Sexual Harassment: You’d Think We’d Learn

A supervisor makes sexually suggestive comments to an employee regarding the employee’s clothing and how the employee’s body looks in the chosen clothing. Or the supervisor suggests that the two should have engaged in a sexual relationship and that if it had happened, maybe the employee would have advanced at the workplace.

If you think that these details are ripped from the headlines of the 1960s, think again. It’s still happening today, leaving many wondering: Haven’t we learned anything?

Throughout the years, the law around sexual harassment claims has evolved, but the facts haven’t changed much. In the above scenarios, swap out men and women in any role, and you still have the basic underpinnings of legally recognized and prohibited sexual harassment.

Men can sexually harass men and women, and women can sexually harass women and men, though it took court cases to cement these otherwise obvious prohibitions. Most recently, in a case out of Pennsylvania decided in November 2016, the Federal District Court for the Western District of Pennsylvania held that Title VII prohibits discrimination on the basis of sexual orientation. Title VII now officially prohibits harassment based on an individual’s views of what “it means to be a man or a woman.”

In Pennsylvania, both state and federal laws prohibit sexual harassment. Title VII, the federal statute, applies to employers with 15 or more employees. The Pennsylvania Human Relations Act applies to employers with four or more employees.

Small businesses with few employees often forget about the pesky PHRA and wrongfully believe they are immune from discrimination claims. In both large and small workplaces, however, sexual harassment can render an employer liable to an employee.

What constitutes sexual harassment? Hostile, abusive, or offensive conduct or unwelcome sexual advances undertaken by a supervisor (whether or not that supervisor supervises the victim), a co-worker, or even a client or customer. Prohibited conduct may be directed at a member of the same or opposite sex and may be based on an employee’s sexual orientation or gender identity.

The law does not prohibit simple teasing, offhand comments, or non-serious, isolated incidents, but seeks to protect employees from pervasive harassment that interferes with the employee’s employment.

The EEOC and PHRA generally recognize two types of claims: quid pro quo and hostile work environment.

An employee has a quid pro quo claim where a supervisor either sexually harasses the employee or pressures the subordinate employee to tolerate harassment as a condition of maintaining employment or obtaining further job benefits.

An employee has a hostile work environment claim where either a co-worker or superior has harassed the employee, and the employer knew or should have known about the harassment and failed to take corrective measures. The unwelcome conduct must create a severe or pervasive hostile environment.

An employee other than the victim also has a claim when the conduct offends that employee. When a supervisor perpetrates the harassment, the employee potentially has both a quid pro quo and hostile work environment claim.

Training, education, and a strong anti-harassment policy will help an employer prevent sexual harassment claims, but they alone will not shield an employer from liability for an employee’s monetary losses and pain and suffering caused by sexual harassment. In certain instances, an employer may even be assessed with punitive damages in addition to these compensatory damages.

What can an employer do to hedge its liability?

Have a strong anti-harassment policy and educate all employees on the employer’s zero-tolerance stance toward discriminatory behavior. Instruct supervisors to not engage in and to watch for harassing behavior. Train employees on what constitutes harassment and emphasize the potential ramifications should employees violate the policy. Establish a complaint procedure that includes a prohibition against retaliation. Then, enforce the policy.

If an employee makes a claim of harassment, take it seriously and investigate the claim. If the claim has merit, take steps to remedy the harassment that are proportionate and protect the complaining employee. Do not retaliate against an employee for making a claim of sexual harassment.

If you, as an employee, suffer harassment, tell the harasser that the conduct is offensive and inappropriate. Perhaps unsurprisingly, many harassers do not believe that their conduct is offensive.

Tell your immediate supervisor about the behavior. Review the employer’s policies and also follow any established complaint procedure. If your immediate supervisor does not correct the behavior, escalate your complaint to the next level of management.

Along the way, protect yourself by documenting everything: the instances of harassment, when and how you informed management of the offensive conduct, and any responses you received. While it is unlawful for an employer to retaliate against an employee who lodges a complaint, it happens. Document any retaliation as well.

Finally, if the harassment persists, you are retaliated against, or you otherwise suffer an adverse employment action, you can file a complaint with the Equal Employment Opportunity Commission, the Pennsylvania Human Relations Commission, or both, depending on the size of your employer.

You must file your complaint within 180 days (PHRC) or 300 days (EEOC) from the harassment, so act promptly. You can file a complaint on your own or you can seek the assistance of an experienced attorney. Many attorneys will help you with a sexual harassment claim on a contingent-fee basis so you do not incur attorneys’ fees initially.

While you’d think that a decades-long prohibition on sexual harassment would help prevent inappropriate conduct, it hasn’t. Despite legal ramifications, policies, training, and education, employers and employees often find themselves faced with all-to-familiar fact patterns of harassment. BW

Melissa L. Kelso, Esq., is a managing attorney with Kelso Law, LLC. She focuses her practice in the areas of civil litigation, labor and employment, municipal law, business and commercial, and real estate. Learn more are www.kelso-law.com.