Friday, October 14, 2016

Variations on the Theme of Sexual Harassment

We’ve written a lot about sexual harassment recently, as have other commentators. As the subject is discussed, it’s important to remember that sexual harassment can present itself in many ways. It doesn’t always involve a boss harassing a subordinate, or a man harassing a woman. In fact, the EEOC reports that 17.1 percent of sexual harassment charges it received in 2015 were filed by men.
Federal and state laws prohibiting workplace discrimination do not limit their protections based on the gender of the harasser or the victim, and prohibit all forms of sexual harassment equally. In Oncale v. Sundowner Offshore Services, Inc., decided in 1998, the U.S. Supreme Court acknowledged that Title VII protects both men and women from discrimination based on sex and that sexual harassment by someone of the same gender can be illegal under Title VII. The EEOC offers extensive guidance on recognizing and dealing with all forms of sexual harassment. Nevertheless, employers may not recognize less typical forms of harassment, leaving themselves vulnerable to legal liability that could be avoided by taking timely and appropriate responsive action.
Private lawsuits alleging less typical forms of harassment are not uncommon. In addition, federal and state agencies charged with the enforcement of laws prohibiting harassment are just as interested in such claims as they are in “traditional” sexual harassment cases. The EEOC recently sued a Nashville manufacturer for allowing its male supervisory staff to subject male employees to sexual harassment, and earlier this year the agency sued a wireless phone company for same-sex sexual harassment, alleging that a female sales associate was harassed by a female colleague. 
For employers, it’s critical to educate managers and supervisors about what sexual harassment is (and isn’t), and to respond to all complaints of harassment in the same way.  Employers should:
  • Recognize harassment no matter how it presents itself. A harasser can be the victim’s supervisor, a supervisor in another part of the workplace, a co-worker, or even a non-employee, such as a client or customer
  • Take all allegations of harassment seriously. A complaint or concern should never be dismissed because the affected employee is a man, the alleged perpetrator is a woman, the employees involved are of the same gender, or the circumstances involve peers or co-workers.
  • Never assume that certain language or behavior is more acceptable to employees of one gender. 
  • Never assume that men are better able to defend themselves against harassment than women.

It’s also important to recognize that legal liability for employers and individual harassers does not arise only under anti-discrimination laws. The facts and circumstances that give rise to an allegation of sexual harassment in the workplace can also be the basis for other legal claims. Employers and individuals accused of harassment can be sued for
civil assault, civil battery, false imprisonment, or intentional infliction of emotional distress. Employers can be sued for negligent hiring or negligent supervision in certain instances. Some allegations of harassment may also be the basis for criminal prosecution of the harasser for stalking or criminal sexual assault or battery. The standards for these theories of liability and definitions of criminal conduct vary from state to state, but because they can apply to instances of workplace harassment, employers should be aware of them.
Because the majority of victims are women, the majority of perpetrators are men, and the majority of claims involve individuals of the opposite sex, it’s easy to forget that statutory, civil and criminal laws address the conduct involved in sexual harassment, and not the gender, sexual orientation, or status of the employees involved. Employers protect themselves best—and create the most respectful and productive workplaces—when they understand all the variations on the theme of sexual harassment.