Welcome back to CL basic law, today we’re gonna talk about sexual harassment. First question is what is sexual harassment and i’d like to read you a definiton commonly used by the courts: “when the workplace is permeated with a discriminatory intimidation, ridicule, and insult that is sufficiently severe and passive to alter the condition of the victim’s employment and create an abusive work environment.” What does that legalese mean? It means that a person is subjected to sexually oriented harassment whether it be quid pro quo ie you have sex with me in return for an oppoortunity, advancement, or avoiding adverse consequences such as termination, pay reduction, or you’re subjected to jokes etc in the workplace. It’s different than sexual discrimination and a lot of people mix the 2. Sexual discrimination is discriminating against a person because of their gender, ie not giving them a promotion, not giving them opportunities, demoting them etc because of their gender and there’s no sexual overtones to that decision it’s based strictly because that person is a woman or a man, transgender, or gay, but not connected with sexual overtones. That’s the difference between discrimination and harassment. The question is what does an employee have to show in order to succeed on a claim w sexual harassment. There are 2 types of claims as I mentioned- one is quid pro quo and the second one is harassment. The difference- QPQ is a demand for sexual favors in return for “this is an employment opportunity” or to avoid an adverse action. Sexual harassment is a hostile work environment that is charged with sexuality that one finds offensive- and they do blend over a little bit. So talking about a QPQ, the standard for that is 1) unwelcome sexual advances and the submission of rejection of those sexual advances is made knowing that an adverse action or a gain will be made, so a person may submit to the sexual advances but our of fear that if they don't something bad will happen and under those circumstances that is sexual harassment. The other one is more difficult and more amorphous- that’s a hostile work environment, co workers engage in in sexual jokes, commenting about your physical appearance, inquiring about your sexual tastes and things like that, and under that claim you have to show that it’s hostile and the courts will normally say that one instance is not enough. It has to be a series that interferes with your work and interfering with your work is an objective standard i.e. what would a reasonable person think would interfere with your work. Yes, an objective standard but not necessarily because that standard is changing as our societal norms are changing- so you’re before a jury and you’re asking the jury to say yes, a reasonable person would find that unacceptable. What a jury might see as a reasonable person today might be different than what a jury would see as a reasonable person yesterday- particularly now with the MeToo movement there is now a shift of being more aware of how even a single joke can be offensive. I’m gonna go through some of the elements in a little more detail here to help. First thing- is the event sexual in nature, is it asking someone to date you, is ti asking for sexual favors, is it sexual jokes. Is it unwelcome? The fact that the person laughs at the jokes maybe even participates a little in the jokes doesn’t mean they’re welcomed. Many people feel pressured at work to go along. So do not think if you have a coworker who’s just laughing at your jokes that they’re ok with it, they may not be. Nor do you think that they have waived their right to complain because they seem to go along with it. Not always. The purpose and effect, the jokes, the actions, the conduct, must have the purpose or effect of interfering with the opportunities in a normal work environment. Therefore the perpetrator doesn’t have to intend to interfere with the person’s enjoyment of work- it only has to have the effect of interfering with that work or one’s job duties etc. that’s where that objective standard comes in but even then everyone brings to an objective standard their subjective beliefs. Clear adverse actions by an employer would be termination, denial of promotion, demotion of duties, transfer to less favorable positions, or maybe being stuck in an office way at the end of the corridor or being segregated from the rest of the workforce, to create decreasing responsibilities- all of those are adverse. Does the sexual conduct have to be explicit- no. it could be implicit and that becaomes subjective and difficult to measure. Can men pursue a claim of SH? Yes. can there be same sex SH? Yes. As i mentioned one isolated act of sexual offensive conduct constitute SH? Normally no, it has to be a series, it has to be more than one. How many? Again it’s all based on the circumstances. What’s also important, who can be liable? It’s not just the company that’s liable for SH, a manager could be liable. A manager who allows sexual harassment to take place at the workplace can personally be liable for that SH. The harasser could be personally liable- what does that mean? Attorney’s fees, damages, punitive damages or treble (?) damages- all of those are potentially available to a person bringing a claim and the individuals involved or overseeing those involved in their aspect could be personally liable. Another area you have to be very careful about is retaliation- that is if someone makes a claim of sexual harassment whether on their own behalf or somebody else’s and there’s an adverse action to you- demotion, reduction of job responsibilities, being skipped over for a promotion because that person made the cclaim of sexual harassment on their own behalf or somebody else’s is a claim of retaliation under SH- and you may ask what happens if what they’re complaining about wasn’t SH? Doesn't matter, if the person retaliated because they made a good faith complaint of SH- not a bad faith complaint, a good faith complaint- they believed honestly that that was SH, then that could be a claim of sexual harassment under retaliation. And finally is Aiding and Abetting- saying you were not the harasser but your buddy Joe next to you was doing it, and you were egging him on- “hey joe, you know, give her a hard time” or if it was a gay situation “give him a hard time, ask him out, comment on his genitalia”- then you can be classified as an aider and abetter and be subject to the same liabilities. It is a complex area, SH, and it’s only getting more complex. Advice? Leave sexual innuendo, jokes, etc out of the workforce. It’s the safest thing. If you are feeling like you are sexually harassed, don’t stay quiet. Bring it up to your manager. Bring it up to HR. you need to document it. I hope this was helpful, thank you.
