A Primer for Employers: Recognizing and Stopping Sexual Harassment in the Workplace

Most employers know that both federal and state law prohibit discrimination against persons on the basis of or on account of their gender.  This is called sex discrimination, and is expressly prohibited by Title VII of the Civil Rights Act of 1964, as amended, and various state anti-discrimination laws such as the Florida Civil Rights Act, which covers employees and employers in Florida.  The protections of Title VII mean that an employer cannot discriminate against an individual based upon the individual’s gender (or race, color, national origin or religion) when it comes to decisions affecting hiring, firing, compensation and all terms, conditions and privileges of employment.

But what is sexual harassment?

Sexual harassment is a type of sex discrimination that courts have consistently found to violate both federal and state anti-discrimination laws. There is no one specific definition of what behavior constitutes “sexual harassment”, and indeed, courts have found that a broad spectrum of behavior may constitute sexual harassment.  Moreover, both men and women may be victims of sexual harassment, and the perpetrator of the harassment may be of the same or opposite sex.  Courts have found that the perpetrator may be a supervisor, a co-worker, or even a non-employee. While the precise definition and criteria that constitutes sexual harassment may appear to be elusive and somewhat broad, to be considered sexual harassment under the law, the perpetrator’s conduct must include the following key elements.

1. The conduct must involve either unwanted sexual advances or some other unwelcome conduct (for example, demands for sexual favors or unsolicited physical touching) which results because of the gender of the victim.
2. The conduct must either: result in a “tangible personnel action” (i.e., one of the following, in retaliation for the employee’s refusal to acquiesce in or submit to the unwelcome conduct: a hiring, firing, non-promotion, demotion, reassignment to an undesirable position, or change in in pay or benefits), or, if there is no tangible personnel action, the conduct must be so severe or pervasive that it changed the victim’s working conditions, making it, in effect, a hostile work environment.

There has been substantial litigation over what does and does not constitute sexual harassment and a sexually hostile work environment, but one thing is clear from the vast number of decisions–only behavior that meets these two elements can establish a viable legal claim of sexual harassment.

Keys to Eliminating Sexual Harassment

Given the nature and dynamic of human interaction, it is likely impossible to eliminate all workplace harassment.  However, the following steps can help employers send a message to their workers that sexual harassment will not be tolerated, and by doing so, greatly reduce the risks of sexual harassment occurring in their workplace.

Employers should:

1. Make sure that employees are properly trained to ensure that they understand what conduct constitutes sexual harassment. Employees who are informed will be more likely to conduct themselves appropriately in the workplace and will be far more likely to approach the employer to report workplace harassment.
2. Develop and implement clear, concise policies and procedures that regulate what employees should do if they experience or observe harassment as well as what actions the employer must take when it becomes aware of harassment. Many employees who are harassed at work or observe harassment of fellow employees do not report it because they do not know what to do when they encounter it, how the employer will react, or what repercussions the employee might face for reporting the harassment.   Having clear instruction and resources in place will not only allay employees’ fears about coming forward to report sexual harassment, but could potentially save the employer from being caught unaware of unreported harassment, as well as potential costly litigation.
3. Consistently apply policies and procedures when harassment is identified or reported. One of the main reasons employees do not report harassment is the fear of retaliation by the employer. Employees fear that, instead of investigating and remedying the reported harassment, employers will take some form of adverse personnel action against the person reporting the harassment, such as demotion, a change in pay, reassignment, or even termination.  Employers should be aware that retaliation is a separate legal claim under the anti-discrimination statutes such as Title VII, and carries with it its own set of potentially very costly remedies.  An employee who reports harassment or discrimination does not have to be the alleged victim of discrimination in order to be retaliated against by the employer.  Therefore, the employer must ensure that an employee who reports harassment will not face retaliation.

Should you have any questions concerning sexual discrimination or sexual harassment in the workplace, or other questions concerning your obligations under the anti-discrimination or anti-retaliation laws, please feel free to contact Widerman Malek, PL for a consultation.

Widerman Malek counsels clients on all types of general employment matters that employers face, including: wage and hour disputes under the Fair Labor Standards Act (minimum wage and overtime pay), vacation pay, sick leave and associated employee benefits, Equal Pay Act, employee terminations, severance pay,  employment discrimination and sexual harassment claims; reduction-in-force and plant closing notification laws (WARN Act); covenants not to compete, non-disclosure agreements, non-solicitation agreements, confidentiality agreements, employee handbooks; and other employment issues that employers can expect to encounter.