Sexual harassment

Scope

Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Regulatory citations

• None

Key definitions

• Sexual harassment: Unwelcome behavior of a sexual nature. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct:
  • Affects an individual’s employment,
  • Unreasonably interferes with an individual’s work performance, or
  • Creates an intimidating, hostile, or offensive work environment.

Summary of requirements

Sexual harassment is not limiting — it covers a wide variety of circumstances. The victim as well as the harasser may be a woman or a man, and the harasser does not have to be of the opposite sex.

The harasser may be a:

• Supervisor,
• Agent of the employee,
• Supervisor in another area,
• Coworker, or
• Non-employee (customer, vendor, independent contractor, etc.)

Unlawful sexual harassment may occur without economic injury to or discharge of the victim. Prevention is the best tool to eliminate sexual harassment in the workplace. It must be clearly communicated to employees that sexual harassment will not be tolerated.

Enforcement. When investigating allegations of sexual harassment, the Equal Employment Opportunity Commission (EEOC) looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

Whether an employer is responsible for the alleged harassment varies depending on the circumstances. In the case of supervisor action, the employer will generally be responsible where the employee has suffered a tangible loss (discipline, discharge, etc.) and may be responsible in other cases depending upon the procedures it adopts and the action of the employee who is harassed. In the case of other employees, the issue frequently involves whether the employer knew of the conduct and how it responded. According to 29 CFR 1604.11(d), “With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.”

It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

Avoiding liability. Prevention is the best tool to eliminate sexual harassment in the workplace. Courts sometimes require evidence of written sexual harassment policies, and proof that employers have conducted training on the organization’s policy.

Employers should:

• Clearly communicate to employees that sexual harassment will not be tolerated,
• Provide sexual harassment training to employees, in addition to establishing an effective complaint or grievance process (and in some states this is legally required), and
• Take immediate and appropriate action when an employee complains.

Employee training may include:

• Expressing strong disapproval of such conduct,
• Informing employees of sanctions,
• Informing employees of how to raise the issue, and
• Developing methods to sensitize all concerned.

In many court cases, the issue is one of how much inappropriate behavior is necessary before the conduct reaches the level of actionable harassment. In training, however, employers should provide a clear explanation of what illegal sexual harassment is, how to recognize it, and the company’s complaint process. Among the actions which should be covered and which may constitute harassment, are:

• Sexual jokes and innuendo;
• Repeated requests for dates after it is apparent the employee is not interested;
• Display of posters, cartoons, websites, etc. with sexually offensive material; and
• Inappropriate touching.