Employer's Liability for Sexual Harassment
Bob Mann, Attorney-at-Law

If you have more than fifteen (15) employees and your business affects interstate commerce, your business is covered by Title VII of the Civil Rights Act of 1964. Interstate commerce is interpreted in the broadest possible way so that merely calling out of state might constitute "affecting interstate commerce."

Title VII strictly prohibits sexual harassment and other discriminatory acts. Sexual harassment is any kind of sexual behavior that is unwelcome and/or inappropriate in the work place, whether private, public, or educational.

Sexual harassment encompasses:

1. Verbal behavior (derogatory comments; dirty jokes - depending on a variety of circumstances; or requests constituting sexual demands or advances;
2. Visual conduct (putting up embarrassing or derogatory pictures, cartoons, written material, etc. or allowing the same to remain in place);
3. Physical conduct including unwelcome touching or brushing, etc.; and
4. Animosity that is gender based and/or a sexually charged work environment.

1. Whether the conduct was verbal or physical or both;
2. How frequently it was repeated;
3. Whether the conduct was hostile or patently offensive;
4. Whether the alleged harasser was a co-worker or supervisor;
5. Whether others joined in perpetrating the harassment; and
6. Whether the harassment was directed at more than one individual.

No one factor controls, one must look at the totality of the circumstances on a case-by-case basis.

Sexual conduct can only constitute sexual harassment if it is unwelcome. Conduct can be "unwelcome" if an employee did not solicit or incite it, or if the employee regarded the conduct as undesirable or offensive. When the evidence is conflicting to whether the conduct was welcome or unwelcome, one must again look at the totality of the circumstances on a case by case basis. Victims of sexual harassment may be male or female, and the victim does not have to be of the opposite sex. Furthermore, a victim of harassment does not have to be the person harassed but could be anyone affected by the offensive conduct. The harasser can be male or female. The harasser also can be a supervisor, a supervisor of a supervisor, a co-worker, or a non-employee.

One incident of sexual harassment, especially if it is of the "quid pro quo" type, may constitute harassment if it is linked to the granting or denial of employment or employment benefits. On the other hand, a hostile environment claim usually requires a showing of a pattern of offensive conduct; provided, however, a severe incident of harassment may be sufficient to constitute hostile environment harassment. This is particularly true when the harassment is physical. I believe the EEOC will presume that the unwelcome, intentional touching of a charging party's intimate body area is sufficiently offensive to constitute "hostile environment."

Employers should have a written sexual harassment policy and should review that policy with its supervisors and workers to the extent necessary in order to underscore the employer's position that there be no sexual harassment in the work place. A grievance mechanism should be in place. All claims of sexual harassment should be investigated promptly and in a generally fair and objective manner. Human resource personnel, in-house attorneys, and outside attorneys, can be used to investigate matters of this type. If the alleged harasser is a high level executive, it may be a good idea to hire someone from outside the company to investigate in order to avoid a claim of a whitewash, and to avoid putting the subordinate employee in a position of investigating his/her boss. Generally it is a good idea to have two investigators, one male and one female. The alleged victim should be required to prepare a full and complete written complaint containing all of his/her allegations of sexual harassment along with the date(s) of each incident, what was said, who may have witnessed the incident, etc. The complainant should understand that his/her identity will be disclosed to the alleged harasser except in those situations where the safety of the complainant may be at risk. Everyone interviewed during the source of an investigation should be advised that the interview and investigation should be kept confidential. If the alleged harasser fails to cooperate, the investigation should continue with the understanding that a failure to support one's denial of facts may be considered in evaluating the harasser's credibility. Investigators should retain full and complete notes of all interviews and should prepare a report which evidences their conclusions that harassment has or has not occurred. The report should be thorough and factual.

The United States Supreme Court currently is considering several cases in the area of sexual harassment. One of the cases under consideration is whether or not employers can be legally responsible for a supervisor's sexual harassment even though they were unaware of it. Currently the Seventh Circuit Court of Appeals, which governs Indiana federal employment law cases, has held that before an employer can be found liable for "hostile environment" sexual harassment under Title VII, it must be shown that the employer was negligent in hiring, supervision, monitoring, or the retention of the employee's supervisor. If the harasser is an employee's co-worker, the employer can be found liable if that employer knew or should have known of the harassment. The standard for employer liability under Title VII for "quid pro quo" sexual harassment by a supervisor is strict liability, even if the supervisor's threat did not result in an adverse employment action for the employee. In another case, the United States Supreme Court will decide whether an individual subjected to a "have sex with me or else" type of harassment can win damages even though he/she didn't submit to the supervisor's advances and didn't suffer any job penalties.

Each of these decisions will have important ramifications for both employers and employees. Stay tuned.

© 2001

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