Wednesday, November 15, 2017
Maintaining Business Ahead of the Rising Tide of Sexual Harassment Claims
To the average business owner, the salacious details of sexual harassment, sexual assault, and cover-ups coming out of Hollywood and the political world may seem too remote to affect business. However, the events of the past few months are nothing short of a revolution in the way workplace harassment is addressed, and the "#metoo" campaign demonstrates that sexual harassment is not only for the rich and famous. It happens in all industries, amongst employers of all sizes.
What is “Sexual Harassment”?
The Equal Employment Opportunity Commission (“EEOC”) defines sexual harassment this way:
"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of 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."
There are two types of sexual harassment: quid pro quo and hostile work environment.
Quid Pro Quo
Also known as “this for that” harassment. This type of harassment requires an express or implied request to trade sexual favors for advantages in the workplace. The harasser must be in a position of control over some aspect of the victim’s employment such as hiring, firing, promotions, raises, etc. By way of example, the Hollywood “casting couch” is a form of quid pro quo sexual harassment: you sleep with me, you get the part.
Hostile Work Environment
A “hostile work environment” is a legal term defining unlawful discriminatory behavior based on one of the protected classes under Title VII. A sexually hostile work environment results where continuous, unwanted sexual comments or behaviors change the terms and conditions of employment, and remaining on the job becomes untenable. It is important to note that the gender of the harasser and the victim do not matter. The harasser may be a supervisor, co-worker, client, customer or non-employee; the victim may not even be the intended recipient of the harassment, but a person who overhears sexual harassment. There is no need to show economic injury to prove sexual harassment.
Hostile work environment claims comprise the vast majority of sexual harassment claims, and are difficult to prove or defend against because different people have different levels of tolerance for sexual comments or innuendo. As such, Texas courts require the comments or behavior to be “sufficiently severe or pervasive.” To meet that standard, the court will look at the frequency of the comments, whether they are threatening or humiliating, and whether they interfere with the employee’s work performance. Examples of a hostile work environment include: an employee who is subjected to constant requests for dates after they have told the other person they are not interested, or employees who are subjected to persistent comments about their looks or body.
Sexual Harassment and Social Media
Social media, with the instantaneous, wide-reaching audience it brings, is the platform where many people chose to relate their stories of sexual harassment. Social media provides a sense of community, solidarity, and perhaps anonymity that victims of sexual harassment did not have in the past. While these stories have certainly raised the level of awareness on an important issue, from a legal perspective the concern is that Twitter and Facebook have become the new “courts.” In these courts, an allegation need not be proved before customers are calling for boycotts of your products or services.
A quick Google search on “sexual harassment” will uncover untold numbers of tweets and posts from people in all walks of life calling for the removal of the harasser, or a boycott of their employer or company. The problem is that this “take action and ask questions later” approach does not allow time for the accused to defend themselves -- and for employers that may be problematic because good employees may be falsely accused, and the employer may expose itself to a claim of defamation.
What Should You Do?
The #metoo campaign proves that the tide has truly turned on reporting sexual harassment, and whether it’s legally actionable, people feel more motivated now to reveal that they have been subjected to sexual harassment. Some of this behavior likely happened at a workplace, and it’s also likely that the employer has no clue it happened. Yet, ignorance is not bliss. Employers are liable for the sexual harassment of employees unless: 1) the employer takes “reasonable care to prevent and avoid” sexual harassment and 2) the employee unreasonably failed to complain to management or to otherwise avoid the harm.
The Importance of an Anti-Harassment Policy
Reasonable care requires an employer to adopt and promote awareness of an anti-harassment policy. If no policy exists, now is the time to create one. If a policy was created years ago, now is the time to review and make updates. It would also be beneficial to require managers and employees to attend training on not only the policy, but also on what sexual harassment looks like, how to avoid it, and how to deal with (manage? confront?) complaints.
An anti-harassment policy prohibits all forms of harassment based on any protected class, including sex, under both federal and state law.
- The policy will establish and communicate a clear reporting mechanism, which requires employees to report workplace harassment and provides multiple avenues to bring such complaints.
- The policy will establish and communicate a strong policy prohibiting retaliation for reporting harassment.
In addition to an anti-harassment policy, employers would be well-served to consider implementing policies addressing the fact that sexual harassment may happen after hours, or while using employer-provided equipment. Additional guidelines include: a general social media policy as well as one specifically for employees using social media to market your company, computer and telephone use policy, nepotism or “no dating” policy, a disciplinary policy, and an investigation policy.
Overall, implementing policies with clear definitions and statements will, hopefully, encourage employees to report issues internally. While an investigation must be conducted quickly, addressing it internally will allow the process to unfold and the facts to become apparent. It will also help the employer protect the reputation of the alleged harasser should the claim be false.
Monica Narvaez advises clients on labor and employment matters, including the design and implementation of policies, policy manuals, and litigation avoidance. She litigates disputes before the TWC, EEOC, DOL, state and federal courts, and holds the SHRM-SCP and SPHR qualifications.
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