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Legal Watch

Sexual Harassment: Has Anything Really Changed?

The underpinnings of workplace sexual harassment have not changed since the dawning of civilization. However, one additional area of risk that has grown substantially over the past several decades are office romances. Overlaying these relationships are both sexual harassment laws and numerous potential problems for employers: productivity deficiencies, conflicts-of-interest issues, co-worker dissatisfaction, adverse impacts on morale, favoritism, legal liability for superior/subordinate relationships and hostile work environments that can directly and indirectly affect the workforce.

What is an employer to do? Given the pervasive spread of recent allegations of sexual harassment from Hollywood to Washington, it seems warranted to revisit sexual harassment laws, best practices for employers, and a more recent approach to office romances.

Sexual Harassment Laws

Federal, state and local (municipal) law govern sexual harassment liability in most jurisdictions. There are two main categories of sexual harassment claims: quid pro quo (this for that) and hostile work environment. The former occurs where unwelcomed sexual conduct is either an explicit or implicit term or condition of employment, such as offering better work for sexual favors (e.g., the recent Weinstein scandal), and arises where there is a dominate party relative to a subordinate party, such as supervisor to subordinate. The latter (hostile work environment) occurs when unwelcomed sexual conduct (e.g., comments, touching, jokes, etc.) unreasonably interferes with an individual’s work performance or is sufficiently severe to create an intimidating, hostile or offensive work environment.

At the federal level, employers are vicariously liable for claims of quid pro quo harassment; there is little an employer can do to defend against such claims. If the harasser is not a supervisor, then the employer will not be liable for harassment unless the employer is negligent —

meaning it did not prevent the harassment. On the other
hand, if an employer has proper policies and procedures
in place for reporting and addressing claims of sexual
harassment, it may well have a defense against a hostile
environment claim.

Best Practices — A Primer To
Insulation From Liability

The following are several key steps all employers should implement:

• Establish, disseminate and require employees to acknowledge a strong, legally compliant anti-harassment policy — essentially banning any form of sexual (or any other form of) harassment (e.g., harassment based on race, religion, sexual orientation, etc.)

• Ensure that employees understand what exactly sexual harassment is, what the employer’s policy is and how to handle these issues in the work place. Provide all staff with anti-harassment training, which is invaluable on all levels.