By:  Daniel P. Simpson

While sexual harassment is a rapidly evolving area of law, it has been clear for a long time that quid pro quo harassment is actionable.  Quid pro quo harassment occurs when an employer attempts to make an employee’s submission to sexual demands a condition of his or her employment.

The more dynamic area of sexual harassment claims are those based upon a hostile workplace environment.  Here, the harassing conduct generally consists of unwelcome sexual touching or comments although they are not necessary elements of a claim.  A female plaintiff must prove that a reasonable woman would consider the conduct sufficiently severe or pervasive to alter the conditions of employment and create an intimidating, hostile or offensive working environment.  Needless to say, claimants need not be women and the claims need not be based upon heterosexual unwelcome comments or touching.

While most cases involve unwelcome conduct occurring over a period of time, the unwelcome conduct can consist of a single severe act of offensive touching or of multiple randomly occurring incidents.  More commonly, there is a pattern of harassing conduct which cumulatively creates a hostile workplace environment.

Much of the sexual harassment litigation involves whether or not the employer is liable for the acts of the employee doing the harassing.  That determination is made on a case by case basis and depends on many factors, including whether or not the harasser was a supervisor; if a supervisor, his or her authority concerning the management of subordinates; and whether or not the employer was negligent.  It is this last area, employer-negligence, where employers can and should act preemptively.

To avoid a claim of negligence, an employer must use due care.  Due care in this context has several elements.

First, an employer must have in place a well-publicized, preferably written, anti-harassment policy.  Sexual harassment cannot be tolerated in any workplace and it must be official policy to say so.

Second, each employer should have effective formal and informal complaint mechanisms.  If there is a claim of sexual harassment, the employee must know to whom he or she should complain and an investigation should result which is thorough and fair to all concerned.  The employee receiving the complaint and conducting the investigation should document all steps.   Appropriate disciplinary action must be taken at the conclusion of the investigation if warranted.

Third, there should be training, especially for supervisory employees, concerning what constitutes offensive conduct which makes a workplace abusive or hostile to members of one sex or another.  In addition, the training should explain how the complaint and investigative mechanisms operate.

Fourth, there should be some type of effective monitoring mechanism so that the employer can learn whether or not the policies and the complaint mechanisms are trusted and working effectively.

Fifth and most importantly, there must be an unequivocal commitment from the top down that having a workplace free of sexual harassment is not just words but is backed up by consistent firm practice.

Regardless of the procedures in effect, due care always includes a duty to act when evidence of harassment is brought to the attention of supervisory employees.  If supervisors learn of potentially abusive conduct, they must investigate, determine if it is harassment and, if warranted, take steps to eradicate it.  Supervisors cannot ignore signs of harassment without exposing the employer to liability.

Employment litigation is a booming area of the law.  Employers should prepare for the battle not just to win if sued, but because it is the right thing to do to make the workplace a pleasant, productive environment for all.

This publication is intended for general information purposes only and does not constitute legal advice. The reader should consult legal counsel to determine how the law may apply to specific situations.