EMPLOYMENT LAW: SEXUAL HARASSMENT IN THE WORK PLACE
"I was just kidding and she was laughing too." We are all too familiar with this scenario - a simple joke, gesture, or nudge all in the innocence of fun. But is it simple, innocent or fun? The U.S. Department of Labor estimates that American businesses lose over $1 billion annually in absenteeism, low morale, and employee replacement costs due to sexual harassment. It is even more alarming to note that this figure does not include judgments or settlements in civil court cases. There has been an explosion in sexual harassment civil court cases in recent years. Women are no longer sitting back and "bearing" the sexual harassment. Instead, they are coming forward and reporting the harassment. Employers must now educate themselves and their employees on how to prevent sexual harassment in the work place. This article examines sexual harassment from both the employer's and employee's perspectives.
II. What is Sexual Harassment?
Sexual harassment is defined as the unwelcomed verbal or physical conduct or communication of a sexual nature, including sexual advances and requests for sexual favors. The harassment however does not necessarily always have to include sexual overtones, for example, intimidation and sexual hostility towards women because of their sex is a form of sexual harassment. Sexual harassment typically involves more than one isolated incident of unwelcomed conduct or communication. To prove that the harassment was "unwelcomed", the employee must show that she did not solicit or invite the sexual harassment and that the harassment was offensive or undesirable to her. Sexual conduct which was initially welcomed may still be actionable in situations where the harassed employee is retaliated against for refusing the once welcomed sexual conduct. There are two types of sexual harassment: (1) quid pro quo, meaning "something for something"; and (2) hostile work environment. Typically in quid pro quo lawsuits, the harassment is by a supervisor or manager, and the conduct involves actual physical contact. Quid pro quo sexual harassment occurs whenever an individual explicitly or implicitly conditions a job, job benefit, or the absence of a job detriment, upon an employee's acceptance of the sexual conduct. Hostile work environment harassment encompasses a much broader range of conduct. For hostile work environment harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the employment and create an abusive work environment. The conduct frequently involved in hostile work environment harassment is sexual advances, requests for sexual favors, dirty pictures, dirty jokes, etc. Courts typically require multiple offensive incidents before an employee will prevail in a hostile work environment lawsuit.
III. Examples of What is and is not Sexual Harassment
The following fact scenarios were found to be sexual harassment: 1. Where pornographic magazines, pictures and calendars were displayed in the work place, the female employee was offensively touched by another employee and offensive sexual comments were made to and about her. 2. Where the male coworker performed the following conduct over a period of time: he put his
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hands on the female employee's hips and said "umm . . . I'd like to have some of that . . ."; he shot the employee in the hip with several rubber bands; he hiked his pants so that the outline of his genitals were visible; he passed obscene cartoons around the office; and he whacked the employee on her hip with a clip-board. Where the supervisor grabbed a female employee, tried to kiss her, rubbed his body across hers, exposed himself to her and made sexual comments to and about her. Where the owner of company subjected a female employee to repeated sexual comments, sexual inquiries and demonstrated sexual devices in the workplace. Where the secretary to general manager of...
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