Complaints of sexual harassment and sexual misconduct have dominated the news recently with allegations ranging from sexual threats, to groping, to sexual assault. While the allegations have made the news because they involve people in the entertainment industry and politics, it’s readily apparent from the thousands of stories shared using #MeToo that sexual violence and harassment remain a widespread problem. According to a recent poll, 30% of women in the workplace have experienced unwanted sexual advances from male coworkers.
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The persistence of harassment in the workplace is borne out by the increasing numbers of sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC). The EEOC reports that 12,860 charges of sexual harassment were filed with the agency in 2016, up from 12,573 charges filed in 2015. The numbers represent charges alleging sexual harassment and do not include charges alleging other kinds of unlawful harassment (based on race, color, religion, national origin, etc.).
The EEOC and the courts define sexual harassment as unwelcome behavior of a sexual nature that explicitly or implicitly affects a person’s employment, unreasonable interferes with work performance, or creates an intimidating, hostile, or offensive work environment.
Generally, the more severe and offensive the conduct is, the less frequently it must occur before it constitutes sexual harassment. Some courts have found that sexual harassment can occur with a single offensive act if the conduct is sufficiently severe, particularly when there’s physical contact. But less offensive acts, if repeated frequently, can add up to sexual harassment.
Employers are strictly liable for sexual harassment by a supervisor if the harassment results in a tangible employment action (e.g., the harassed employee is fired or demoted). But if there’s no such action, an employer can defend itself by showing that it exercised reasonable care to prevent and promptly stop harassment and that the employee alleging harassment failed to take advantage of any preventive or corrective action provided by the employer.
Employers recognize that harassment is costly in terms of monetary payments, disruption in the workplace, retention of good employees, and reputation. So, what can employers do to prevent workplace harassment?
- Management sets the tone. A company culture that doesn’t tolerate sexual harassment—even when committed by employees who make big money for the employer or work at high levels in the organization—is the key to preventing harassment from occurring in the first place.
- Encourage employees to come forward with complaints. Sexual harassment is underreported in the workplace for many reasons, including fear of retaliation, being labeled as a troublemaker, or having an allegation minimized (e.g., being treated as someone who’s “overly sensitive” or who “can’t take a joke”).
- Create procedures. To help employees come forward with complaints, have a complaint procedure in place—make sure the procedure is easy to follow and understand, is communicated clearly to all employees, and provides options for employees to report harassment (i.e., don’t require employees to report harassment to their supervisors—who may be committing, contributing to, or ignoring the harassment).
- Create policies. Have and enforce a sexual harassment policy that not only prohibits unlawful harassment but that also prohibits inappropriate conduct in the workplace—this allows an employer to take disciplinary action against an employee before his or her inappropriate conduct rises to the level of unlawful harassment—to nip the potential harassment in the bud before it becomes a legal problem for the employer.
- Train ALL of your employees. Provide harassment prevention training to all employees, not just supervisors—employers are liable for harassment by coworkers if the employer knew about the harassment and failed to take appropriate action to stop it.
 Joan S. Farrell, JD, is a Legal Editor for BLR’s human resources and employment law publications. Ms. Farrell writes extensively on the topics of workplace discrimination, unlawful harassment, retaliation, and reasonable accommodation. She is the editor of the ADA compliance manual—ADA Compliance: Practical Solutions for HR. Before coming to BLR, Ms. Farrell worked as in-house counsel for a multistate employer where she represented management in administrative matters and provided counseling on employment practices.
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