3.1 Sexual harassment

Sexual harassment in the workplace is a serious form of sex discrimination prohibited by employment laws. It encompasses two main categories: quid pro quo harassment, involving threats or promises tied to sexual conduct, and hostile work environment, where pervasive unwelcome behavior creates an intimidating atmosphere.

To establish a sexual harassment claim, plaintiffs must prove unwelcome conduct that's severe or pervasive and based on sex or gender. Employer liability varies depending on the harasser's relationship to the company. Prevention strategies include clear policies, regular training, and effective reporting procedures.

Types of sexual harassment

• Sexual harassment is a form of sex discrimination prohibited by employment laws
• Two main categories of sexual harassment recognized by the courts quid pro quo harassment and hostile work environment

Quid pro quo harassment

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• Occurs when an employee's submission to or rejection of unwelcome sexual conduct is used as the basis for employment decisions
• Involves an explicit or implicit threat or promise of job benefits or detriments (promotions, demotions, termination)
• Typically committed by someone with authority over the victim's employment (supervisor, manager)
• Single incident can constitute quid pro quo harassment

Hostile work environment

• Arises when unwelcome sexual conduct is severe or pervasive enough to create an intimidating, hostile, or offensive work environment
• Conduct must unreasonably interfere with an employee's work performance or alter the terms and conditions of employment
• Can be created by supervisors, coworkers, or non-employees (clients, customers, vendors)
• Considers the totality of the circumstances (frequency, severity, physically threatening or humiliating, unreasonably interferes with work)

Elements of a sexual harassment claim

• To establish a prima facie case of sexual harassment, a plaintiff must prove several elements
• The specific elements may vary depending on the type of harassment and jurisdiction

Unwelcome conduct

• The conduct must be unwelcome to the victim
• Determined by both subjective and objective standards (victim's perception and reasonable person standard)
• Includes verbal, visual, or physical conduct of a sexual nature (comments, jokes, gestures, touching, displaying explicit materials)
• Consensual relationships can become unwelcome over time

Severe or pervasive

• The conduct must be severe or pervasive enough to create a hostile work environment
• Severe conduct (sexual assault) may be sufficient even if isolated
• Pervasive conduct occurs frequently and regularly
• Factors considered frequency, severity, physically threatening or humiliating, unreasonable interference with work

Based on sex or gender

• The conduct must be based on the victim's sex or gender
• Includes conduct motivated by sexual desire, gender stereotypes, or general hostility towards a particular sex
• Same-sex harassment is actionable if based on sex or gender
• Need not be sexual in nature if motivated by sex or gender (non-sexual bullying or hazing)

Employer liability for sexual harassment

• Employers can be held liable for sexual harassment committed by supervisors, coworkers, or non-employees
• The standard for liability depends on the harasser's relationship to the employer and the employer's knowledge of the harassment

Harassment by supervisors

• Employers are strictly liable for quid pro quo harassment by supervisors
• For hostile work environment harassment, employers are vicariously liable subject to an affirmative defense (Faragher/Ellerth defense)
• Defense requires the employer to prove it exercised reasonable care to prevent and correct harassment and the employee unreasonably failed to take advantage of preventive or corrective opportunities

Harassment by coworkers

• Employers are liable for coworker harassment if they knew or should have known about the conduct and failed to take prompt and appropriate corrective action
• Constructive knowledge can be inferred from the pervasiveness of the harassment or other facts indicating awareness
• Corrective action should be reasonably calculated to end the harassment (discipline, training, monitoring)

Harassment by non-employees

• Employers can be liable for harassment by non-employees (clients, customers, vendors) over whom they have control
• Liability arises if the employer knew or should have known about the conduct and failed to take prompt and appropriate corrective action
• The extent of the employer's control and legal responsibility over the non-employee is considered

Preventing sexual harassment in the workplace

• Employers should take proactive steps to prevent sexual harassment from occurring
• Effective prevention measures can limit liability and foster a respectful work environment

Anti-harassment policies

• Employers should maintain written policies prohibiting sexual harassment
• Policies should define sexual harassment, provide examples, and state the consequences for violations
• Policies should be clearly communicated to all employees and regularly updated

Employee training

• Employers should provide regular training on sexual harassment prevention
• Training should educate employees on the types of conduct that constitute harassment, reporting procedures, and the employer's commitment to a harassment-free workplace
• Supervisors and managers should receive additional training on handling complaints and maintaining a respectful work environment

Reporting procedures

• Employers should establish clear and accessible procedures for reporting sexual harassment
• Multiple reporting channels should be available (HR, supervisors, hotline)
• Complaints should be promptly and thoroughly investigated by impartial and trained personnel
• Confidentiality should be maintained to the extent possible
• Employees should be protected from retaliation for reporting harassment or participating in investigations

Investigating sexual harassment complaints

• Prompt and thorough investigations are critical for addressing sexual harassment and limiting liability
• Investigations should be conducted by impartial and trained personnel

Prompt and thorough investigations

• Investigations should be initiated promptly upon receiving a complaint or becoming aware of potential harassment
• Investigators should interview the complainant, alleged harasser, and relevant witnesses
• Relevant documents and evidence should be reviewed (emails, texts, security footage)
• Investigations should be completed in a timely manner and findings communicated to the parties

Confidentiality considerations

• Investigators should maintain confidentiality to the extent possible
• Information should be shared only on a need-to-know basis
• Confidentiality may be limited by the need to conduct a thorough investigation or take appropriate corrective action
• Complainants should be informed of the limits of confidentiality

Documenting the investigation

• Investigators should carefully document all steps of the investigation
• Documentation should include interview notes, witness statements, evidence reviewed, and findings
• Documentation should be maintained in a secure and confidential manner
• Thorough documentation can support the employer's defense in case of legal action

Remedies for sexual harassment victims

• Victims of sexual harassment may be entitled to various remedies under employment laws
• The available remedies depend on the type of claim and jurisdiction

Injunctive relief

• Courts may order the employer to take specific actions to address the harassment (cease and desist orders)
• Injunctive relief can include reinstatement, promotion, or other changes to the victim's employment status
• Employers may be required to implement training, revise policies, or monitor the work environment

Compensatory damages

• Victims may recover compensatory damages for economic losses (back pay, front pay) and emotional distress
• Economic damages are based on actual losses incurred due to the harassment (lost wages, benefits)
• Emotional distress damages compensate for mental anguish, humiliation, and other non-economic harm
• Compensatory damages are subject to statutory caps based on the employer's size

Punitive damages

• In cases of egregious or malicious harassment, victims may be awarded punitive damages
• Punitive damages are intended to punish the employer and deter future misconduct
• Employers may be liable for punitive damages if they acted with reckless indifference to the victim's rights
• Punitive damages are subject to constitutional and statutory limitations

Retaliation against sexual harassment complainants

• Employment laws prohibit retaliation against employees who engage in protected activities related to sexual harassment
• Retaliation can be a separate violation even if the underlying harassment claim is not substantiated

Protected activities

• Making a good faith complaint of sexual harassment to the employer or a government agency
• Participating in a sexual harassment investigation or legal proceeding
• Opposing or refusing to participate in sexual harassment
• Requesting a reasonable accommodation related to sexual harassment (schedule change, transfer)

Adverse employment actions

• Retaliation involves taking an adverse employment action against an employee for engaging in a protected activity
• Adverse actions include termination, demotion, salary reduction, discipline, and other actions that would deter a reasonable employee from engaging in protected activity
• Adverse actions can also include threats, harassment, or other forms of intimidation

Causal connection

• To establish retaliation, there must be a causal connection between the protected activity and the adverse action
• Temporal proximity between the activity and adverse action can suggest causation
• Other evidence of retaliatory motive may include statements, differential treatment of similarly situated employees, or pretextual reasons for the adverse action
• But-for causation the protected activity must be the determining factor for the adverse action

Sexual harassment laws and regulations

• Sexual harassment is prohibited by various federal, state, and local laws and regulations
• These laws provide the legal framework for sexual harassment claims and employer obligations

Title VII of the Civil Rights Act

• Federal law that prohibits employment discrimination based on sex, race, color, national origin, and religion
• Applies to employers with 15 or more employees
• Enforced by the Equal Employment Opportunity Commission (EEOC)
• Requires exhaustion of administrative remedies before filing a lawsuit (EEOC charge)

State and local laws

• Many states and localities have their own anti-discrimination laws that prohibit sexual harassment
• Some state laws may apply to smaller employers or provide greater protections than federal law
• State laws may have different procedural requirements or remedies
• Some states require sexual harassment prevention training for employers of a certain size

EEOC guidelines

• The EEOC has issued guidelines on sexual harassment that interpret Title VII
• The guidelines define sexual harassment, describe employer liability standards, and recommend preventive measures
• The guidelines are not binding law but are given deference by courts
• The guidelines emphasize the importance of maintaining a harassment-free work environment and taking prompt corrective action in response to complaints