The Evolving Question of Sexual Harassment
The news surrounding Weinstein, Lauer, Rose, Franken, Conyers, and others has pushed sexual harassment to the forefront in recent months. Many mid and upper level managers are spending time reviewing their e-mail, text, and social media history and holding their breath while hoping not to be accused by an offended subordinate. Most offhanded or inappropriate remarks will never be an issue - but then some may.
Today is a good time to reexamine your personnel interaction policies, to take a closer look at what reporting mechanisms are established, and to consider supervisor and employee sexual harassment training.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature may constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. There are two types of sexual harassment: quid pro quo and hostile work environment. Quid pro quo harassment occurs when a managerial employee seeks sexual favors from a subordinate employee either in return for a job benefit (a promotion or raise) or to avoid a job detriment (a demotion or pay cut). An example of quid pro quo harassment may involve a male manager telegraphing to a female subordinate that she will be rewarded if she goes on a date with him. A hostile work environment involves harassment that is severe or pervasive sufficient to alter the conditions of employment such as creating an abusive environment. Examples of a hostile work environment may include turning work discussions into sexually suggestive topics or repeated requests for an out-of-the-office rendezvous.
Points to consider when reviewing a company’s sexual harassment policy should include the following:
The victim as well as the harasser may be a woman or a man.
The victim does not have to be of the opposite sex.
The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
The harasser's conduct must be unwelcome.
An employer may be held liable as a result of inappropriate managerial or non-managerial actions.
Remedies for sexual harassment may include civil or criminal prosecution. The company and/or the harasser, personally, may be subject to damage claims or charges which may or may not be insurable.
In addition to training, employers should have policies in place defining harassment, prohibiting harassment, and setting forth examples of harassment. These policies must be reviewed and reinforced with supervisors and employees. Employers also must take steps to encourage reporting of harassment. Employees should be directed to report complaints immediately to either the employee's direct supervisor or to Human Resources. Supervisors should report all employee complaints to Human Resources. Even employees who may not be the target of the harassment should be encouraged to report the harassment. Employers can even set up 1-800 numbers or other mechanisms that allow employees to report problematic behavior.
Sexual harassment lawsuits must satisfy certain specific criteria. Many are subject to summary dismissal as not every indiscretion constitutes a violation of the law. However, today this risk transcends the legal implications. Public pressure and ridicule may drive management to terminate the employment of perceived offenders short of a trial, short of any final judgment, and short of due process. In the real world, perception may dictate reality against the backdrop of current media hype. Now more than ever employers should reassess, from top to bottom, how issues of sexually inappropriate conduct are dealt with in the workplace.