In recent months, sexual harassment in the workplace has become a focal issue, with new headlines popping up seemingly every day regarding a Hollywood mogul or elected official being accused of sexual harassment. Although sexual harassment has always been an important issue in the workplace, the recent heightened publicity has caused employers to stop and rethink their policies on the subject. Employers also should expect a rise in claims of sexual harassment as employees feel more comfortable reporting inappropriate conduct.
What is sexual harassment and how can an employer recognize it? Workplace sexual harassment generally falls within one of two categories: quid pro quo harassment and hostile work environment harassment. Quid pro quo (“this for that”) harassment is relatively easy to identify, as it occurs when an employment decision or treatment of an employee is based on the employee’s submission or rejection of unwelcome sexual advances or requests for sexual favors. For example, an employer who fires an employee for refusing to go on a date with him has engaged in quid pro quo harassment.
Hostile work environment harassment, on the other hand, can be more difficult to recognize. Employers and employees alike often find it difficult to know when conduct has crossed the line between commonplace workplace behavior and unlawful sexual harassment. Sexual harassment can include any kind of unwelcome sexual conduct, including unwelcome sexual advances; requests for sexual favors; or other verbal, physical or visual conduct of a sexual nature. Examples of behavior that can constitute sexual harassment include discussing sexual activities, using demeaning terms, displaying sexually suggestive material, making sexually offensive jokes and commenting on physical attributes.
In order to constitute unlawful harassment, the unwelcome conduct must be both subjectively and objectively offensive. Subjectively offensive means the person affected by the harassment must personally find the conduct abusive and unwelcome. To be objectively offensive, the conduct must be “severe” or “pervasive” such that a reasonable person would find it hostile or abusive. Whether conduct is “severe” or “pervasive” is determined on a case-by-case basis but, generally, a sliding scale approach is taken. For example, conduct that is severe (such as a sexual assault) would constitute sexual harassment, but conduct that is less severe (telling inappropriate jokes to a co-worker) would have to be more pervasive in order to constitute unlawful harassment.
One question that frequently comes up is whether inappropriate conduct that occurs outside the workplace can be sexual harassment. The answer is yes. An incident that occurs at a bar or restaurant after work, such as one employee trying to kiss a co-worker, does not stay out of the workplace. The marketing phrase from a few years ago — “What happens in Vegas, stays in Vegas” — does not apply to sexual harassment claims. It is not a defense for an employer to state that the improper conduct occurred outside of the workplace and therefore does not constitute sexual harassment.
Once an employer is able to recognize sexual harassment, what can the employer do to prevent it from occurring? The most important step an employer can take is to have a sexual harassment policy in place that makes the employer’s expectations clear to everyone in the workplace. Employers should also conduct in-person sexual harassment training seminars to ensure their employees understand what is and isn’t sexual harassment, are aware of the employer’s expectations, and understand the negative consequences associated with engaging in harassing behavior.
A well-written sexual harassment policy will have clear reporting and investigative procedures in place to ensure employees report instances of sexual harassment and employers properly investigate them. A policy also should identify at least two different reporting avenues so an employee may choose the option that makes the employee feel most comfortable. This avoids a situation in which the company representative who is supposed to receive the report of sexual harassment may also be considered or named as the alleged harasser, which compromises the effectiveness of the policy. Employers also should make sure that any sexual harassment policy is consistently enforced. When a sexual harassment complaint is made, the employer should take prompt action to conduct an impartial investigation to make sure the harassment conduct no longer continues.
If employers take these steps — draft a good policy, which they enforce, and train employees on the policy — employers may have a defense to a claim of sexual harassment they would not otherwise have. These steps also will reduce the incidences of workplace sexual harassment because employees better understand what is sexual harassment and the negative work consequences that will result from engaging in harassing behavior.
Jessica Post is a director in the Phoenix office of Fennemore Craig. Post practices in the areas of labor and employment, and complex business litigation. She assists companies in employment discrimination, wage and hour, restrictive covenant and trade theft matters.
Dena Sanders is an attorney in the Phoenix office of Fennemore Craig. She focuses her practice in labor and employment, business litigation and natural resources law.