Those two words have dominated the news both at the state and national level over the past few weeks. In recent years, large corporations such as Chipotle, Uber, Fox News Network and many others have publicly settled with employees for millions of dollars. The rules seem so simple, but the real world often complicates what should be black and white. We are all then left to navigate the world of gray that remains. In general, this onslaught of accusations can be seen as a wakeup call for employers to dust off the personnel policy binder and review what both your policies and applicable laws say about sexual harassment in the workplace.
For Kentucky cities the legal framework for sexual harassment comes primarily from two sources- Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act. Each of these bodies of law prohibit discrimination and harassment on the basis of a person’s gender (among other protected classes). While sexual harassment can be a wide spectrum of behaviors, three factors must be present. The conduct must have been unwelcome or unwanted, sexual in nature or based on the person’s gender and there must be an impact on the employment relationship of the person involved. Keep in mind that “employment relationship” can mean any aspect of employment including hiring, promotion, compensation, work assignments, performance evaluations, fringe benefits, etc.
Each year in the United States approximately 13,000 sex based discrimination complaints are made to the Equal Employment Opportunity Commission (EEOC). The EEOC is the federal enforcement agency for Title VII of the Civil Rights Act, which provides protection for a variety of protected classes, including gender/sex. However, that number represents just a drop in the illustrative “bucket” for the actual rate at which sexual harassment occurs in the American workplace. Studies reveal that only 19% of women and under 15% of men who experience sexual harassment ever make a formal complaint. Despite the recent wave of news reports, most people who suffer sexual harassment at work do not report the behavior. There is a fear of being branded a trouble maker, fear of retaliation for the complaint and in some cases people are embarrassed of the behavior or what has happened to them. It is important to have clear personnel policies that provide understandable procedures for reporting harassment. This measure can help protect the employer from liability and insure that employees have a safe work environment.
When you are reviewing a case of alleged sexual harassment it is important to take note of all the key players in the situation. You will have the harasser, or the person who has allegedly committed the act of harassment. Remember, this can be an employee, supervisor or a third party who is not an employee at all, such as a citizen or a vendor. The employer responsibility to provide an environment free of harassment is not limited to just control of employees, but rather requires proactive steps to prevent any individual from harassing employees. You will also have a victim or the target of the harassing behavior. Keep in mind that bystanders can make allegations of sexual harassment and if the behavior is severe and pervasive enough that it alters their employment conditions, they too can be protected under Title VII. The final character in any sexual harassment scenario are the administrators and supervisors involved. This group creates, implements and enforces workplace policies of zero tolerance, provides training for employees and responds to reports of inappropriate behavior.
There are two forms of sexual harassment, but the behaviors that constitute harassment can be varied. The first form of sexual harassment is quid pro quo harassment, which is Latin for “this for that.” This is an exchange between the harasser and the victim. Typically, this harassment is committed by a supervisor against a subordinate employee because only someone with authority can offer a workplace benefit or perk in exchange for a sexual request. The second form of sexual harassment is hostile work environment and is much more subtle. This requires proof of an established pattern of harassing behaviors which focuses on the gender, physical attractiveness, sexual activities or other gender based issue of an employee. Such conduct must be unwelcome and severe and pervasive enough to alter the conditions of employment, to violate the law. When analyzing whether or not a situation rises to the level of hostile work environment it is important to consider the frequency and severity of the conduct, whether the conduct is physically threatening and/or intimidating or merely an offensive utterance. You also want to consider whether or not the behavior unreasonably interferes with the employee’s ability to do his or her job.
Most all of us joke around with our coworkers. When discussing sexual harassment it is inevitable that someone will ask what the “line” is that separates friendly office joking and banter from sexual harassment. This all depends on a thorough analysis of the factors above and what standards of behavior your personnel policies prescribe for employees.
Transparency and accountability are values that promote employee morale and productivity. Make sure that your personnel policies are updated and reflect the core belief of your agency that all people should feel safe at work from sexual harassment and all other forms of workplace harassment and discrimination. To schedule sexual harassment prevention training for your city or for questions on this or other personnel matters, contact Personnel Services Attorney, Jessica Miller.
The following series of articles deal with employee discrimination issues. (Dates indicate when the article originally appeared in KLC DirectLine).