By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
Note: This article contains content adapted from lesson material written for APUS classes. This is the final article in a seven-part series on the particulars of employment negligence law and smart employer strategies for avoiding unnecessary workplace liability.
In the last article, we examined vicarious liability and looked at how workplace violence creates risk for employers. In this final part, we’ll assess the issues surrounding sexual harassment and its effects on the average employer risk profile.
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Sexual Harassment in Employment
One of the most unfortunate and pervasive concerns for employers today is sexual harassment in the workplace. According to the Equal Employment Opportunity Commission (EEOC), such harassment can include “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”
Under the law, sexual harassment generally comes in two different types: quid pro quo and hostile work environment. “Quid pro quo” is Latin for “this for that.” This type of sexual harassment entails a proposed exchange, usually as part of a power dynamic in the workplace.
Such exchanges can either be rewarding or coercive in nature. For example, if a supervisor asks for sexual favors in exchange for a pay raise, a promotion or other benefits, this is quid pro quo sexual harassment.
However, if instead of offering rewards the supervisor threatens the employee with demotion, discipline or firing for declining such sexual requests, this is also quid pro quo sexual harassment, but of a coercive nature. Both are illegal, and both can be very harmful for all parties involved.
The other type of sexual harassment is the hostile work environment. Hostile work environment harassment involves any verbal or physical gestures that cause a reasonable person to feel uncomfortable or unsafe. Such harassment needn’t involve any requests or demands; any verbal statement or physical action by someone in a workplace that causes another person distress may be grounds for hostile work environment harassment.
It’s also important to note that the statement or act may be related to sex in terms of gender and not necessarily sexual attraction, orientation, or intimacy. For example, making generally disparaging remarks about men or women in a workplace environment is considered hostile work environment sexual harassment.
Misconceptions about Sexual Harassment in Employment
There are many common misconceptions concerning sexual harassment. Stereotypically, the mention of sexual harassment tends to evoke images of male harassment against females. However, according to the EEOC, roughly 17 percent of all sexual harassment claims in 2019 were filed by men. Additionally, sexual harassment can occur between opposite sexes as well as between the same sex.
Another common misconception is that workplace sexual harassment is limited to employees of an organization. But case precedent has established that harassment laws adhere to and protect all potential parties in a workplace environment. This situation includes employees, customers, vendors, government officials and anyone else who might find themselves in a given work environment.
Nearly $70 Million in Sexual Harassment Claims Were Paid to Victims in 2019
Sexual harassment can be extremely expensive for employers. According to the EEOC, claims filed in 2019 resulted in nearly $70 million paid to victims. A single severe case can easily cost an employer millions of dollars. For example, in 2016, Fox News anchor Gretchen Carlson accepted a $20 million settlement from her former employer after she filed a complaint against Fox CEO Roger Ailes for his offensive sexual behavior.
Near the top of the scales, a physician’s assistant won $168 million from a hospital in 2012 after she claimed that doctors there constantly propositioned her for sex. Part of the reason for the hefty award was that nothing was done after she reported the behavior to her supervisors.
Many Employers Have Invested in Mandatory Sexual Harassment Training Programs
In response to these concerning employment trends, employers would do well to take these sexual harassment matters very seriously. Many employers have invested in mandatory sexual harassment training programs for all employees at the time of their hire. In addition, zero-tolerance policies are commonly being adopted, which essentially hold that an employee’s first instance of sexual harassment will result in termination.
This is a difficult tightrope for employers to walk. Terminating an employee without a sufficient reason could open the door for assumptions of wrongful termination (e.g., accusations of discrimination). The EEOC has stated that in order for harassment to violate Title VII of the 1964 Civil Rights Act (discussed in an earlier article in this series), it must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” When conduct is “sufficiently severe or pervasive” is ultimately for the courts to determine on a case-by-case basis.
One factor the merits consideration is whether the accused knew that the conduct in question was unwelcome. For example, if an employee makes romantic advances toward a coworker who welcomes the attention or at a minimum takes no offense — and there are no offended witnesses to the advances either — then presumably there is no sexual harassment; again, the conduct must render the work environment “abusive.” If no one is victimized or offended or made to feel uncomfortable in any way, then the element of abuse may not in fact be present. Of course, this doesn’t mean an employer can’t prohibit certain kinds of advances on the grounds that they are inappropriate for the workplace notwithstanding whether they actually cause anyone offense.
However, proving offense in sexual harassment can be difficult because victims are often disinclined to express their objections for fear of repercussions or social embarrassment. For this reason, the victim needn’t explicitly and overtly object to each and every instance of harassment in order for the accused to be put on notice that the conduct is unwelcome.
Particularly severe conduct, such as unsolicited and aggressive physical contact, or gestures and statements of a grotesquely lewd and lascivious nature, may be so unreasonably offensive that even if the perpetrator was not told by the victim that the conduct was unwelcome, he or she should have known it (similar to the “constructive notice” discussed earlier in this series). These instances may suffice on their own for termination after a first offense.
Ultimately, employers must weigh the risk of a wrongful termination claim against the risk of a sexual harassment suit. More often than not, if the matter is handled competently, the former will be easier to defend than the latter. Again, vicarious liability will hold employers liable for the actions of their employees, especially when there is prior evidence of a continuing concern. So employers should do everything possible to mitigate these risks before they cause irreparable harm.
One final point to note is that, by law under the Occupational Safety and Health Administration (OSHA) and the EEOC, retaliation against employees who report misconduct or violations of the law in good faith is expressly prohibited. Generally, the law prohibits any adverse actions (e.g., discipline, demotions, termination, threats and the like) against any employee who has engaged in protected activity such as refusal to participate in an illegal practice, reporting violations and the like.
Evidence that employee complaints made frivolously or with malicious intent is normally admissible to defend such retaliatory acts. But good faith complaints in employment are protected even if the employee turns out to be mistaken about the facts or circumstances of the complaint. So long as the mistake was genuine and the employee was reasonable in his or her perceptions and actions, retaliation is prohibited by law.
Employers should draft and publish carefully crafted anti-retaliation policies and ensure that all employees read and acknowledge them. Unless a retaliatory act is unavoidably necessary to the continued operation of the business, these types of actions should be avoided at all costs.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.