New allegations of sexual harassment in the workplace appear in the headlines daily now. We have all heard the reports about Harvey Weinstein, former president George H. W. Bush and now Matt Lauer.
The media uses the term sexual harassment to describe any type of sexual conduct that is unwanted, ranging from boorish sexual comments to physical groping to sexual assault. In the work place, the term sexual harassment has a more specific meaning.
Sexual harassment is a Form of Gender Discrimination
Under Title VII, as well as most states’ Human Rights Acts, it is unlawful for an employer to harass a person, an applicant or employee, because of that person’s sex. Title VII prohibits an employer from "fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." 42 U.S.C. § 2000e-2(a). The Supreme Court has construed § 2000e-2(a)(1) as allowing a plaintiff to allege a violation of Title VII by proving that discrimination based on sex, otherwise known as sexual harassment, has created a hostile or abusive work environment.
Defining Actionable Sexual Harassment
Title VII does not proscribe all conduct of a sexual nature in the workplace. Thus, courts are left to grapple with the task of distinguishing between conduct that is actionable under Title VII and conduct that is offensive but not chargeable. It is not a bright line. On one side lie sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; and pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo. Most work place sexual harassment claims fall somewhere in the middle. The EEOC defines sexual harassment as unwelcome sexual conduct that is a term or condition of employment;
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,
- submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
- such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
29 C.F.R. § 1604.11(a). The U.S. Supreme Court has stated that these Guidelines, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).
Two Types of Workplace Sexual Harassment
Quid Pro Quo Harassment
Quid pro quo harassment occurs in situations where submission to sexual demands is made a condition of tangible employment benefits. "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when . . . submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, . . .". 29 C.F.R. § 1604.11(a). The seminal case in the Seventh Circuit is Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 461 (7th Cir. 1990), which defined quid pro quo sexual harassment as "situations in which submission to sexual demands is made a condition of tangible employment benefits." Employers engage in quid pro quo sexual harassment when they condition employment benefits on the granting of sexual favors or on submission to sexual advances. Thus, there is no quid pro quo harassment when no one at the place of business links economic benefits to the plaintiff's participation in sexual conduct.
The Seventh Circuit has noted that a five-part test provides a "useful framework" for evaluating quid pro quo sexual harassment claims. According to that test, in order to prove a prima facie case for quid pro quo sexual harassment, a plaintiff must show that (1) she is a member of a protected group; (2) the sexual advances were unwelcome; (3) the harassment was sexually motivated; (4) her reaction to the advances affected a tangible aspect of her employment; and (5) respondeat superior has been established. Bryson v. Chicago State Univ., 96 F.3d 912, 916 (1996). An employer is subject to strict liability for quid pro quo harassment by a supervisory employee. Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997).
Hostile Environment Harassment
A "hostile work environment" arises when the alleged sexual harassment “has the purpose or effect of . . . creating an intimidating, hostile, or offensive work environment.” Meritor Savings Bank, supra. To establish a prima facie case of hostile environment sexual harassment, a plaintiff must demonstrate that: (1) she was subjected to unwelcome sexual harassment; (2) the harassment was based on sex; (3) the sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance in creating an intimidating, hostile or offensive working environment that affected seriously the psychological well-being of the plaintiff; and (4) there is a basis for employer liability. Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1032 (7th Cir. 1998). The third prong of this test—the severity or pervasiveness of the harassment—has both an objective and a subjective component. Lapka v. Chertoff, 517 F.3d 974, 983 (7th Cir. 2008). The plaintiff may satisfy the subjective prong by presenting evidence that he in fact perceived his workplace as hostile or abusive. In determining whether a workplace is objectively hostile, the court considers the totality of the circumstances, including the frequency and severity of the discriminatory conduct; “whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S. Ct. 2275 (1998).
Under Title VII, different standards of employer liability apply depending on whether the alleged harasser is the victim's supervisor or a coworker. An employer is strictly liable for harassment by a supervisor. Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 848 (7th Cir. 2008). A "supervisor" for Title VII purposes is "not simply a person who possesses authority to oversee the plaintiff's job performance, but a person with the power to directly affect the terms and conditions of the plaintiff's employment." Id. This power includes generally the authority to hire, fire, promote, demote, discipline or transfer. An employer is liable for harassment by a coworker only if it was negligent in discovering or remedying the harassment, that is, if the employer "knew or should have known about the harassment and failed to take reasonable steps to remedy the harassment once it was on notice." Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 976 (7th Cir. 2004). Put differently, the employer can avoid liability for its employees' harassment if it takes prompt and appropriate corrective action reasonably likely to prevent the harassment from recurring.
Sexual Harassment Applies to Both Genders
While the news is replete with stories of women being sexually harassed and most cases involve women who were sexually harassed, sexual harassment is a gender-neutral offense. Men can sexually harass women and women can sexually harass men.
Avoiding Sexual Harassment Claims
Employers need to be proactive in avoiding sexual harassment in the workplace. It is the employer’s legal responsibility to maintain a workplace that is free from sexual harassment.
There are steps all employers should take to reduce the risk of sexual harassment occurring in the workplace.
- Enact a clear sexual harassment policy. The policy should include the following:
- defines sexual harassment such as “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature”;
- states that there is a zero tolerance for sexual harassment;
- states that employees engaged in the conduct will be disciplined;
- provides clear procedures for filing sexual harassment complaints; and
- provides that employees will not be retaliated against for filing a complaint.
- Educate supervisors and managers about the company policies related to sexual harassment including both the conduct that violates the policy and discipline up to termination if they engage in sexual harassment.
- Explain how to deal with employee complaints.
- Educate employees with specific information regarding the company policies.
- Educate employees on how to file sexual harassment complaints.
Finally, follow through with the policies. While it may be difficult to discipline higher management or highly performing employees, company liability, as well as a negative company environment are at risk. Sometimes the right decisions hurt the most at the time but have intangible long term benefits. If you want assistance with drafting sexual harassment in the work place policies or reviewing existing policies, please contact Kristin Tauras at McKenna Storer.
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