Posted In: Business Litigation & Litigation
By Kerri L. Keller on October 24, 2016
Workplace harassment is unlawful when an individual is harassed on the basis of his or her gender or other protected status, such as age, race, or religion; however, it’s possible that sexual harassment may be the most prevalent type of workplace harassment. Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. According to the Equal Employment Opportunity Commission (“EEOC”), “it is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”
There are essentially two types of harassment: quid pro quo and hostile work environment. Quid pro quo harassment is essentially harassment that is committed by a person who can make formal employment actions, such as hiring and firing. Quid pro quo essentially means “this for that.” For instance, quid pro quo harassment would occur if a supervisor conditioned an employee’s career advancement on sexual favors. “Hostile work environment” is the other type of harassment. This type of harassment differs because the harasser does not need to be in a position of making formal employment actions. In other words, the harasser can be a co-worker, or someone who is not an employee of the employer, such as a client or even a customer.
A hostile work environment can arise where there is discussion of sexual activities, the telling of “off-color” jokes, unwelcome and unnecessary touching, commenting on physical attributes, inappropriate gesturing, the use of crude and obscene language, and things of that nature. While jokes do not necessarily equal harassment, they can rise to that level. And, although the law does not prohibit teasing, or an offhand comment, or joke—and isolated incidents that are not serious will not qualify as harassment that is illegal in nature—“harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).” Importantly, a hostile work environment does not always need to be sexual in nature towards the individual who feels wronged. For instance, a woman can allege a hostile work environment if the men tell demeaning jokes, even if they do not directly involve the woman who feels harassed by them.
In order for a work environment to be deemed hostile, it must be (1) subjectively abusive and offensive to the person who is being harassed, and (2) objectively offensive enough that a “reasonable person” would find the environment to be hostile or abusive. The second prong is of particular importance, as it protects employers from those employees who may be overly sensitive. Employers do not have to worry about liability from isolated incidents or the telling of a perhaps inappropriate joke, unless those incidents or jokes would rise to the level of being objectively offensive to a reasonable person. An employer should look at such things as the frequency of the questionable conduct, the severity, whether the conduct was physically threatening, whether it interfered with the employee’s work performance, whether it affected the employee’s well-being, and whether it was a supervisor who engaged in the conduct complained of.
An employer should always strive to create an environment that errs on the side of caution. For instance, an employer should have an anti-harassment policy in place that addresses what sort of conduct is not permitted in the workplace. An effective policy will describe the sort of conduct that is prohibited, state who is protected by the policy and who must abide by it, warn all employees that they must follow the policy, provide a procedure for dealing with complaints and ensure that all complaints will be addressed promptly and impartially, assure that complaints will be dealt with, and ensure that individuals who have engaged in inappropriate conduct will be dealt with appropriately and disciplined There should also be a prohibition against retaliation. Taking measures such as the creation and enforcement of an appropriate policy can help insulate against liability should an employee file a lawsuit and allege harassment.
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