Sexual harassment in the workplace is illegal, but that was not always the case. In the late 1970s, the judicial system began to provide meaningful remedies for those who were subjected to unwelcome sexual pressures or conditions related to their jobs.
Today, though sexual harassment’s prevalence seems to have diminished, it has not been eliminated. There are still piggish bosses and boorish co-workers.
The Equal Employment Opportunity Commission defines sexual harassment as: “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature … when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”
This definition has resulted in the creation of what are commonly referred to as “quid pro quo” sexual harassment and “hostile work environment” sexual harassment.
The quid pro quo type of harassment implies a request for sexual favors that is unwelcome and is either granted or denied. If denied, quid pro quo also implies some type of retaliatory action because of the denial.
In hostile work environment sexual harassment, off-color jokes, sexual comments, unwanted touching, requests for dates and lewd pictures have all been depicted as possibly making up a hostile work environment.
The Supreme Court has held that all of these actions can constitute a hostile work environment as long as the offensive and sexual behavior is severe and pervasive. So, a one-time comment or request for a date might not be enough to establish hostile work environment sexual harassment. But, if the request for a date is rejected and then followed by an adverse job consequence, quid pro quo sexual harassment may have occurred.
If a boss has a sexual relationship with a willing subordinate, this is not necessarily sexual harassment, although just because a subordinate is “willing” does not mean the sexual activity with the boss is welcome. Assuming that the sexual activity is welcome, the supervisor is not off the hook because other employees may consider the boss’s paramour to be receiving special favors because of the sexual relationship. In such a case, the other employees, who have not been sexually harassed, may still have a claim for gender discrimination.
In any event, willing and consensual sexual relationships with subordinates are never a good idea. This is true not only because others may complain about unfair treatment, but also because the relationship may sour and the boss may then be subjected to a claim that the relationship was coerced and unwelcome, although it may have appeared for a time to be willing and consensual.
Victims may be men or women. Sexual harassment can occur even when the victim and the harasser are the same sex so long as the victim can show that he or she is being harassed because of his or her sex.
Because of the 1998 Supreme Court decision in Faragher v. Boca Raton, employers have taken steps to reduce their liability for sexual harassment by establishing policies to prevent sexual harassment.
The employer must have a legitimate complaint and anti-retaliation system. Employees must be encouraged to file complaints if they are victimized. Potential victims must receive meaningful assurances of no retaliation, and the investigation of the complaint must be prompt and thorough. These steps might relieve an employer of liability even when the organization has employed a supervisor who is guilty of sexual harassment.
Managers who are accused of sexual harassment may find themselves detailed for the period of the investigation, even for a complaint that is found to be unfounded. Higher-level managers must pursue all complaints of sexual harassment, even if the victim is just venting and does not want to file a complaint.
These are the basics. They can be summarized for managers: Do not touch subordinates. Do not ask a subordinate out on a date. Do not tell off-color or sexual jokes. Investigate allegations concerning subordinates. Remember that sexual harassment is a serious and potentially career-ending offense.
Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.
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