Keep Your Hands to Yourself!

Keep Your Hands to Yourself!

Contributed by Arthur Charles Johnson II, Managing Partner, Johnson Ivancevich, LLP

A lesson we all learned when we were kids was to keep your hands to yourself. A related lesson was if you don’t have anything nice to say, don’t say anything at all. Failing to learn and apply these lessons as a child would most likely lead to a detention or, in more severe instances, land one in the principal’s office along with a call to one’s parents. Swift action would be taken to remedy the offense, as well as prevent it from occurring again in the future. Failing to apply or enforce these rules as an adult can lead to a dreadful working environment and subject an employer to a charge of sexual harassment in the workplace.

Just as swift action was appropriate to correct a child’s behavior, swift action to correct inappropriate workplace behavior is necessary. Given the rash of news stories recently, swift corrective action at one’s workplace may be less common than at school.

In 2016, the Equal Employment Opportunity Commission (EEOC) received 12,860 charges of sexual harassment and 26,934 sexual discrimination charges from throughout the country. The EEOC believes these numbers underreport the actual occurrence of harassment and discrimination. There were 786 sexual discrimination charges filed in Indiana in 2016, constituting 31 percent of all charges filed with the EEOC in Indiana. While the total cost to employers defending against such charges is unknown, EEOC based resolutions resulted in over $40 million paid out by employers to charging parties. This does not account for the legal expense involved in defending such a charge, litigated settlements, or verdicts, nor does it account for decreased productivity.

Given the pervasiveness of the issue and with a spotlight now shone upon it, it may be worthwhile to have a better understanding of what constitutes harassment and what an employer’s obligations are. Please note however, that this information should not be construed as legal advice.

There are two kinds of sexual harassment: “quid pro quo” and “hostile environment.” Quid pro quo” harassment occurs when your boss/manager/supervisor offers you benefits or threatens to change your working conditions based on your response to his or her demands for sexual favors.

Hostile environment harassment occurs when physical, verbal, or visual sexual harassment is severe or pervasive enough to create a hostile or abusive work environment. This type of harassment does not require a loss or threat of loss of your job or the promise of benefits. Generally, comments about your body, sexual remarks, pornographic images displayed at the workplace, and touching and grabbing may all create a hostile work environment. In addition, the conduct must be unwelcome.

While harassment that is sexual in nature may be more commonly described when discussing hostile environments, harassment that is nonsexual in nature, but motivated by anti-female animus, can also create a hostile environment as well. The unwelcome treatment need not be based on unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Instead, conduct demonstrating anti-female animus can support a hostile work environment claim. It is worth noting for purposes of demonstrating a hostile work environment claim, the “work environment” in which the abusive and hostile acts can occur reaches beyond the traditional “work place.” However, when the sexual acts occur outside the work place, the employee must identify sufficient facts from which to infer a nexus between the hostile sexual conduct and the employment.

The EEOC defines “sexual harassment” as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

  1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
  2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
  3. such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

For an individual to prove a hostile-workplace claim based on sexual harassment, the individual must establish that:

  1. he or she was subjected to unwelcome sexual conduct, advances, or requests;
  2. because of his or her sex;
  3. the acts were severe or pervasive enough to create a hostile work environment; and
  4. there is a basis for employer liability.

Conduct is unlawful when it is both objectively and subjectively offensive, in that a reasonable person would find the conduct hostile and/or abusive and that the victim in fact did perceive to be so. The employee must subjectively perceive the harassment as sufficiently severe and pervasive to alter the terms or conditions of employment, and this subjective perception must be objectively reasonable. That is, the environment must be one that a reasonable person would find hostile or abusive. The complaining employee must show such harassment would substantially affect the work environment of a reasonable person and the conduct was indeed offensive to the alleged victim, thus, affecting the victim’s ability to work. The totality of the circumstances includes the nature of sexual advances and the context in which the alleged incidents arose.

Employers have a duty to take all steps necessary to prevent sexual and other forms of harassment, including, but not limited to: affirmatively raising the subject; expressing strong disapproval of harassment; developing appropriate sanctions for it; and informing employees of their rights under the law. Under Title VII, an employer can avoid liability for hostile environment sexual harassment if it promptly investigates a complaint when made and then, if warranted, takes steps reasonably likely to stop the harassment.

Merely having a policy is insufficient. The Seventh Circuit Court of Appeals has indicated the mere creation of such a policy will not shield a company from its responsibility to actively prevent sexual harassment in the workplace. The policy must provide a meaningful process whereby an employee can express his or her concerns regarding an individual within the working environment. The policy’s complaint mechanism must be reasonable; what is reasonable is dependent on the employment circumstances, and therefore, among other things, on the capabilities of the class of employees in question. Moreover, the policy must not only be reasonably effective on paper, but also reasonably effective in practice.

An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. The focus is not on whether the employer is liable for the bad acts of others, but whether the employer itself is responsible for failing to intervene.

An employer has actual notice of harassment when sufficient information either comes to the attention of someone who has the power to terminate the harassment or it comes to someone who can reasonably be expected to report or refer a complaint to someone who can put an end to it. Constructive notice is established when the harassment was so severe and pervasive that the employer reasonably should have known of it or when an employee provides management level personnel with enough information to raise a probability of sexual harassment in the mind of a reasonable employer.

When an employer has a duty to take corrective action in response to harassment, it must be “prompt” or “immediate.” Effective corrective action makes the victim whole and prevents the misconduct from recurring. When an employer has an obligation to respond to harassment, disciplinary action against the perpetrators of the harassment may be necessary for the response to be effective.

Given the rash of explosive allegations, reviewing, and re-emphasizing your policies to ensure individuals keep their hands to themselves and their mouths shut on certain topics will minimize or eliminate the expenses associated when such activities occur.