As sexual harassment allegations surface from a well-funded ride- sharing service, employers are reminded that addressing a claim of sexual harassment is a difficult and sensitive situation. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.”
The EEOC defines two types of sexual harassment under Title VII of the Civil Rights Act - quid pro quo and hostile work environment. Although Title VII generally applies to employers with 15 or more employees, many states have similar anti-harassment laws that apply to smaller employers. Quid pro quo, or “one thing in return for another,” occurs when submission to or rejection of unwelcome sexual conduct by an individual is used as the basis for employment decisions affecting such individual.
For an employee to support an allegation of quid pro quo harassment, the harasser must have supervisory authority and the power to grant or refuse employment terms affecting the employee. Hostile work environment occurs when the conduct "unreasonably interferes with an individual's work performance" or creates "an intimidating, hostile or offensive working environment." Unlike quid pro quo harassment, a hostile work environment can result not only from the actions of a supervisor, but also an agent of the employer, a co-worker or a non-employee.
Employers often believe that sexual harassment is limited to unwelcome physical advances of a sexual nature when it actually includes any unwelcome verbal, written, physical, nonverbal or visual behaviors based on a person’s sex. The alleged victim and harasser can be either a man or a woman, and they can be the same sex. Several examples of harassment include:
Employees take cues from management on what constitutes acceptable behavior in their workplace. Employers can shape their workplace culture by adopting and enforcing policies requiring employees to treat their colleagues with respect, and educating managers and employees on proper conduct and conversation in the workplace. In many instances of sexual harassment, the accused does not realize their behavior is unwelcome, and they are unaware that their actions or words not only make the victim uncomfortable but also could constitute sexual harassment. Educating employees on appropriate behavior and instructing managers on recognizing and intervening when inappropriate behavior occurs will lead to quicker resolution of issues and limit liability.
When an employer becomes aware that sexual harassment may have occurred, it is crucial to act immediately. Even if one lower-level supervisor is aware of the harassment, this could still be construed as the employer having knowledge and could lead to employer liability. It is important to train all managers how to report, investigate and address allegations of sexual harassment. Victims frequently do not make formal complaints, as they may be embarrassed to discuss the incident, think they will not be taken seriously or fear retaliation from the accused.
If an employer has information that indicates sexual harassment may have occurred, the employer should not wait for a formal complaint before investigating the circumstances. The employer should talk to the employee who may have been harassed and thank them for sharing information. The employer should commit to a prompt follow-up while regularly checking in with the alleged victim. The employer should also emphasize that any behavior that violates company policy won’t be tolerated and is subject to disciplinary action.
Here are steps all employers should consider taking to limit liability from claims of sexual harassment:
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