In the workplace, you as the employer need to be able to spot unlawful sexual harassment. When a supervisor or co-worker harasses an applicant or an employee about that person’s sex, it can subject you, as the victim’s employer, to legal liability.
Recognizing Sexual Harassment
You must be able to identify sexual harassment activity so you can guard against it and take action when it occurs. Sexual harassment usually takes one of two forms:
1. Quid Pro Quo Harassment
In this form of sexual harassment, a person in authority, usually a supervisor, requires that a subordinate employee tolerate sexual harassment as a condition of getting or keeping a job or job benefit. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. In this case, a single instance of harassment is sufficient to sustain a quid pro quo claim.
2. Hostile Work Environment
Multiple incidents can form a pattern of harassment. A pattern of harassment will escalate the seriousness of the harassment and can render the workplace a hostile work environment. The incidents may include offensive remarks about a person’s sex, such as offensive comments about women, men, or other characteristics in general. The comments or actions do not have to be overtly sexual in nature. A hostile work environment can result in liability to the employer when the conduct is unwelcome, based on sex, and severe or pervasive enough to create an abusive or offensive working environment.
Mere teasing, or occasional offhand comments, or isolated incidents that are not very serious are not illegal. However, when this conduct occurs frequently, or it is harsh and relentless to cause discomfort, or when the conduct results in an adverse employment decision (such as the victim being demoted), the conduct has crossed the line. It has become illegal sexual harassment.
Liability Can Attach to the Employer
First, be aware that the employer’s liability is not based on the gender of the harasser or the victim. Harassment can be committed by a male or a female, and the victim can be either male or female. The victim and the harasser can be the same gender.
The employer can be liable for an employee’s harassment if 1) the victim subjectively believed the conduct was hostile, abusive, or offensive; and 2) a reasonable person in the victim’s position would objectively believe the conduct was hostile, abusive, or offensive. Employers should be vigilant about addressing these incidents when they arise because a court can order the employer to pay compensatory (monetary loss, pain and suffering) and punitive damages.
Employer liability can arise whenever the harassment occurs in the workplace. For example, the harasser can be the victim’s direct supervisor, another supervisor with no direct authority over the victim, a co-worker, or even one of your clients or customers.
Responsibilities of the Employer
As an employer, you have the legal obligation to correct and prevent sexual harassment in the workplace. You may not know about it until after it has occurred. Here are the steps you need to take if you learn that sexual harassment is occurring or has occurred:
Investigate the circumstances around the allegation quickly and carefully. You can do an internal investigation or bring in a third party to do it.
- The investigation usually requires that you interview the person complaining, the person accused, and any witnesses.
- Ask questions designed to evaluate the seriousness of the allegation, ascertain whether the victim felt threatened or humiliated, whether the behavior interfered with the employee’s work, and whether the victim felt a job opportunity was at risk.
- It is appropriate to allow the victim to remain anonymous.
- Review employee files to determine if other complaints have been recorded involving the same employees or any other employees. You need to know if the complaint or allegation is an isolated incident or whether a pattern of behavior exists.
Reassign the alleged harasser or put the employee on leave during the investigation. By no means let the harasser supervise any employee who alleged harassment.
Take Prompt Remedial Action
If the investigation shows the allegation is valid, you must take prompt remedial action against the harasser(s). If the conduct is not severe enough to warrant firing the harasser(s), you should impose a lesser punishment such as suspension and training.
On the other hand, if your investigation shows the inappropriate behavior was either frequent or severe, you need to terminate the offender(s) immediately.
Make sure there is no retaliation against the accuser by management, the harasser(s), or any other employees.
Best Ways to Prevent Sexual Harassment in the Workplace
As an employer, you can and should take steps to prevent or minimize incidents of sexual harassment in the workplace. Here are some effective ways you can do that:
Provide Sexual Harassment Training for All Employees
One of the best investments you can make in protecting yourself and your employees is to provide training for all executives, managers, and non-supervisory employees. Make it mandatory.
Foster a Professional Environment
Foster an environment that does not tolerate anything less than professionalism from all employees. Sexual harassment is not professional. It creates serious liability for the employer and can damage the company brand if the company develops a reputation for condoning it. It simply cannot be tolerated from any employee, even the higher performing employees.
Adopt a Written Zero Tolerance Policy
Have a clear, written, zero tolerance company policy forbidding sexual harassment. Include examples of what constitutes unacceptable physical conduct, such as unwelcome touching, hugging, kissing, groping, gestures, sexual jokes, emails, cartoons, pictures, and propositions to engage in sexual favors or demands to engage in intimate relationships. Make clear that employees who commit sexual harassment will be disciplined, and possibly terminated.
Provide a Reporting Mechanism
Encourage people to report sexual harassment when they observe it. Provide a reporting mechanism that offers more than one reporting channel if an employee experiences it or witnesses it.
Speak to the Labor and Employment Attorneys at KPPB LAW
Employers need to be diligent in guarding against sexual harassment in the workplace and nipping it in the bud when it happens. Make sure you are doing everything you can to protect your company from liability and speak to the labor & employment attorneys at KPPB LAW for more information.