The only reason there is so much focus on this issue is because as each day goes by, more and more women are coming forward about their own experiences with sexual harassment and making allegations against powerful and prominent men. These women are getting plenty of press time because the men are prominent. While these men would probably prefer that their accusers shut up, it’s not likely to happen. For the first time in history, companies are taking prompt action and terminating the offender’s employment.
As a result of the #MeToo Campaign, 2018 is likely to be a banner year for sexual harassment claims.
Generally speaking, a covered employer under both federal and state law is an employer that employs 15 or more employees.
What Constitutes Sexual Harassment?
Stated simply, sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, or other physical or verbal conduct of a sexual nature that affects, explicitly or implicitly, the terms and conditions of one’s employment.
Quid Pro Quo harassment means this for that. For example, have sex with me or you’re fired. Employers are strictly liable for sexual harassment of the quid pro quo type.
Hostile Environment Harassment involves conduct of a sexual nature short of quid pro quo that is pervasive and it affects an employee’s terms and conditions of employment. An example of this type of harassment includes a male employee or board member constantly making sexually charged remarks to a female employee, commenting on body parts or making physical gestures of a sexual nature.
While most complaints are filed by women, men are sexually harassed as well, but rarely complain.
Does Personal Liability Attach? It can.
Sexual harassment offenders can be held personally liable for their conduct depending upon the nature and severity of the harassment even when there is no employment arrangement between the harasser and the victim. Whether liability attaches will depend upon the facts. Employers can be held strictly liable for quid pro quo sexual harassment and liable for failing to address hostile workplace sexual harassment.
Sexual harassment is about power, it is not about sex and the reason that the individuals who are being harassed will not come forward is fear of retaliation. Retaliation is against the law, but it happens all too often.
Employees have a right to work in an environment that is free of sexual harassment. Every employer should strive to provide a work environment that is free of sexual harassment. In order for an environment to be free of sexual harassment, there needs to be a conversation about it and training. Employees need to know the policies prohibiting sexual harassment and management needs to enforce the policies uniformly and quit attacking the victim. Sexual harassment is wrong and it should never be condoned or tolerated.
Despite the fact that employers covered by Title VII and the Civil Rights Act of 1991 are required to have a sexual harassment policy, many don’t, but they definitely should as the law requires it. Does your company have a sexual harassment policy? If not, implement one.
If your company has not conducted sexual harassment training in the last year, it would behoove your company to do so in 2018 and have the company’s sexual harassment policy reviewed and updated, if necessary.
In 2018, resolve to be prepared and take steps to eliminate or prevent sexual harassment in your workplace or at authorized functions outside of the workplace.
A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice. Competent legal counsel should be consulted if you have questions regarding compliance with the law.
Questions regarding this article, sexual harassment training or past articles may be e-mailed to Christina Harris Schwinn at firstname.lastname@example.org. To view past articles written by Ms. Schwinn please visit the firm’s website at www.paveselaw.com. Ms. Schwinn is a partner and an experienced employment attorney with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 336-6228; Telecopier: (239) 332-2243. Ms. Schwinn routinely counsels clients on implementing sexual harassment policies and facilitates sexual harassment training.