Sexual Harassment And The Law

What is sexual harassment?

Sexual harassment includes unwanted sexual advances, requests for sexual favors and other sexual conduct of a verbal, physical or visual nature, when submission to, or rejection of such conduct is made as the basis of an employment decision, or when it proves intimidating to an employee and is unwelcome. There are two different types of sexual harassment and that's quid pro quo harassment, and hostile work environment harassment. Quid pro quo harassment literally translates to this for that. If you do this sexual favor for me I will do something for you, or I will give you a promotion. Or, I will not do something for you, I will give you a demotion, or you will not be entitled to a promotion. A hostile work environment is based on a series of factors, including such things as whether or not the conduct is severe and pervasive, and how often it occurs.

Who is covered by federal sexual harassment law?

Federal sexual harassment law covers employers with at least 15 employees. States have separate requirements, and you would want to check with your local council or administrative agency to determine what the laws of your particular state are.

When an employee engages in 'quid pro quo' conduct against another employee, is it automatically considered sexual harassment?

If an employer, or a person who is acting as an agent of an employer, has the ability to affect the terms or conditions of an employees position, and they use that authority to require something in exchange - some sexual conduct or behavior in exchange for a promotion or in exchange for a position - then that will likely be deemed sexual harassment.

Are employers liable for harassment by supervisors?

Generally, employers are going to be liable for harassment by supervisors, but it also depends upon the employers knowledge when we're talking about federal law. The federal law will hold an employer liable for the acts of its managers if it is quid pro quo harassment. However, if it is non quid pro quo harassment, and it is hostile work environment harassment, then an employer will be held liable if that employer knew or should have known, and failed to take corrective action. States may have more specific and restrictive requirements. In California, for example, an employer will be held liable for the acts of its managers irrespective of whether or not it was aware that the harassment was taking place.

Does every employer need to have an anti-harassment policy?

Certainly, it's good practice to have a written anti-harassment policy. Whether or not an employer needs to have a policy prohibiting harassment in general, the answer is probably going to be yes. You must require that your employees do not harass their other employees. However, it doesn't necessarily have to be written. It is good practice to do so.

What are some examples of a 'hostile work environment'?

Hostile work environment harassment can be one of many different things. Staring at someone in a sexually suggestive manner can be enough to constitute hostile work environment harassment. Whether or not it's going to be hostile work environment harassment, and rise to the level of something that's legally actionable, will depend upon other factors. Whether or not it is objectively offensive to an ordinary person, and whether or not the person who was subjected to this staring was also adversely affected by it, and was actually offended. Other examples of hostile work environment harassment, the obvious example, is physical contact. Any time that you have physical contact with a persons private areas - that will almost invariably rise to the level of legally actionable hostile work environment. If you have sexually suggestive posters, or if you have people who are making derogatory comments towards a particular gender, that, too, can rise to the level of legally actionable hostile work environment harassment, if it is severe enough and pervasive enough.

Can a single incident constitute sexual harassment?

It depends on what kind of incident it is. Usually, one single incident will not rise to the level of legal action, unless it is a work place rape or if there is any touching of a persons intimate areas.

Does flirting constitute sexual harassment?

If the flirting and bantering is welcome between those two employees, it quite possibly will not be deemed sexual harassment. However, two employees who are flirting and bantering in a sexual way could actually harass a third party who is subjected to it and who does not welcome that flirting and sexual bantering.

What can an employer do to prevent sexual harassment in the workplace?

The best thing for an employer to do to prevent sexual harassment is to educate its employees, and to disseminate a policy to perhaps do training for its employees on the effects of sexual harassment. The fact is that it is legally prohibited, and it's very detrimental to the job. In certain states such as California, employers are required to provide sexual harassment training to its managers. If the employer employs at least 50 employees, then they need to provide two hours of training every two years, which is interactive.