Sexual Harassment in the Workplace

Published 01/14/2020
 
 
According to the National Conference of State Legislatures...
 
 
In 2017, the #Metoo movement swept through the U.S. bringing a fresh focus on sexual harassment in workplaces, but protections were in place before that.
In the late 1980’s, the Supreme Court interpreted Title VII of the Civil Rights Act of 1964 to include discrimination based on “sex” as sexual harassment in the workplace. The law recognizing sexual harassment as a form of sex discrimination applies to private employers with 15 or more employees, as well as government and labor organizations.
 
Sexual harassment can occur in a variety of ways, according to the U.S. Equal Employment Opportunity Commission (EEOC):
 
  • The victim, as well as the harasser, may be a woman or a man. The victim does not have to be of the opposite sex from the harasser.
  • The harasser may be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker or a non-employee, such as a vendor or customer.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
  • The harasser’s conduct must be unwelcome.
 
More than 7,500 sexual harassment claims were filed with the EEOC in FY 2018. This was a 14 percent increase from the prior year. Due to the recent wave of sexual harassment accusations, many states are looking to go beyond federal regulations to prevent workplace sexual harassment. Some states have included “sex” in their discrimination laws as a protected class.
 
Depending on the specific state, “sex” protections can cover the prohibition of sexual harassment in the workplace. Other states have explicitly included a prohibition of sexual assault in the workplace in their employment discrimination laws. Currently, 47 states prohibit “sex” discrimination. Twelve of these states cover sexual harassment under the protection against workplace discrimination based on sex. Twenty-four other states--plus D.C. and Puerto Rico--explicitly state that “sexual harassment” is not permitted in a workplace. Eight states go beyond prohibiting these practices by requiring employers to provide sexual harassment training in their workplaces.
 
Other states are looking for ways to ensure victims of sexual harassment in the workplace can report their accusations. Eleven states (including Rhode Island) are currently working on legislation to prohibit the use of non-disclosure agreements in situations involving workplace sexual misconduct.
 
How the EEOC Determines If You Have a
Hostile Work Environment
 
  • whether the reported harasser is an employer, employer’s agent, supervisor, co-worker or customer;
  • whether the conduct was verbal or physical or both;
  • whether the conduct was hostile or patently offensive;
  • how frequently it occurred;
  • whether others joined in perpetrating the harassing conduct;
  • whether the harassment was directed at more than one employee; and
  • whether the offensive conduct was dealt with and immediately ended or condoned by senior management when it was reported to them.
 
Obvious, the whole issue of sexual harassment at work is complicated daunting. Any miss-step on the part of an employer can have severe consequences. Our professionals at ASN can advise you as to how to ensure that your procedures and practices are adequate and up to the challenge. Give us a call - we would love to help you.