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EMPLOYMENT LAW: SEXUAL HARASSMENT IN THE WORK PLACE

I. Introduction

"I was just kidding and she was laughing too." We are all too familiar with this scenario - a simple joke, gesture, or nudge all in the innocence of fun. But is it simple, innocent or fun? The U.S. Department of Labor estimates that American businesses lose over $1 billion annually in absenteeism, low morale, and employee replacement costs due to sexual harassment. It is even more alarming to note that this figure does not include judgments or settlements in civil court cases.

There has been an explosion in sexual harassment civil court cases in recent years. Women are no longer sitting back and "bearing" the sexual harassment. Instead, they are coming forward and reporting the harassment. Employers must now educate themselves and their employees on how to prevent sexual harassment in the work place. This article examines sexual harassment from both the employer's and employee's perspectives.

II. What is Sexual Harassment?

Sexual harassment is defined as the unwelcomed verbal or physical conduct or communication of a sexual nature, including sexual advances and requests for sexual favors. The harassment however does not necessarily always have to include sexual overtones, for example, intimidation and sexual hostility towards women because of their sex is a form of sexual harassment. Sexual harassment typically involves more than one isolated incident of unwelcomed conduct or communication. To prove that the harassment was "unwelcomed", the employee must show that she did not solicit or invite the sexual harassment and that the harassment was offensive or undesirable to her. Sexual conduct which was initially welcomed may still be actionable in situations where the harassed employee is retaliated against for refusing the once welcomed sexual conduct.

There are two types of sexual harassment: (1) quid pro quo, meaning "something for something"; and (2) hostile work environment. Typically in quid pro quo lawsuits, the harassment is by a supervisor or manager, and the conduct involves actual physical contact. Quid pro quo sexual harassment occurs whenever an individual explicitly or implicitly conditions a job, job benefit, or the absence of a job detriment, upon an employee's acceptance of the sexual conduct. Hostile work environment harassment encompasses a much broader range of conduct. For hostile work environment harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the employment and create an abusive work environment. The conduct frequently involved in hostile work environment harassment is sexual advances, requests for sexual favors, dirty pictures, dirty jokes, etc. Courts typically require multiple offensive incidents before an employee will prevail in a hostile work environment lawsuit.

III. Examples of What is and is not Sexual Harassment

The following fact scenarios were found to be sexual harassment:

  1. Where pornographic magazines, pictures and calendars were displayed in the work place, the female employee was offensively touched by another employee and offensive sexual comments were made to and about her.
  2. Where the male coworker performed the following conduct over a period of time: he put his hands on the female employee's hips and said "umm . . . I'd like to have some of that . . ."; he shot the employee in the hip with several rubber bands; he hiked his pants so that the outline of his genitals were visible; he passed obscene cartoons around the office; and he whacked the employee on her hip with a clip-board.
  3. Where the supervisor grabbed a female employee, tried to kiss her, rubbed his body across hers, exposed himself to her and made sexual comments to and about her.
  4. Where the owner of company subjected a female employee to repeated sexual comments, sexual inquiries and demonstrated sexual devices in the workplace.
  5. Where the secretary to general manager of truck distributor was repeatedly subjected the unwelcome sexual comments, contact and offers to "impregnate" her.
  6. Where the male supervisor made explicit sexually-oriented comments, proposals, and gestures to a female employee, discussed his own sex life and inquired into the female employee's sex life over a nine month period.
  7. Where the male CEO subjected a female employee to derogatory comments and shot at her with a peashooter.
  8. Where a female employee was subjected to sexual comments, propositions, and offensive touching, including being placed in a shrink-wrap machine and wrapped in cellophane by male coworkers.

Conversely, the following fact scenarios were found to not be sexual harassment:

  1. Where the male supervisor propositioned a female employee. This was a single incident.
  2. Where the female employee also participated in the sexual language by using crude and vulgar language. She also failed to report the harassment to anyone.
  3. Where a coworker commented that the female employee "screwed around" with her supervisor; that she was probably pregnant; and that "he heard that coffee induced sexual arousal" and he wanted to know if the female employee had been drinking coffee because he was coming over to her office.
  4. Where a male coworker, in one single incident, repeatedly called a female coworker a "f------- white wh---." The single incident lasted no more than 15 minutes, and consisted entirely of verbal harassment. (5) Where a female employee was subjected to occasional crude comments and explicit photographs by her store manager.

It is difficult to draw a line and state what is and what is not sexual harassment. Sexual harassment lawsuits must be examined on a case-by-case basis to determine whether the totality of all the facts and circumstances of the incident constitute as sexual harassment.

IV. Employee's Perspective

It is important that employees immediately report sexual harassment to their employers. Failure to report the harassment or delay in reporting the harassment substantially weakens a sexual harassment lawsuit against the employer. In fact, one court held that the employer was not liable because the employee never informed the employer of such incidences and the evidence failed to establish that the employer had knowledge of the conduct. An exception to this is where the employer knew or should have known of the harassment. In this instance, the employer has a duty to investigate and is not released from liability when an employee fails to report the harassment. However, it is in the best interest of the employee to promptly report any harassment to her employer.

In addition to promptly reporting the harassment to the employer, employees should document the sexual harassment. This can be done by writing a letter to the employer identifying the harasser, the dates of harassment, and a description of the type of harassing conduct. This letter should be very detailed. As time goes by, one tends to not remember all of the particular facts of an incident or incidences. The employee can avoid this problem by promptly detailing the incident in a letter to the employer. Employees can also document the sexual harassment by discussing the harassment with their coworkers and colleagues. Written statements from other employees who witnessed the harassment or who were also harassed themselves are helpful, but not necessary. Employers may have already talked with the employees or obtained statements. Employees should also prepare a chronology of events, identifying every incident of the harassing conduct, the dates of the harassment, the dates reported to the employer, and the action taken by the employer. It is important to document the remedial actions taken by the employer, if any. Employers are given an opportunity to promptly investigate and remedy the harassing conduct. Employers who fail to act or who do not act in a timely manner may be liable to the harassed employee.

V. Employer's Perspective

Employers have a duty to protect their employees from harassment. Employers are responsible for the acts of their supervisors, managers, and employees if it knew or in the exercise of reasonable care should have known of the harassment and failed to take timely and appropriate action. Timely and appropriate action by the employer is crucial. Courts have held that five days to investigate a complaint of sexual assault is too long. Employers who promptly suspend and terminate the harassing employee will probably not be liable to the harassed employee. One court recently found an employer not liable for a supervisor's rape of one of its employees because the employer took prompt remedial action against the supervisor. Employers are strictly liable when a management member (i.e. owner, officer, director) is the harasser. This is substantially different from an employer's liability for harassment of an employee by another co-employee. Employers will typically get "one free bite" from liability on coworker harassment only if the employer had no reason to know of the harassment. Employers may also be liable if they fail to adequately discipline the harasser. The discipline or punishment must be appropriate to the conduct. A mere reprimand is insufficient discipline for serious conduct and will subject the employer to liability.

An employer can minimize the number of sexual harassment claims by taking preventative measures and recognizing problem situations early on. The first preventative measure should be to draft and publicize an anti-sexual harassment policy. The sexual harassment policy should define sexual harassment, encourage employees to report sexual harassment and outline the procedure for reporting such conduct. The policy should also address what an employee should do when she is being harassed by her supervisor. This policy should be circulated to all employees and posted in a conspicuous area. The second preventative measure is for employers to implement a procedure for employees to report sexual harassment complaints. Employers should make sure that their employees understand the reporting procedure and that this procedure is followed through by the employer. Employers should also have an outline or checklist on investigating sexual harassment complaints to ensure that the complaints are properly being investigated.

Employer's should not shrug off rumors regarding the conduct of a particular coworker or supervisor, without further inquiry. Employer's should privately meet with the employees and investigate into the rumors. If an employee passes around sexually explicit materials, or touches employees in an offensive manner, the employer should not wait for a formal complaint. The employer should immediately investigate to determine what conduct is occurring; discipline the employee engaging in the inappropriate conduct; and inform all harassed employees of the remedial actions taken. By taking prompt remedial action, employers limit their liability and reduce the number of sexual harassment incidences in its work place.

VI. Conclusion

Each complaint of sexual harassment is unique and must be examined on a base-by-case basis. Sexual harassment typically involves more than one single incident. Employers and employees must work together in promptly reporting and investigating sexual harassment complaint. The creation of this teamwork is a safer and more pleasant work environment.

Michelle Donarski is an attorney with the law firm of Anderson & Bottrell, State Bank Center, Suite 202, 3100 13th Avenue SW, Fargo, ND 58103 (701) 235-3300.