SEXUAL HARASSMENT

Quid Pro Quo

This is a latin terms which in essence means “something for something.” In the context of sexual harassment, quid pro quo generally means that a person with authority (supervisor, manager, owner, etc.) demands sexual favors from a subordinate employee in exchange for a better job, promotion or some other benefit of employment. While this might be the strongest form of sexual harassment, it is also the rarest. Once determined that quid pro quo sexual harassment occurred, the employer is automatically liable. This means that there is no defense which an employer can raise as why or how quid pro quo sexual harassment occurred.

Hostile Work Environment

Hostile work environment sexual harassment is unwelcome conduct of a sexual nature that is both severe and pervasive and affects working conditions of the aggrieved employee. Stated another way, a hostile work environment occurs when a person with authority or a co-worker engages in unwelcome and inappropriate sexual behavior which renders the atmosphere of the aggrieved employee’s workplace hostile, intimidating or offensive. A number of factors which are considered by a court in determining if hostile work environment sexual harassment occurred are, frequency of the offensive conduct, severity of that conduct, whether it is physically threatening or humiliating or a mere offensive uttererance, and whether it unreasonably interferes with an employee’s work performance.

Person of Authority

If the perpetrator of the sexual harassment is a person of authority (supervisor, manager, owner, etc.), the employer will be considered automatically liable, i.e., no defenses are available. If, however, the perpetrator of the sexual harassment is a co-worker, the employer can eliminate or limit its liability to the victim of the sexual harassment if the employer can demonstrate that it, maintains and has distributed sexual harassment policies and procedures to all of its employees, follows its own policies of sexual harassment when a complaint is made, and in response to a complaint of sexual harassment, investigates and takes prompt, remedial measures.

Co-worker to Co-worker

In co-worker to co-worker sexual harassment, an employee can establish liability against the employer if the employer knew or should have known of the harassing behavior and the employer failed to take appropriate, corrective action.

Stop Sexual Harassment

The most effective way for an employee to stop sexual harassment is to place the employer on notice that the harassment has occurred. If the employer can establish lack of knowledge, that presents a factual dispute on which the employee may or may not have success. While other forms of communication are also effective, in today’s day and age of email, the most effective way to provide notice to an employer is via email as proof can be established, if necessary, that a complaint was provided. It is all too easy for an employer to claim an employee never informed the employer of the unwelcome conduct if it was only done verbally. For this reason, an employee should always try to put a complaint in writing. If a policy and procedure of complaining about sexual harassment exists, the employee should follow it. Informing an unrelated co-worker about what occurred is usually not enough, as that does not place the employer on notice. Generally, an employee must inform his/her supervisor or someone in human resources. If, in a more difficult case, a human resource department does not exist and the employee’s supervisor is the perpetrator of the sexual harassment, then the employee should inform a higher or different supervisor or an owner. If, in the most extreme case, the employee’s boss is the sexual harassment perpetrator and also the owner, there is no other supervisor and a human resource department does not exist, then it really would not matter as that is clearly not co-worker to co-worker sexual harassment. In that extreme case, the employer is strictly liable and does not have a defense (other than to say the harassment did not occur).

Sexual harassment continues to occur because employers do not learn, do not adequately train their supervisors and managers and, as the saying goes, “boys will always be boys.” While sexual harassment could occur from a female supervisor towards a male subordinate, a female supervisor towards a female subordinate or a male supervisor towards a male subordinate, the typical case is generally a male supervisor towards a female subordinate. Supervisors, managers and owners of businesses oftentimes perceive themselves as having a sense of entitlement. When that sense of entitlement creeps its way into physical attraction at the office by a supervisor towards a subordinate, that is generally when sexual harassment originates. It may also occur if off-color jokes, other vulgarities, etc., are being done in the presence of a female subordinate in a heavily male-dominated office, wherein the employee is caused to feel uncomfortable and it continues over her objections. Of course, it is very possible unearthed feelings or attraction towards another employee are suddenly communicated, broadcasted or acted upon, without notice. This generally occurs when office personalities are mixed with the presence of alcohol. I wrote a published article about this very issue. It is called “Don’t be Singing the Blues this Holiday Season, and Don’t be Serving Alcohol at your Business Holiday Parties.”

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