Workplace Harassment – Fundamentals and Beyond

Workplace Harassment

The past year has seen an explosion of harassment claims in the employment marketplace.  No business sector has been left untouched:  Hollywood, Las Vegas, Professional Sports, the Education Sector as well as well established businesses have all seen high profile, highly toxic revelations about misconduct in the workplace.  Commercial lawyers will tell you this is dangerous territory for a company.

A few examples stand out:

Hollywood: Hollywood, particularly the revelations about Harvey Weinstein has been the focal point for many of the claims.  Celebrity newscaster, journalists, movie makers, musicians and even chefs have all seen their share of upsetting revelations.  To name just a few: Matt Lauer, Ben Affleck, Dustin Hoffman, Geraldo Rivera, Steven Segal among many others.

Las Vegas:  The gaming industry has not been immune to its share of harassment claims, Steve Wynn, the CEO of Wynn Resorts and perhaps the most high profile figure in Las Vegas suddenly stepped down as Chairman and CEO after allegations surfaced chronicling a years-long pattern of abuse.

Sports:  The University of Arizona fired coach Rich Rodriguez after sexual misconduct allegations.

Automotive: Raj Nair – Ford’s president was ousted for unspecified inappropriate behavior.

Politics:  The number of offenders in this category are almost too numerous to mention, but a few names of those accused of misconduct are: Bill Clinton, Senator Al Franken and Judge Roy Moore.

Unfortunately, the phrase sexual harassment has been so co-opted into our modern vocabulary that it sometimes leads to erroneous idea of what “sexual harassment” actually is.  To clear things up, let’s go straight to the law, Title VII of the Civil Rights Act of 1964:

Prohibits: Harassment and discrimination based on sex.

Sex = sexual harassment, gender discrimination and sexual orientation.  All forms of harassment are prohibited under Title VII, including: race, color, religion, national origin as well as related laws such as the ADEA (Age  Discrimination in Employment Act), the ADAAA (Americans with Disabilities Amendment Act) and pregnancy (covered under the PDA – the pregnancy discrimination act).

Let’s put this in words that everyone can understand:  Sexual harassment is:

UNWANTED sexual advances, requests for sexual favors, verbal, graphic or physical conduct of a sexual nature, or the display of sexual material, that is SEVERE and PERVASIVE.

But who’s opinion counts in this test?  The person being harassed or the person doing the harassing?  What may be offensive to some is not to others.  Typically, the courts employ a “reasonable person” standard such that if a reasonable person would feel the behavior was unwanted and offensive that objectively, the behavior was contrary to the law.

And another point is important to make: intent does not matter.  Remember the reasonable person standard, if a reasonable person would feel harassed then it counts.

But remember, not everything is illegal, Title VII isn’t a law that says everyone must be nice to each other, there is plenty of bad behavior that doesn’t rise to the level of harassment, and is not pervasive of severe.

There are two types of sexual harassment and you need to decide which category (or both) you might fall under.  First, there is a “Hostile Work Environment”.  This is a situation where the harassing behavior affects the terms and conditions of your employment.  There is also a “Quid Pro Quo” type of claim which literally means this for that.  Quid Pro Quo involves a benefit in exchange for and intimate relationship or act, or a punishment or other detriment for refusing.

Certain types of risky behavior are important to watch out for:

Jokes

Offensive comments about appearance

Touching

Asking / Discussing sex life

Flirtation

Silent treatment

Inconsistent treatment

Personal texts

And excuses that have worked in the past are no longer acceptable:

“It was a party, after hours”

“I was drinking”

“It’s not illegal”

“She never complained before”

“The statute of limitations has run”

So, if you are an employee and feel like you’re being harassed, what is your responsibility?  First, if you’re participating in the behavior, even if you do not want to participate, stop immediately.  Second, report the harassment if you experience it, observe it, or learn of it.  Third, say something.  You  need to complain to your company management or someone in authority.  It is illegal (and will enhance your claim) if your employer retaliates in any way when you complain, even if they think your claim may have no merit.

Sexual harassment is not just damaging and demoralizing for the victim, it is also destructive to company culture.  It inspires a culture of fear, rationalization, and lack of accountability.

If you feel like you have been the victim of sexual harassment speak up, seek support from others, and work toward a resolution with your employer.