What You Don't Know Can Hurt You
From: Highbeam Research
Date: 5/1/2000; Publication: Units;
Author: FRANKLIN, LYNN G.
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. naahq.org--by 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.
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
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
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
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.
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
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.
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).
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?
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
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
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
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.
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
Same Sex Harassment
Does a same sex harassment claim fall under Title VII?
Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998, 1003
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
Lockard v. Pizza Hut, et al.
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.
of Sexual Harassment Cases
What constitutes acceptable conduct?
Faragher v. City of Boca Raton
"... 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.
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.
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.
2000 National Apartment Association