By Carrie Cherveny

Do you know which of these three examples may be considered illegal sexual harassment in the workplace?

  • The package delivery person who flirts aggressively with the receptionist in the front of your office;
  • The two employees who willingly share raunchy jokes and graphic conquest stories at the water cooler, oblivious as to whether they can be overheard; OR
  • The boss whose verbal abuse spares no one.

As the #MeToo movement continues to gain momentum, it’s important to know what legally constitutes sexual harassment (and discrimination). The nuances between bad behavior and illegal harassing behavior can be a challenge – both to the individual experiencing it and employers that are responsible for providing a work environment free from illegal discrimination and harassment.

While quid pro quo is one form of illegal harassment (“sleep with me and you get the job…bonus…promotion…”), a more difficult form of sexual harassment to identify is a “hostile work environment.” The roots of sexual harassment lie in Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against employees on the basis of gender, race, color, national origin and religion (there are also other laws that likewise prohibit discrimination on the basis of a protect class such as age, pregnancy, and disability) . These are considered “protected classes.”

So what does that mean for our three examples?

  • The delivery person: The package delivery person may not be your employee, but he or she is making your employee uncomfortable. One course of action may be to alert the delivery person’s company HR department to manage its worker from its end, perhaps by changing his route. Additionally, it may be a good idea to find a way to remove your receptionist from interacting with the delivery person. Your responsibility is to provide a work environment free from illegal harassment.
  • The water-cooler jokesters: Imagine that you have an employee working near the “action” who has to listen to this ceaseless back-and-forth even though it isn’t directed toward him or her. This “witness” to the conversations may have a basis for a complaint because harassment can be direct or indirect, and anyone exposed to it who reasonably believes it interferes with their ability to do their job, may have a valid cause of action against his or her employer. .
  • The horrible boss: The actions of an ill-mannered boss may become illegal if the individual targets employees on the basis of a protected class AND that behavior rises to the level to creating a hostile working environment.

Sexual harassment in the workplace should be a concern for an organization of any size, although Title VII applies to employers with 15 or more employees. That limit may be lower at the state, county, and/or municipality level, many of which have their own civil rights statutes. However, that doesn’t mean that smaller businesses do not face legal liability for sexually harassing behavior in the workplace. Employers may also face liability for tort claims – or a personal injury cause of action against an individual such as tort assault and battery.

Title VII hostile work environment liability may be triggered if the employer “knew or should have known” of the harassing behavior. For example, a shipping company had a call center in which employees played a radio show with vulgar language, employees engaged in gender-specific vulgar language, and frequently shared dirty jokes. A female employee complained several times to executives and human resources, and nothing was done. The company was found liable for a variety of reasons including, in part, that it “knew or should have known” about the ongoing sexually harassing behavior.

As #MeToo moves beyond hashtags and into actual charges of discrimination and lawsuits employers should know that their best defense lies in being prepared. Employer policies that detail an employer’s non-discrimination/non-harassment policy and complaint procedure is a good starting point. An employer’s complaint procedure should, at a minimum:

  • Allow both verbal and written complaints
  • Allow complaints to someone other than the immediate supervisor
  • Provide some variety or options for those authorized to receive complaints
  • Should clearly be separate and carved-out from any other “open-door” or complaint procedure in the company

It’s especially important that employees to know there’s a path for remediation and that they will be heard.

Training is incredibly important when it comes to discrimination and harassment in the workplace. Employers should provide training to managers and employees. Managers in particular should receive training on their special obligations and responsibilities as an “agent” of the organization. Additionally, all employees should to be trained on the company non-discrimination/non-harassment policy.

HUB International’s Risk Services team can help you understand the risks of sexual harassment complaints in your organization and the policies, rules and procedures that are important to have in place.