Over the past few months, we have heard about the #MeToo social media movement that brought to light the prevalence of sexual harassment and assault that occurs in the workplace. This movement was in response to the many stories regarding powerful and high-profile men making sexually inappropriate comments, groping and, in some cases, even sexually assaulting the women who worked for them.
While the media have exposed the sexual harassment that was occurring at high levels of Hollywood, we see that sexual harassment happens in all fields of work, including academia, government, manufacturing, legal and medical. The recent news has made many employees and employers ask themselves: What is sexual harassment and what should we be doing to protect ourselves?
Sexual harassment is a form of sex discrimination prohibited under Title VII of the Civil Rights Act of 1964. It comes in two forms: quid pro quo or hostile work environment. Quid pro quo is the Latin phrase that means “something for something.” Examples would be an employer expecting sexual favors in exchange for a promotion, raise or other work benefit.
While quid pro quo harassment does happen, it is more common for employees to file complaints based on a hostile work environment. This occurs when sexually inappropriate comments or conduct unreasonably interfere with an employee's work performance.
Conduct meeting the standard of a hostile work environment is no easy feat to prove. It is a legal standard that states 1. the conduct was unwelcome, 2. the harassment was sexual in nature, 3. the harassment was severe or pervasive, and 4. there was a basis for employer liability. Most arguments in court are about the third and fourth elements. The question becomes whether the comments or conduct are “severe” or “pervasive.” Usually, a one-time comment is not going to be pervasive, but weeks of inappropriate comments may be enough. An unusually severe incident of harassment standing alone may be enough to meet the standard.
An example of this would be a sexual assault. If the employee is able to show the conduct was severe or pervasive, then it goes to whether the employer is liable. Employers can be liable for the actions of their employees if the harassment was reported and the employer did not try to prevent the harassment or correct the harassing behavior. Ultimately, parties will get caught arguing the gray areas of the law, but there are some basics that both the employee and employer should know.
As an employee, if you believe you are being sexually harassed, you should use the appropriate channels to complain. If you want the inappropriate behavior or comments to stop, you have to take action. This may mean going to human resources or your immediate supervisor.
Please, if you have not done so, read your employee handbook and understand what the reporting steps are under your employer's harassment policy. Also, make sure to document and keep a record of alleged harassment as it happens.
Many times sexual harassment claims can be “he said, she said” situations. Most times if the employee does not complain, they will not succeed on the merits of their case.
As an employer, you should start revisiting your harassment policies and make sure they include necessary language such as the legal definition of harassment, examples of harassment, reporting and response steps, and multiple channels for employees to use to report harassment. Employers should take every complaint of sexual harassment seriously. This means investigating each complaint in a timely, thorough and impartial manner. Employers want to address inappropriate conduct or comments before they rise to the level of harassment. If harassment is proven, the employer needs to make sure the harassment ends and that they have taken steps to ensure it does not recur.
There is a cost to harassment, so employers should train their supervisors and employees on what sexual harassment is and how to report it.
Nikki Quintana is executive director of the Fort Wayne Metropolitan Human Relations Commission.