By: Amy Epstein Gluck

People are confused!

From Uber to a well-known jewelry chain, ad agencies and TV hosts, from Harvey Weinstein to restaurant employees, I hear more and more that there is confusion about what actually constitutes sexual harassment or racial harassment or age-based harassment, etc.—let’s call it unlawful harassment.

Recently, the spouse of one of my partners expressed true concern that he could have been sexually harassing his wife in violation of workplace anti-harassment laws. (She, who reads this blog, explained that the advances had to be unwelcome and arising from the context of the workplace to constitute unlawful workplace harassment.)

When we talk about sexual harassment based upon any protected class, here, as opposed to a school setting, we are talking about behavior that occurs in the workplace and that implicates Title VII of the Civil Rights Act of 1964 (“Title VII”).

While employers may not want to think that unlawful harassment exists in their organization and is not the epidemic that it appears to be, the fact is, it is commonplace. In fact, I’ve recently read blogs and articles, and listened to “legal” commentators minimize the seeming recent explosion of sexual harassment claims.

One claimed that polls showing the ubiquity of such harassment does not signify any kind of epidemic outside certain segments of high-profile industries. To me, this sounds like willful myopia; statistics indicate and we’ve seen right here at our blog that sexual harassment exists in every industry and type of workplace. In 2016 alone, the EEOC, the federal agency that enforces Title VII, reported receiving almost 27,000 charges of sexual harassment.

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So, what can you do as a well-meaning, law-abiding employer? Well, first you have to understand what sexual and unlawful harassment is … and what it is not.

What Unlawful Harassment Is Not

At first, many companies often express this sentiment: “Well, I’m just going to ban all harassment. No one can harass any other person in my workplace. That way everything will be included.”

Good idea? Not so much.

The reason employers should not institute an overall ban on “harassment” is because only unlawful harassment—based on a protected class such as sex, race, age, disability, religion, etc.—is illegal. “Bullying” that is not based upon any of these protected classes is entirely lawful.

Unlawful harassment is not a supervisor with a horrible demeanor who screams at subordinates. It is not an introverted manager or colleague who others think create drama or tension in the team. It is not when employees leave out other employees or speak condescendingly per se. A work environment containing conduct that is simply unpleasant, nasty, and unprofessional does not automatically mean it is a hostile work environment. Title VII does not mandate a code of conduct and behavior.

Rather, harassment is only unlawful if it is based on or because of an employee’s inclusion in a protected class such as sex, race, religion, age, disability, or other legally protected characteristic.

What Exactly IS Unlawful Harassment and a Hostile Work Environment?

Now, let’s contextualize sexual harassment so you know what kind of conduct and/or comments can lead to a finding of sexual harassment and a hostile environment in your workplace. Sexually charged comments, banter, or “guy talk” made by executives, supervisor, or any employee to another may subject an employer to liability under Title VII if it rises to the level of sexual harassment by creating a hostile work environment.

To constitute a hostile work environment, first, the comments themselves must be based on a protected characteristic, such as gender—the harassment must be because of the harassee’s sex (or race, disability, age, etc). Second, the comments must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. Finally, the sexually charged comments or conduct must be severe and pervasive to the point that the employee herself or himself considers it to be offensive and abusive.

If we’re talking sexual harassment, offensive conduct may include, but is not limited to, offensive sex-based jokes, slurs, epithets or name calling; physical assaults or threats of assaults; intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. These must be based on the harassee’s gender, body parts, romantic life (or seeming lack thereof), etc.

Additionally, not only can the harasser be the victim’s colleague, customer, or supervisor, but—and you may not know this—the victim does not have to be the person harassed. A person may be sexually harassed if (s)he is negatively affected by the offensive conduct if said harassment meets the aforementioned criteria.

But What About That Unwelcome Conduct You Mentioned?

The second type of unlawful harassment, quid pro quo harassment, occurs when a manager or any person with the authority to hire or fire offers or even hints to provide another employee with a promotion, more or better shifts, a raise, or even a job or other benefit if that employee will provide some kind of sexual favor. This also occurs when a manager (or other authority figure) threatens to terminate or take some adverse action against an employee if (s)he does not acquiesce to performing some kind of sexual favor.

A good example of this type of harassment would be, say, a producer like, say, Harvey Weinstein, asking an aspiring actress for five minutes in his hotel room because it pays to have a “close relationship” with him. But it does not have to rise to such mythical, Hollywood proportions. As we end 2017, remember where we started: with one company’s supervisors offering better pay, promotions, and protection from discipline—in exchange for sex. We wrote about all about it here.

Employers must work to prevent and correct such behavior.

But how? Here are some “Best Practices” for Prevention and Correction

  • Have a clear, no-tolerance sexual harassment policy in your employee handbook; ensure it is disseminated throughout your company and understood by all of your employees;
  • In that same handbook, provide a written procedure for reporting and investigating claims of unlawful harassment and follow it, documenting the process along the way. Have clear standards for what merits what kind of discipline;
  • Provide regular, interactive training so that employees can recognize, respond to, and prevent unlawful harassment (based on sex, race, age, etc.) tailored to your Training must be promoted by senior leaders to show commitment;
  • Encourage reporting of any unlawful harassment and convey, via your policies and practices, that your company prohibits retaliation; and
  • Finally, and critically, maintain a “top-down” culture of a lack of tolerance for  unlawful harassment. Doing so demonstrates commitment to employees from the C-Suite to the mailroom to maintain a culture of respect in which harassment based on protected characteristics is not tolerated in the workplace.

Any questions? Give us a call. We’re happy to chat about this.