Title VII, as it is generally known, prohibits discrimination on the basis of race, color, religion, national origin and sex.
Harassment can be difficult to define. A comment addressed to one employee may be utterly harmless, while a similar comment addressed to another employee, especially if it is repeated, may subject the employer to large liability.
Further complicating this tangled web of law is the complex approach required to respond to and remedy alleged harassment. Recently in the context of sexual harassment, we have seen more answers to the proverbial question of “what is to be done with the alleged harasser?” But generally speaking, employers are witness, prosecutor, judge, jury and executioner with each allegation of workplace sexual misconduct. The law requires the employer to take corrective action to ensure harassment will not occur again. The employer may face a lawsuit from the victim and the alleged harasser who is subsequently terminated.
The duty to prevent harassment
An employer should take all steps necessary to prevent harassment from occurring, such as adopting a comprehensive anti-harassment policy, providing sexual harassment training for its employees, affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment, promptly investigating all allegations of harassment, taking appropriate corrective measures in response to all investigations of harassment.
The same principles that apply to sexual harassment also apply to harassment, discrimination or retaliation based on other factors protected by the law, such as sexual orientation, race, color, national origin, religion, age and disability. Employers should make sure that their anti-harassment policies and training cover unwelcome, offensive comments and conduct based on sexual orientation, race, color, national origin, religion, disability, age and not merely sex. A company’s policy should address harassment, discrimination and retaliation.
The definition of harassment
Title VII makes it “an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” Colorado law, under the Colorado Anti-Discrimination Act (CADA) makes it unlawful to discriminate against employees on these bases and also makes it unlawful to discriminate on the basis of sexual orientation. To fully understand Title VII and CADA’s prohibition against discrimination on the basis of sex, an employer must understand what constitutes “sexual harassment.” Sexual harassment between people of the same sex is also illegal under Title VII and CADA because it can create an offensive work environment because of sex.
Title VII does not expressly classify sexual orientation as a protected classification. Despite the omission of gender identity, sexual orientation or transgender status, the Equal Employment Opportunity Commission (EEOC) extends Title VII, based upon the plain meaning in its current form to prohibit gender/sex stereotyping applied to employment actions.
To be considered “sexual harassment,” the harassment does not necessarily have to be sexual in nature and can include offensive remarks about an individual’s sex. Sexual harassment is unwelcome conduct, of a sexual nature, that is sufficiently pervasive or offensive to unreasonably interfere with an employee’s job performance or creates an intimidating, hostile or offensive working environment.
Under Title VII, there are two types of sexual harassment:
- hostile work environment
- tangible employment actions (also referred to as “quid pro quo”).
While the two types are theoretically distinct claims, the lines are not clear and the two often occur together.
The EEOC regulations relative to sexual harassment state: unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment 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 by an individual is used as the basis for employment decisions affecting such individual
- such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment
- the conduct also must be unwelcome.
Sexual harassment can take many forms and it is difficult to define what conduct constitutes sexual harassment because the individual circumstances can vary a great deal. Comments that are made among friends are sometimes welcome, but the same comments made by a supervisor to a subordinate may be offensive to the subordinate. The most common forms of sexual harassment include the following:
- demanding that an employee submit to sexual conduct in order to avoid being fired or to avoid some other detrimental action on the job
- requiring an employee to perform sexual favors in exchange for receiving a benefit on the job, such as a pay raise, promotion or desirable assignment
- preferential treatment or promises of preferential treatment to an employee for submitting to sexual conduct, including soliciting or attempting to solicit any employee to engage in sexual activity for compensation or award
- engaging in any type of unwelcome advances, such as repeatedly asking an employee for a date if the employee has stated that he or she is not interested
- unwelcome propositions or sexual comments, such as sexually oriented gestures, noises, remarks, jokes or comments about a person's sexuality or sexual preference
- vulgar or crude comments of a sexual nature
- stories, joking, teasing, innuendos or discussing personal subjects of a sexual nature
- inappropriate comments or conduct based on gender or sexual orientation
- referring to an employee as a “hunk,” “doll,” “babe,” “honey” or other gender-based slang terms or nicknames
- commenting or asking about a co-worker’s dating, sex life or other personal matters
- displaying or showing offensive pictures to a co-worker or other graphic materials, including posters, photographs, calendars, magazines, computer files, etc.
- sexual or discriminatory displays or publications anywhere in the employer’s workplace by employees
- touching an employee in a sexually offensive way
- intentionally or repetitively brushing against another employee
- inappropriate staring at another employee, touching his or her clothing, hair or body
- elevator “eyes” (repeatedly looking an employee up and down)
- whistling at another employee in a provocative manner
Whether any of the above items will constitute harassment under the law will depend upon all of the circumstances surrounding each case. As explained below, the comments or conduct must be unwelcome, pervasive and severe.
Harassment based on religion
Title VII and CADA prohibit harassment of employees because of their religious beliefs or practices or lack thereof. Title VII and CADA may also be violated if discrimination or harassment based on religion creates a hostile environment.
Religious harassment could occur when employees are:
- required or coerced to abandon, alter or adopt a religious practice as a condition of employment
- subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive as to be hostile or abusive.
Harassment can include, for example, offensive remarks about a person’s religious beliefs or practices. Although the law does not prohibit simple teasing, offhand comments or isolated incidents that are not very serious, 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). Therefore, it is necessary for employers to evaluate the surrounding circumstances to determine whether or not particular conduct or remarks are unwelcome.
The EEOC has issued a policy statement addressing the issue of age harassment. The policy gives examples of harassment such as age-based comments, teasing, and threats. Examples of comments that are inappropriate based on age include referring to someone as a “geezer,” “boomer,” “baldy” or other slang expressions. The EEOC will investigate and pursue claims of age harassment in the same manner as claims of other types of harassment. Many of the principles applicable in sexual harassment cases are equally applicable to age harassment.
Although the ADEA and CADA do not prohibit simple teasing, offhand comments or isolated incidents that are not serious, 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.
Sexual harassment violations caused an employer payout of $61.6 million in 2021 according to the Equal Employment Opportunity Commission (EEOC) annual data. Sexual harassment is a form of workplace gender discrimination that has been construed to violate both Title VII and the CADA. In general, the same legal standards govern claims of sexual harassment under the CADA as apply to claims of sexual harassment under Title VII.
Sexual harassment is deliberate or repeated unsolicited comments, gestures or physical contact of a sexual nature, which are unwelcome and directed at an employee because of his or her gender. Sexual harassment is behavior that meets both of the following criteria:
- Sexual in nature - Behavior that is sexual in nature may be:
- verbal - such as sexual jokes, propositions, slurs or innuendo, remarks about an employee’s physical appearance, use of derogatory sexual stereotypes, repeated invitations to social events or whistling
- nonverbal - such as staring or leering at someone’s body, deliberate blocking of a person’s path, displaying sexual material (such as obscene pictures or cartoons), writing sexual notes or making sexual gestures
- physical - such as massaging, touching, deliberately brushing up against someone, hugging, pinching, grabbing or actual physical assault.
- Unwelcome - To violate Title VII and the CADA, the sexual conduct must be unwelcomed by the employee at whom it is directed (and occasionally others affected by the harassment). The test of “unwelcomeness” adopted by most courts is that the employee did not solicit or invite the sexual conduct and regarded the conduct as undesirable or offensive.
In determining whether sexual behavior was unwelcome, courts look to objective evidence of an alleged victim’s conduct rather than consider his or her non-communicated feelings.
A victim of sexual harassment may, however, be able to establish the unwelcome nature of the advances even though he or she:
- did not inform the harasser directly that his or her advances were unwelcome (An employee’s conduct alone can demonstrate that the sexual behavior is unwelcome, such as through a consistent failure to respond to suggestive comments or gestures.)
- acquiesced to sexual activity with the harasser. The legal inquiry is not whether the victim voluntarily engaged in sexual activity but whether the entirety of the victim’s conduct indicates that the sexual advances were unwelcome. This distinction rests on a recognition that victims of harassment may “consent” to advances due to pressure to retain a job.
Types of sexual harassment
Courts have recognized two types of sexual harassment:
- Quid pro quo harassment occurs when submission to or rejection of the employer’s sexual advances by the employee is used as the basis for an employment decision affecting the employee. In other words, this type of harassment occurs when an employer demands sexual favors in exchange for work-related benefits.
- Example - Employee A is promoted due to his or her acceptance of his or her supervisor’s advances. Employee B is terminated due to his or her rejection of his or her supervisor’s propositions.
- Hostile work environment harassment occurs when the sexual conduct unreasonably interferes with the employee’s job performance or creates an intimidating, hostile or offensive working environment. To prevail with this type of claim, the victim must establish that the harassment was sufficiently severe or pervasive to have altered the conditions of his or her employment and created an abusive working environment. A few isolated remarks or jokes of a sexual nature will usually be insufficient to establish hostile environment harassment.
Whether a hostile work environment has been created is determined by looking at all the circumstances of the interactions between the alleged harasser and victim, including the frequency and severity of the sexual behavior. The sexual conduct is evaluated from the standpoint of a “reasonable person” rather than that of a hypersensitive person. The harassment must be objectively and subjectively offensive – one that a reasonable person would find hostile and one that the employee in fact did find to be hostile.
In harassment cases, employers are strictly liable when harassment perpetrated by supervisory personnel results in a tangible employment action, which is defined as a significant change in employment status. Supervisory personnel are those who have the authority to grant or deny tangible employment benefits (for instance, promotions, demotions or transfers). Courts traditionally hold that supervisors who have the authority to make employment decisions are legally acting on their employer’s behalf, even if the employer did not know of the unlawful conduct or even if the employer had policies forbidding such conduct. In these cases, the employer has no defense.
When a supervisor’s harassment does not culminate in a tangible employment action, the employer may have a defense if it can establish both of the following:
- that it exercised reasonable care to prevent and promptly correct any harassing behavior
- that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
In line with this defense, an employer should:
- Implement and distribute anti-harassment policies - An employer can defend against a sexual harassment claim by showing that it exercised reasonable care to prevent sexually harassing behavior. Therefore, employers should ensure that they implement a comprehensive anti-harassment policy. This policy should:
- state that the company will not tolerate harassment by managers, employees or non-employees
- give examples of some types of prohibited conduct or statements (without limiting the application of the policy to these examples)
- outline procedures for reporting harassment and promise that employees will not be retaliated against for raising claims of harassment
- warn that employees who engage in unlawful harassment will be subject to disciplinary action, up to and including termination.
- In addition, employers should make sure that the policy prohibits all forms of harassment, not just sexual harassment.
- Educate employees about harassment issues - Employees need to be educated on the types of conduct that are prohibited under the policy. An employer may want to conduct an anti-harassment seminar as part of any new hire training program. Supervisors and managers should be trained on how to recognize problems and handle complaints.
- Develop an effective reporting/grievance procedure - Often, an employer’s liability is based on its failure to provide employees with a reasonable method to report harassment rather than its failure to have an anti-harassment policy. For instance, the Supreme Court has found that an employer’s policy did not protect it from liability because the policy required the employee to report the harassment to her direct supervisor, the very person who was harassing her. Therefore, employers should ensure that their policies identify at least two different avenues through which an employee may report a complaint, usually to a supervisor and a member of human resources. Employers may also want to consider supplying their employees with a toll-free hotline for reporting complaints.
- Conduct prompt, thorough investigations into complaints - Do not wait for an employee to make a formal complaint. Courts have held employers directly liable for harassment if they knew or reasonably should have known, about the harassment and did nothing to stop it. Furthermore, do not promise an employee that his or her complaint will be kept strictly confidential. Total confidentiality may not be possible because the employer may have to disclose the nature of the allegations and perhaps even the identity of the alleged victim, to the accused or to witnesses in order to conduct a thorough investigation into the claim. Therefore, the policy should only promise that complaints will be kept confidential “to the extent possible.”
- Take appropriate remedial action - Following an investigation into a harassment complaint, the employer should determine what corrective action is warranted and will be sufficient to stop the harassment and should discipline the harasser as appropriate. The employer should meet with the complaining employee and explain the outcome of the investigation and what steps, if any, have been taken to resolve the complaint. Finally, the employer should review the sexual harassment policy with all parties involved in the complaint.
With respect to non-supervisor harassment (that is, co-employees and even non-employees, such as customers or vendors), an employer can be held liable if it knew or should have known, about the harassment and failed to take prompt corrective action.
The Supreme Court has upheld discrimination claims in which an employee is harassed by a supervisor or co-worker of the same sex. The Court stressed that the critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not.
Relationships in the workplace
Recent polls show that office romances are increasingly common in today’s workplace. Statistics show that anywhere from 40-47% of employees surveyed have been involved in a workplace romance and about 20% of employees report that they were receptive to an office romance. For employers, office romances can raise several concerns including:
- the potential for charges of sexual harassment or retaliation
- inappropriate behavior in the workplace
- accusations of favoritism leading to poor employee morale
- the potential for workplace violence if a relationship ends poorly.
In short, dating in the workplace is not a subject that employers should ignore. The concerns created by office romances have led many employers to implement non-fraternization or no dating policies or to use “love contracts” between employees who are in consensual dating relationships. Although most companies do not have formal written policies on office romances, each employer should evaluate its workplace and decide the option that is right for their company.
Most employers currently address workplace romances on a case-by-case basis. This has the advantage of providing the employer with flexibility to address each individual situation. It does, however, raise the possibility that office romances will be treated inconsistently, leading to charges of discrimination. Therefore, in the absence of a written policy, employers should take extra steps to ensure that they treat each situation consistently and apply the same standards to all employees.
One option for employers is to prohibit relationships at work completely in order to reduce the risk of sexual harassment and related claims.
While a potential option, forbidding workplace romances completely may also have adverse consequences. Relationships will continue to exist without the knowledge of the employer and thus the employer will be unable to take steps to lessen potential negative consequences of the relationships. It may also be damaging to employee morale to prohibit all relationships.
Colorado's lawful off-duty conduct statute prohibits employers from firing employees for any lawful off-duty activities, unless the off-duty conduct creates an actual or apparent conflict of interest. Therefore, if two co-workers start dating, but keep their relationship private and outside of the workplace, the company may not be able to take any action against them for it in many circumstances. Therefore, it may be risky for an employer to try to prevent employees from fraternizing.
An employer should ensure that any policy it has regarding workplace relationships is fairly and consistently enforced.
Both employers who do not have a formal written policy addressing workplace romances and those who do have a formal written policy may still consider using a “love contract” between the two employees who are in a consensual relationship.
A love contract, also called a consensual relationship agreement, is a written document signed by two employees in a consensual relationship acknowledging that the relationship is voluntary. It usually contains several elements, including:
- an acknowledgment that the relationship is consensual and voluntary
- an outline of expected behavior such as no “PDA” – public displays of affection – at work
- an explanation of what the parties are to do if the relationship ceases to be consensual, including reporting to human resources
- an affirmation of the employer’s policies prohibiting harassment, discrimination or retaliation
- an acknowledgment that the employees are familiar with and understand the employer’s policies prohibiting harassment, discrimination or retaliation
- an acknowledgment that the employees understand the consequences of failing to follow the employer’s policies
- an agreement that the employees will not seek or accept positions where one reports to the other
- an acknowledgment that each employee will respect the right of the other to end the relationship with no retaliation
- an acknowledgment that the employees will not allow the relationship to interfere with or affect the work environment.
Love contracts offer several advantages, including decreasing the risk of sexual harassment litigation and helping to defend against claims. A document signed by an employee agreeing that a relationship is consensual will help refute an employee who later says that the relationship was not consensual. Love contracts may also:
- reduce the perception of favoritism
- provide an opportunity for human resources to discuss with the employees involved about what conduct is appropriate and acceptable in the workplace
- establish clear rules understood by all parties.
Employers wanting to use a love contract should remember to attach a copy of the company’s sexual harassment policy to the agreement as further proof that the employee was aware of the policy. Moreover, employers should consult legal counsel for assistance in drawing up or reviewing an agreement.
Potential drawbacks of love contracts or anti-fraternization policies
Although policies and love contracts may help an employer defend sexual harassment suits, there are potential drawbacks as well. Employees may regard them as an invasion of privacy and consider them paternalistic. They also place a human resources department in the sometimes uncomfortable position of tracking who is dating whom. Further, employees may not report the relationships that could be the most troublesome to employers, such as extramarital affairs.
Despite these potential drawbacks, however, there are more serious drawbacks to ignoring workplace relationships and employers should address the issue of relationships in the workplace by establishing a clear protocol.
Dating between supervisors and subordinates
Relationships between supervisors and subordinates pose the greatest risk to employers. If the relationship ends poorly, the subordinate employee may claim that they were forced into a relationship by the supervisor. If the supervisor takes adverse action, the subordinate employee may claim that it was retaliation for ending the relationship. In addition, these are the relationships that are the most likely to cause resentment by co-workers and lead to allegations of favoritism.
Therefore, if an employer does not want to go to the extent of prohibiting all workplace relationships, an employer could opt to prohibit only relationships between supervisors and subordinates. Policies prohibiting relationships between supervisors and subordinates should contain certain elements, including:
- A statement of whether dating is prohibited or merely discouraged. If prohibited, a definition of the kind of relationships that are prohibited should be included.
- Whether the employees will be required to sign a love contract.
- A requirement that the supervisor in the relationship immediately report the relationship to human resources.
- The actions that the employer will take upon learning of a relationship (that is, transfer one of the employees so there is no longer a reporting relationship).
Employers should consider whether one of the employees should be transferred to another department with great caution. In addition to consulting with legal counsel, an employer should consider:
- Is the company large enough to accommodate a transfer?
- What will happen to workflow if one employee is transferred versus the other employee?
- What will be the effect on employee morale if one employee is transferred versus the other employee?
- Will one of the employees in question voluntarily accept a transfer?
- Does enforcing the policy have a disparate impact on women? That is, is it more often the woman who is transferred or whose career is impacted? A policy requiring the transfer of an employee in a relationship may be found to be discriminatory if it has a disproportionately negative effect on one sex.
Anti-harassment policies and workplace relationship issues
Regardless of whether an employer has a non-fraternization policy or uses love contracts, an employer should have a policy prohibiting harassment, discrimination or retaliation. See Discrimination. Often when office romances end, especially romances between subordinates and superiors, the subordinate employee alleges that they were compelled to enter the relationship. If adverse employment action occurs after the end of the relationship, an employee may allege that it was retaliatory.
Training employees regarding the company’s policies prohibiting harassment, discrimination and retaliation is critical. Training sessions provide a good time to talk to employees about office relationships and the potential pitfalls of such relationships. Special training should be conducted for management employees. Employers should make sure that supervisors and managers understand that when they act, they are representing the employer.
Whether or not an employer has a policy prohibiting workplace relationships, an employer should have policies or procedures prohibiting couples in a relationship from engaging in inappropriate behavior while at work, including:
- no overt public displays of affection at work, including kissing or handholding
- work communications systems are to be used for work only – no personal email, text messages or voicemail using working time or company equipment
- behave professionally and in a business-like manner while at work or all company functions
- romantic squabbles should be left outside of the workplace.
An employer should address job performance problems as they arise.
When a workplace relationship ends
Breaking up is never easy and ending an office romance is even more difficult and complicated. In the best scenario, the employees involved in a romance will exercise discretion, conduct the break up outside of work and keep their distance while at the office afterwards. However, this may not always occur. In some cases, an employer may be called upon to squelch gossip and make sure employees who were previously romantically involved maintain their composure and civility on the job. Such situations will require sensitivity and tact on the part of the human resource professionals handling the situation. Any inappropriate behavior should be dealt with fairly and immediately. However, employers should always be mindful of the risks that disgruntled employees may make baseless charges of harassment as a result of being scorned. Employers should seek legal counsel to help handle difficult cases.
Taking claims to court
On March 3, 2022, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was signed into law. The law was designed to provide victims of workplace sexual misconduct with the right to seek justice in a court room. Traditionally, such matters were addressed through arbitration.
The act amends the Federal Arbitration Act (FAA) to include a new section, which states, in part:
[A]t the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.
What employers need to know
- The act gives employees the option to invalidate arbitration agreements and class or collective action waivers with respect to sexual assault and sexual harassment claims. This means employees may choose to either arbitrate these claims or pursue them in court regardless of any contractual agreements with their employers.
- The act applies to all claims that arise or accrue after March 3, 2022, regardless of the date of the agreement at issue. The act, however, does not affect claims that arose or accrued before March 3, 202
- The act does not affect otherwise valid arbitration agreements for claims that are not related sexual assault and sexual harassment.
- Future litigation is anticipated over the scope and interpretation of this law.