Sexual harassment is one of the most challenging issues facing employers today. It can be extremely difficult to manage the way people in your employ interact, especially in a manner that allows natural interaction and a positive culture to develop while protecting against inappropriate behavior and allegations of sexual harassment.
Part of protecting yourself against sexual harassment claims involves adequate employee education and a clear set of policies, including reporting procedures. Our attorneys can help you develop those policies and educational materials so that your employees know both how to avoid behavior that could be construed as sexual harassment and how to respond if it does occur.
What is Sexual Harassment?
Sexual harassment is prohibited by Title VII of the Civil Rights Act of 1963. The statute applies to private employers, state and local governments, employment agencies and labor organizations with 15 or more employees. Not all sexual conduct in the workplace is considered sexual harassment–a key element of sexual harassment is that the conduct must be unwelcome. However, given the difficulty of determining whether conduct was unwelcome, the best prepared employers err on the side of caution in establishing policies.
The Equal Employment Opportunity Commission (EEOC) is charged with enforcement of Title VII and has set forth guidelines defining two types of sexual harassment.
Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment is what most people think of when they hear the term. It’s clearer and more direct than the other type of sexual harassment, and involves a trade-off. In the direct language of the regulation, when “submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.”
The clearest illustration is a superior offering a subordinate professional advantage in exchange for submission to sexual behaviors, or threatening termination or other disadvantageous treatment if the employee refuses. Of course, there are variations on that theme which may not be quite so clear-cut. For example, the victim of the harassment may not have been threatened directly, but more subtly led to believe that there would be consequences for refusing.
Hostile Environment Sexual Harassment
The United States Supreme Court has ruled that employees have a right under Title VII to “work in an environment free from discriminatory intimidation, ridicule, and insult whether based on sex, race, religion, or national origin.”
Some common triggers for hostile work environment claims include:
- Lewd comments
- Dirty jokes
- Repeated unwanted sexual advances or requests for a date
- Display of offensive material
In order to give rise to a sexual harassment claim, these behaviors must be unwanted, and must be frequent or pervasive. Generally, a single request for a date or off color joke will not support a cause of action. However, it is easy to see how difficult it may be for an employer or supervisory staff to know exactly where to draw the line. This is where clear policies created with the assistance of experienced sexual harassment lawyers can make all the difference.
Defending Against a Sexual Harassment Claim
The best defense is good preparation. Clear policies, good training and a clear and accessible reporting process will not only help your company avoid sexual harassment claims. It will also help you build a defense if your company is accused of sexual harassment.
When the EEOC receives a complaint alleging sexual harassment, the employer will have the opportunity to provide a response, called the “Respondent’s Position Statement”. It is important that you handle the process carefully from the very beginning. What you say in this position statement may significantly impact what comes next.
If the employee and employer agree, mediation may be the next step. If you go to mediation, the mediator will not render a decision, but will attempt to help the parties resolve the claim.
If the parties do not agree to mediation or mediation fails, the next step is investigation. During the investigation stage, you may be called upon to answer questions, provide documents and produce employees for interviews. The guidance of an experienced sexual harassment lawyer is invaluable at this stage.
After a thorough investigation, the EEOC may decide to:
- Negotiate a settlement with you
- File a lawsuit
- Provide the employee with a “right to sue” letter, permitting a private right of action
Employment Law Litigation
An experienced sexual harassment lawyer can help protect your company by assisting in the creation of strong policies and procedures to defense against any actual claims filed. Give your business the best protection and planning — contact our firm to get started.