It seems like every day there is a new allegation of sexual harassment in the news. Employers wanting to take steps to protect their employees from harassment and themselves from liability have asked: What constitutes sexual harassment? Generally speaking, as defined by the Equal Employment Opportunity Commission (EEOC), sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Given the current climate, employers should be asking what this means in real terms. There are two types of actionable sexual harassment: 1) hostile work environment and 2) quid pro quo. For the purposes of this article, we will focus on what types of behavior may fall under hostile work environment sexual harassment. Stay tuned for a discussion on quid pro quo sexual harassment soon.
In order to establish a claim of hostile work environment sexual harassment, the victim must show: (1) that the harassment was unwelcome; (2) that the harassment was based on sex; (3) that the harassing conduct was sufficiently severe or pervasive to affect the terms and conditions of employment; and, (4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action. No matter how severe or pervasive the conduct, alleged harassment is not actionable it if does not satisfy each of these four prongs. For example, courts have held that harassing or crude conduct directed toward employees as a whole, regardless of gender, is not based upon sex and is not actionable. What constitutes hostile work environment sexual harassment really requires a case-by-case analysis. However, courts have provided some guidance.
In Harter v. Chillicothe Long-Term Care, Inc., 2012 WL 1997821 (4th Dist. 2012), the Court held that comments by a male employee made over an eighteen month period which included: discussing breast milk during a lunch conversation with employees; speaking about dating an “easy” girl in high school; engaging in a conversation regarding a female resident’s disfigured genitalia; referring to the main character in Dr. 90210 touching women’s breasts; mentioning a female stripper placing her crotch on his face; recounting his wife performing sex acts on him; suggesting that prostitution should be legal; and, referring to another employee as “eye candy” did not rise to the level of actionable sexual harassment. The Court reasoned there were only a handful of incidents over the eighteen month period, the comments did not interfere with the plaintiff’s employment and while crude, the comments were made to both male and female employees and did not satisfy the elements of the hostile work environment test.
In contrast, the actions in Payton v. Receivables Outsourcing, Inc., 163 Ohio App.3d 722 (8th Dist. 2005), were found to create an issue of fact for the jury to decide whether hostile work environment sexual harassment existed. There, the employee worked for the company for six weeks and alleged she was harassed by a co-worker. The employee claimed that her co-worker told her she smelled good and asked her out, which she declined. In another incident, the co-worker chimed in on a conversation with another employee and stated that he wished he met the victim sooner and that he wanted to take a ride with her on his motorcycle. He also mentioned that she had large breasts and he liked large breasts. The last alleged incident occurred as the employees were clocking out and the victim put on a baseball cap. As she did so, her co-worker told her she looked like a “strawberry” which is a slang term for women who exchange sex for cocaine or money to buy cocaine. The plaintiff told him to shut up and left. He followed her and as they were stopped at a stop light in their separate cars, he offered the plaintiff $10 to perform a sex act. The Court reasoned that even though some of the alleged incidents took place outside of working hours, they were unwelcome, directed solely to the victim, were based on sex, and were severe or pervasive enough for the claims to be heard by a jury.
So, getting back to the real question, what should employers do and how can they protect against claims of hostile work environment sexual harassment? While there is no comprehensive list of actions that do or do not constitute hostile work environment sexual harassment, employers can make sure their employees are educated to identify, report, investigate and take appropriate action on any possible issues. Education is the best defense.
- Make sure your company’s sexual harassment policy is inclusive and up-to-date.
- Make sure your employees and supervisors are trained on the company’s sexual harassment policy.
- Make sure supervisors know what to do when they receive an allegation of sexual harassment.
- Make sure appropriate action is taken following an allegation and/or investigation.
- Make sure you foster a positive work environment for all employees.