Sexual Harassment

What You Don't Know Can Hurt You

From: Highbeam Research
Date: 5/1/2000; Publication: Units;

Do you know what sexual harassment is and when your company may be held liable for it? This will provide an overview of the various types of sexual harassment for which an employer can be liable, as well as examine areas of the law which require further definition.

Please complete the sexual harassment survey available through the National Apartment Association's website--www. June 30. Responses will remain confidential. Survey results will be published in a future issue of Units.

Sexual harassment has received more than its fair share of media attention in recent years. While the media often focuses on the emotional or dramatic side of the subject, from an employer's perspective, the real concerns are what is prohibited and how do you prevent it from occurring in your business?

Employers have good reason to be concerned about the potential occurrence of sexual harassment. In recent rulings by the United States Supreme Court, there is greater potential for employer liability for sexual harassment under certain circumstances. Other decisions of the courts have extended Title VII, the federal law which prohibits sexual discrimination and harassment in the workplace, to a wide array of scenarios, most of which employers never anticipated they might be responsible for.

With all the information tossed about in recent years regarding the subject, most employers and property owners/ managers probably believe they know enough about sexual harassment to protect themselves against it. Most employers would be wrong to make that assumption, based on statistics. The current law would indicate the same. Last year, the Equal Employment Opportunity Commission (EEOC) received 15,222 sexual harassment charges against various employers throughout the country. Almost any employer could wind up facing an EEOC charge or worse, like a federal lawsuit, simply by failing to know what goes on daily in the workplace and by failing to understand the potential ramifications of conduct that might seem innocent at the time.

The common and emerging faces of sexual harassment

Under Title VII and most related state legislation, there are various types of sexual harassment for which an employer can be held liable. The most widely known and discussed variations are quid pro quo harassment and hostile work environment claims. Quid pro quo harassment claims involve situations where a property manager makes unwanted sexual advances to which an employee must submit to avoid detrimental impact of job benefits, such as promotions, work assignments, raises or continued employment. Of course, conduct which could give rise to a claim for quid pro quo sexual harassment is not often so simple or clear cut. The threat of consequence does not necessarily have to be spoken, but could be implied through non-verbal conduct or resulting job loss following a refusal to comply.

Hostile work environment claims arise where there is allegedly offensive conduct or conditions of a sexual or gender specific nature in the workplace which are sufficiently pervasive so as to alter the conditions of the victim's employment and create an abusive work environment. Hostile work environment claims can arise from the conduct of a supervisor, co-worker, or even a non-employee. The identity of the perpetrator is relevant for purposes of the degree in which the employer will be held liable. The severity of the conduct which gives rise to a hostile work environment claim, however, is generally the same regardless of the perpetrator.

Harassment by a supervisor

Under the current law, when the hostile work environment is created by a supervisor and the employee suffers job detriment, the employer can be held liable. From a legal perspective, that means the employer has no defense once the employee establishes conduct which violates Title VII. Previously, employers were only held liable when an employee proves quid pro quo harassment. In contrast, liability for a hostile work environment created by a supervisor, depended more on whether the employer took prompt action to resolve the situation once aware of it.

Under the current standards, however, the line between quid pro quo harassment claims and hostile work environment claims blurs. An employer is now liable when a sexual advance or inappropriate sexual conduct by a supervisor is followed by job detriment or hostility from the supervisor, without any expression of a threat of consequences.

The crucial factor for liability is whether the employee suffered a "tangible job detriment" or a "tangible employment action" which ultimately is detrimental to the employee. A "tangible job detriment" or "tangible employment action" has been defined as a significant change in employment status. Such a broad definition, not surprisingly, has left courts with the burden of determining what rises to the level of prohibition.

The general consensus is that unfulfilled threats are insufficient, but termination or demotion are clearly sufficient to qualify as tangible employment action. Some examples of tangible employment actions in between these two extremes include: failure to hire or promote; undesirable reassignment; or a decision causing a significant change in benefits, compensation decisions, work assignment or job duties.

When an employee is harassed by a supervisor and no tangible employment detriment or action follows, an employer still has a legal defense which they can raise as an affirmative defense to liability or damages. In this circumstance, the employer may avoid liability by showing conduct designed to deter harassment in the workplace.

The affirmative defense which may be asserted has two elements. First, the employer must show it used reasonable care to prevent and correct any harassment. Second, the employer must show that the employee failed to take advantage of any preventive opportunities provided by the employer. The EEOC has strict guidelines regarding what evidence is sufficient to establish this defense. All employers should take heed of those guidelines when developing and implementing policies and practices designed to deter harassment.

Harassment by a co-worker

A slightly different standard of liability is imposed on an employer where a co-worker is responsible for creating a hostile work environment for an employee of equal or greater authority. It cannot be said that the acting party is acting with the authority of the employer, or that the co-worker was directly responsible for any tangible employment action unfavorable to the victim. Accordingly, an employer is only held liable for harassment by a co-worker in which the employer know or should have known of the conduct, but failed to take prompt action. For this type of claim, the employer is not held accountable for conduct of employees of which it had no knowledge. However, an employer is responsible to make reasonable efforts to know what goes on in the workplace. In that regard, certainly what an employer is not aware of can become a serious issue of potential liability.

The elements of a claim for sexual harassment by a co-worker require showing that the employee:

* was subjected to unwelcome harassment;

* that the harassment was based on the employee's sex;

* that the harassment was sufficiently severe or pervasive to alter a term or condition of employment, and;

* that the employer knew or should have known of the harassment, and failed to take prompt action.

Conduct that is not severe enough to create an objectively hostile or abusive environment--an environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview. Likewise, if the victim does not perceive the environment to be abusive, the conduct has not altered the conditions of the victim's employment, and there is no Title VII violation.

Conduct which creates a Hostile Work Environment

By law, to rise to the level of unlawful conduct under Title VII, the conduct in question must be sufficiently pervasive and severe as to alter the conditions of employment. The issue of pervasiveness is relatively clear cut. In most cases, a viable claim involves repeated conduct. Isolated acts or occasional episodes are not enough. Courts will, however, look at singular incidents of harassing conduct to determine if, over time, such conduct resulted in a pervasive atmosphere of hostility.

The issue of the severity of the conduct, however, is a murkier topic. While one incident is generally insufficient to meet the requirement of pervasiveness, a single act could create a hostile environment of sufficient severity. As noted earlier, actionable conduct consists of that which a "reasonable" person would find offensive and objectionable, and that which the victim found offensive and objectionable. While circumstantial and direct evidence of the victim's subjective view of the conduct can be evidenced by the victim's testimony, and observable conduct or actions of the victim, no such evidence is available to establish whether a "reasonable" person would find the conduct in question to be offensive or objectionable.

Indeed, for a hostile work environment claim, there is no universal "objective" guideline to determine when conduct crosses the line from banter to harassment. Courts have provided a few examples of general conduct which could give rise to a hostile work environment claim, which include sexual comments or jokes; unwelcome physical contact; cartoons, posters, magazines or drawings with either direct sexual content or which could be construed as having sexual connotations; or any combination of the preceding which may be deemed to be "sufficiently" pervasive to alter the work environment. Nonetheless, the insight offered by the courts still amounts to only general classifications of conduct or circumstances, all of which become relevant only by a matter of degree. Unfortunately, the questions still remain. What conduct is sufficiently severe? Who is the "reasonable" person?

When workplace conduct crosses the "line" is still one of the questions which hangs over the upper-level management and human resource professionals who are required to intervene in harassment disputes. This group often look to the courts for guidance on such issues. More often than not, even in litigation, that determination is left for counsel to argue and the court to decide upon their own experiences, understandings, and prejudices.

To define what conduct our society deems to be "reasonably" objectionable, this sexual harassment survey has been developed. The survey includes various depictions of workplace situations which include scenarios of varying circumstances and degrees of severity. The survey is designed to establish a national standard as to the objective component of a hostile work environment claim, such as what conduct is offensive or objectionable to the average or "reasonable" person.

A national sampling of responses to the survey will provide a clear understanding as to what conduct is deemed tolerable and intolerable in present day society, with consideration of relevant cultural variables, such as the geographic region, type of employment, gender, age, education, and other relevant factors of diversity. Please visit the NAA website to take the survey.

Equal Employment Opportunity Commission Definitions

Title VII "... an unlawful employment practice for an employer to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment because of such individual's sex." 42 U.S.C. 2000e-2(a)(I).

Sexual harassment under Title VII: "... unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature."

See 20 C.F.R. 1604. 11(a) (1993).

NAA Industry Related Scenarios of Sexual Harassment

The following are examples of potential situations which can or have arisen in the multifamily housing industry. Will the company be liable for the conduct?

Example 1 A male property manager makes suggestive and flirtatious comments to the part-time female leasing consultant regarding her appearance and attire. He has also started to drop by the complex on the weekends, during his off-duty hours, while the leasing consultant is working alone. He has asked her out on several of those occasions, and she has repeatedly turned him down. The property manager did not intend to offend the leasing consultant, or make her uncomfortable, but is unaware of the impact of his actions. The leasing consultant states her concerns over his conduct to her co-workers, but not to anyone in management.

Is this sexual harassment? A court could likely conclude that the property manager's conduct is sexual harassment under Title VII, given the supervisory position of the property manager, the nature of the comments, the unwarranted visits, and requests for dates. The leasing consultant's failure to report to management is of no consequence if she subsequently suffers some form of job detriment by the property manager. If her work conditions remain the same, the court will examine the reasonableness of her failure to tell management, and the company's practices and policies regarding sexual harassment in the workplace. The fact that she discussed the matter with co-workers only adds to the company's potential liability, in that the company may still be found to have had knowledge of the conduct, or have had reason to know of it. All employees should be expected to report incidents which they feel violate the company's policies. Allowing them to do so anonymously might further their interest in reporting information of this nature.

Example 2 A male maintenance technician supervisor makes suggestive comments in conversations with female members of the office and leasing staff, and he frequently discusses his sexual preferences and exploits. He also asks the female employees about their sexual experiences. The staff has not shown any interest in conversations of this sort with him, and a few of them have told him to "Get lost." The female employees do not work with the maintenance technician supervisor on a day-to-day basis, and the comments do not occur every time he visits the office. The female property manager has witnessed these conversations, but has not instructed the maintenance technician supervisor to refrain from such conduct. She is concerned that well-trained employees are difficult to find, and does not want to have to replace her maintenance technician supervisor, who is otherwise a good employee. After another suggestive comment by the maintenance technician supervisor, a female employee tells the property manager that she found the comments disgusting. The property manager says, "Well, you know how he is, but you don't work with him all the time, so just ignore him."

Is this sexual harassment? Again, a court would likely find this conduct to create a hostile work environment, and therefore, as actionable sexual harassment. Since the conduct is by a co-worker, the female employees subjected to the hostile environment need not have suffered a job detriment. Rather, for the company to be liable, it must merely have had knowledge of the situation, and failed to take action to remedy it. While the property manager's concern over qualified employees is understandable, that is not a ground to allow one employee to become a menace to the others. The property manager could likely have resolved the situation by addressing the matter openly with the maintenance technician supervisor, first with a verbal warning, then followed by a written warning, and subsequent termination for repeated conduct. This protects the company, the female employees, and gives the offending employee the chance to alter his workplace conduct.

Example 3 Two female potential residents have taken a fancy to a male leasing consultant, and begin to flirt with him when he takes them to view the model apartment home. They stand in close proximity to him during the tour, and ask him many personal questions, including his marital and dating status. Before deciding to rent an apartment home from him, they return several times while he is on duty, and request to be shown the model again. During the last such visit, one of the potential residents comments on the leasing consultant's physique and pinches him. After this incident, he begins to receive frequent calls from one of the females while he is at work. He finally asks another employee to assist the two female potential residents and tells the property manager he feels uncomfortable assisting them. Because he is somewhat embarrassed, he does not explain the situation to his property manager.

Is this sexual harassment? Although the potential residents are not employees, they have contact with the leasing consultant through the scope of his employment. Both the Courts and the EEOC have found such conduct by a non-employee to be actionable in the same manner that it would be if the conduct were by a co-worker, with the exception that the employer must have some reason to know of the conduct before liability will ensue. The leasing consultant informed the property manager of a concern, and asked another employee for assistance. Also, an employer is held to have knowledge of conduct which transpires on a frequent basis in an open and observable way. The other employees likely noticed the return visits of the two females, and, if the company maintained traffic records with information regarding the visitors, the company could be found to have had sufficient information regarding the situation to be held liable. All of those factors weigh in favor of liability on the part of the company. To avoid liability, the company must follow-up on all employee concerns to ensure that necessary information is not ignored. It is also a good practice to maintain an open-door policy with employees, allowing them to apprise management of situations which arise in the workplace. Employees, at all levels, should be advised to notify management or human resources of any unusual conduct by a non-employee which takes place in the workplace or in the scope of employment. A company can be held liable for the conduct of the public, the residents, and even vendors, who interact with employees.

Court Cases

Same Sex Harassment

Does a same sex harassment claim fall under Title VII?

Case: Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998, 1003 (1998).

Decision: Affirmative

Analysis: The Supreme Court was faced with harassment of a homosexual male employee by other male employees. The conduct which the Court found within the purview of Title VII was the harassment directed toward the employee because of the harasser's attitude toward homosexual men. The distinction was that if the harassment was only due to the victim's sexual preference, and it was evident those involved in the harassing conduct would have treated a homosexual female in the same manner, there would be no Title VII liability. In short, the critical issue is whether a member of one gender is exposed to conditions of employment to which members of the other gender are not. The Supreme Court noted that courts should not confuse "horseplay, intersexual flirtation, or ordinary socializing" as unlawful conditions of employment.

Non-Employee or Third Party Harassment

Does Title VII protect individuals beyond the traditional victim of harassment or discrimination and which circumstances fall under that protection?

Case: Lockard v. Pizza Hut, et al.

Decision: Affirmative

Analysis: A waitress was awarded $200,000 in compensatory damages for a hostile work environment created by two customers. The imposition of liability on the employer for the conduct in question was premised on the expectation that the employer ultimately has control over the conditions of the work environment. A non-employee may also be able to sue the employer of a harasser in which the non-employee came into contact with the harasser solely through the harasser's employment. This type of claim would arise in circumstances directly converse to those in the Lockard case--where, for example, a customer is harassed by an employee.

Expansion of Sexual Harassment Cases

What constitutes acceptable conduct?

Case: Faragher v. City of Boca Raton

Decision: "... in order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive." Faragher, 118 S. Ct. at 2283.

Analysis: the Supreme Court directed lower courts to examine "all of the circumstances" when considering whether workplace conduct rises to the level proscribed by Title VII.

Lynn G. Franklin, Esq.

Ms. Franklin is managing shareholder for Franklin & Johansen, P.A., in Orlando, Fla. She is Franklin & Johansen's senior counsel for all aspects of employment and civil rights litigation in Florida and federal courts on behalf of public and private employers.

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