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.
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.
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.” To fully understand Title VII’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 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:
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:
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:
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.
Title VII prohibits harassment of employees because of their religious beliefs or practices or lack thereof. Title VII may also be violated if discrimination or harassment based on religion creates a hostile environment.
Religious harassment could occur when employees are:
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 does 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 $68.2 million in 2019 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 gender. Sexual harassment is behavior that meets both of the following criteria:
Courts have recognized two types of sexual 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:
In line with this defense, an employer should:
In addition, employers should make sure that the policy prohibits all forms of harassment, not just sexual harassment.
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 U.S. 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.
No federal statute explicitly provides protection against discrimination based on sexual orientation or preference, although an executive order extends such protection to the employees of federal contractors. (For a discussion regarding Harassment related to sexual orientation, see Federal contractors and affirmative action). Federal Courts of Appeals in different parts of the country have split on whether sexual orientation discrimination is discrimination “based on sex” within the meaning of Title VII. Petitions for review are pending before the Supreme Court at the time this book went to press. Those companies that do not provide equal treatment to employees on the basis of sexual orientation or preference should monitor the developments in this area because a decision by the Supreme Court could require them to revise their employment practices.
Several federal courts have held that members of the LBGT community do not lose the protection of Title VII if they are subjected to discrimination on the basis of gender stereotyping. Gender stereotyping occurs when an employee is subjected to adverse treatment or harassment by not adhering to some stereotype of what a man or woman should be (e.g., an employer that acts on the belief that a woman cannot be aggressive or that a man speaks in a high voice or walks in an effeminate manner).
The EEOC now considers all forms of sexual orientation or gender identity discrimination to be a form of sex discrimination under Title VII. The agency is actively litigating its position in federal court, but it is unclear whether the courts will adopt the commission’s approach on these issues or await congressional action.
At the state and local levels, however, many communities have laws prohibiting gender discrimination, which includes both the biological and social characteristics of being female or male or gender identity and expression. Employers must continue to stay apprised of new laws as transgender rights and gender identity issues continue to develop across the country.
Concern over potential liability for sexual harassment has led a number of employers to adopt specific policies to address the existence of relationships in the workplace. Polls show that office romances have increased over the last 10 years. These relationships in the workplace can raise several additional concerns for employers, including:
Although it is an uncomfortable topic for many employers, dating in the workplace is not a subject that employers should ignore. The concerns created by office romances have led many employers to implement nonfraternization policies or to use “love contracts” between employees in a consensual dating relationship. Although most employers do not have formal written policies on intra-office dating, each employer should evaluate its workplace and decide the option that is right for it.
One option for employers is to prohibit relationships at work completely in order to reduce the risk of sexual harassment and related claims.
However, forbidding workplace romances completely may have adverse consequences. Relationships could continue to exist without the knowledge of the employer; and as a result, the employer would 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. Furthermore, it may be difficult for an employer to prevent employees from fraternizing outside of the workplace.
Relationships between supervisors and subordinates pose the greatest risk to employers. If the relationship ends poorly, the subordinate employee may claim being forced into the 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 might opt to prohibit only relationships between supervisors and subordinates.
Policies prohibiting relationships between supervisors and subordinates should contain certain elements:
In considering whether to require one of the employees to transfer to another department, an employer should consider:
Whether an employer has a formal written policy addressing workplace romances, it may still be advisable to consider using a “love contract” to be signed by the employees engaged in a consensual relationship.
A love contract, also called a consensual relationship agreement, is a written document signed by employees in a consensual relationship. It acknowledges that the relationship is voluntary and usually contains several elements:
Having a love contract has several advantages, including:
Employers wanting to use a love contract should consult legal counsel for assistance in drawing up or reviewing an agreement.
Regardless of whether an employer has a nonfraternization policy or uses love contracts, an employer should have a policy prohibiting harassment, discrimination or retaliation. Often when office romances end, especially romances between subordinates and superiors, the subordinate employee alleges having been compelled to enter the relationship. If an adverse employment action occurs after the end of the relationship, the affected employee may allege that it was retaliatory.
Training employees regarding the company’s policies prohibiting harassment, discrimination and retaliation is a good time to talk to employees about office relationships and the potential pitfalls of office 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.
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.
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:
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 protocol. Consideration should be given to the difficulty in ensuring that any policy will be observed. If policy and practice is not in sync, the employer may be opening itself to a greater risk than doing nothing.
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