with an employee’s work performance.

Some conduct that may contribute to creating a hostile work environment includes:

  • Telling or emailing sexually explicit or demeaning jokes or using innuendo
  • Repeated requests for adate with someone who is not interested, even in jest
  • Suggestive, insulting or obscene comments or the use of diminutive expressions such as “dear,” “stud,” “sweetheart” or “honey”
  • Inappropriate or suggestive comments about appearance or dress
  • Discussion about sexual thoughts, fantasies or activities
  • Leering or catcalls at someone or sexual gestures with hands or body
  • Unwelcome touching
  • Standing or sitting too close to someone, or following an employee or blocking his or her way
  • Displaying sexually explicit magazines or cartoons or calendars showing individuals in bathing suits or underwear
  • Massaging another person on any part of his or her body

Unwelcome Conduct

  • Unwelcome harassment means that any sexual advances must not have been consensual and any other harassment must not have been perceived as welcomed teasing.
  • Welcome versus unwelcome conduct can be difficult to clearly discern. One circuit court has held that to be actionable, the conduct must be unwelcome "in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive“.
  • To determine whether conduct was unwelcome, the EEOC examines "the record as a whole and the totality of circumstances…"

Age-Based, Disability-Based, Race-Based, Religion-Based Conduct that May Create a Hostile Work Environment

  • Using ageist terms or phrases when referring to employees
  • Using any slang words or derogatory terms in referring to employees of different races or religions
  • Mimicking the accent of an employee of a particular race or national origin
  • Telling jokes or making comments that focus on age, disability, race or religion (or any other protected class, including gender and sexual orientation)
  • Speculating about an employee’s mental condition (even in jest)
  • Discussing known or perceived mental conditions or impairments of an employee, unless raised by the employee in connection with a request for a reasonable accommodation
  • Disclosing an employee’s medical condition to other employees

Reasons Employees May Not Report Harassment 

  • Ignorance of the law or company policy
  • Confusion on what caused the behavior
  • Doubt about one's perception of the behavior
  • Concern over not being believed, feeling humiliated or being blamed.
  • Fear of damaging career
  • Fear of retaliation

Managers’ Responsibilities

  • Every manager must be knowledgeable about the company’s harassment policy and reporting procedures.
  • Managers are listed in the policy as “go to people” in the event an employee witnesses or experiences discrimination or harassment.
  • Managers should respond promptly and appropriately to complaints or questions about discrimination.
  • Although confidentiality will be maintained to the fullest extent possible, supervisors should never guarantee confidentiality of reports or investigations about reports.
  • Managers must report all employee complaints
  • Take steps to eliminate harassment in the workplace (for example, do not let inappropriate activity go unchecked or tacitly approve of inappropriate behavior).
  • Be a model of good behavior and decline to participate in any harassing behaviors (for example, do not join in on jokes that may be offensive).
  • Make smart and professional decisions in social settings, particularly when alcohol is involved (for example, refrain from making suggestive comments or flirting with more junior employees).
  • Consult with human resources when uncertain about appropriate activities or behavior.
  • Support the employer in its responsibility to investigate.

How Would a Harassment Complaint Be Investigated?

  • The Company commits to conduct a prompt, thorough and impartial investigation. An alleged harasser would not have control over the investigation.
  • The investigator (most likely a member of Human Resources) ordinarily would interview the employee who complained, the alleged harasser, and others who could reasonably be expected to have relevant information.
  • Generally, employers are expected to investigate all complaints of unlawful harassment, even if the employee does not want an investigation.

Importance of an Investigation

  • Internal investigations are an important tool for responding to complaints or incidents of suspected workplace misconduct because they assist employers in determining:
  • Whether allegations of misconduct have merit
  • Who was involved in the misconduct
  • Disciplinary or other measures that should be taken to prevent recurrence and limit employer liability
  • Preventative steps to avoid future similar incidents
  • The practice of conducting investigations can also help an employer:
  • Improve employee morale
  • Increase productivity (when coupled with appropriate disciplinary action)
  • Reduce turnover rates
  • End inappropriate conduct

Confidentiality

  • Confidentiality is paramount to the success of an internal workplace investigation.
  • Complaining employees are much less likely to come forward if they do not anticipate that their concern will be addressed as confidentially as possible.
  • However, confidentiality can never be fully promised, as some information about the allegations and those involved must be disclosed for all witnesses to fully share the scope of their relevant information and to conduct a fair investigation.
  • Company X is committed to keeping information about any employee complaint/investigation as confidential as practicable while complying with it legal obligations and respecting the rights of everyone involved.

Consequences

Disciplinary Action

  • If Company X determines that an employee has engaged in unlawful harassment (inner circle conduct), it will take appropriate disciplinary action against the employee.
  • The level of discipline may vary depending on the circumstances but may include immediate termination of employment.
  • Employee X is committed to taking action to stop immediately any inappropriate behavior.

Company Liability for Unlawful Harassment

  • A company is strictly liable for harassment by supervisors if it results in a tangible employment action (such as termination or demotion).
  • A company may be held liable even without any tangible employment action if the employee can prove hostile work environment harassment.

Manager Liability

  • Managers should understand their potential liability for misconduct. In some states, managers can be held individually liable for violations of anti-discrimination laws, such as harassment.
  • Managers may be found liable for other legal claims including assault and battery, intentional infliction of emotional distress, and defamation.

Possible Remedies for Unlawful Harassment

  • Back pay.
  • Front pay.
  • Emotional distress damages.
  • Punitive damages.
  • Attorneys' fees and costs.
  • Reinstatement.

Prohibition of Retaliation

  • The law also protects employees from retaliation for complaining about protected class harassment.An employer may not take any adverse employment action to “punish” an employee for complaining of protected class harassment internally, for filing a lawsuit or for participating in an investigation.
  • “Adverse employment actions” include:
    • Termination from employment.
    • Demotion.
    • Reassignment to a less desirable position or duties.
    • Reduction of work hours.
    • Failure to promote.
    • Failure to award pay increases or raises.

Expectations

  • Refrain from discrimination or harassment.
  • Refrain from retaliation.
  • Do not engage in other inappropriate workplace conduct.
  • Familiarize yourself withCompany X’s policies and procedures.
  • Promptly report any incidents of possible policy violations.
  • Cooperate in any workplace investigation to the extent you have relevant knowledge.