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.
• Establish a reporting system, including multiple avenues
for affected employees to bring these issues to the