The Equal Employment Opportunity Commission's (EEOC) guidelines
recognize two different types of sexual harassment, the quid pro quo
type and the hostile environment type.
A.
Quid pro quo harassment occurs when submission to unwelcome sexual
conduct is made a term or condition of an individual's employment
[29 CFR 1604.11(a)(2)]. This is the easiest form of sexual harassment
to define and identify, although, due to the private nature of conversations
which form the basis for the charge, the most difficult to establish
through conclusive, third-party proof.
B.
Hostile environment harassment exists if unwelcome sexual conduct
"unreasonably interferes with an individual's job performance"
or creates an intimidating, hostile or offensive work environment
[29 CFR 1604.11(a)(3)]. As might be expected, the EEOC's regulation
is very open-ended and, therefore, it is difficult to define the full
range of specific behaviors which may constitute sexual harassment.
In these cases, it is essential that a detailed and elemental analysis
of the conduct complained of be performed against the individual ingredients
contained within the cited section.
(1)
Analysis should address the following:
(a)
Was the conduct complained of that of an employee or supervisor
of the organization employing the complainant?
(b)
Was conduct complained of unwelcome, as that term has been defined
by the courts?
(c)
Was conduct complained of sexual in nature?
(d)
Did conduct complained of interfere with the complainant's
job performance?
(e)
Was the interference arising out of conduct complained of unreasonable
in degree?
(2)
A hostile environment claim can be brought by an employee who is
offended by the overtly sexual nature of a workplace.
(3)
A hostile environment claim can also be brought by an employee who
loses job opportunities or benefits to individuals who obtain those
opportunities or benefits by submitting to sexual advances or requests
for sexual favors [29 CFR 1604.11(g)]. The EEOC takes the position
that "isolated incidents of preferential treatment based on consensual
romantic relationships" are not unlawful. However, if favoritism is
widespread it can constitute hostile environment harassment. In addition,
an employee denied benefits which are conferred on a paramour can
claim that he/she was harmed by the sexual overtures made to the paramour
[EEOC Policy Guidance on Employer Liability for Sexual Favoritism
(1/12/1990)].
(4)
The policy guidance directs that the circumstances must be viewed
as a whole.
(a)
If there is an indication of unwelcomeness, the charging party's
claim will be strengthened if a contemporaneous complaint of harassment
was made.
(b)
Use of sexually explicit language does not negate a claim that
sexual conduct is unwelcome, but it may be considered in deciding
whether conduct was unwelcome.
(c)
Sexually aggressive behavior such as discussions of sexual fantasies
and inquiries into the sex lives of coworkers may indicate welcomeness.
(d)
General character evidence and evidence of sexual behavior with
individuals other than the harasser is given little weight in determining
welcomeness.
(5)
When is an environment hostile under the EEOC's guidelines?
The March 19, 1990, Policy Guidance also discusses identification
of a hostile environment. In order to constitute harassment, behavior
must be sufficiently severe that it alters the terms of employment.
"Sexual flirtation or innuendo even vulgar language that is trivial
or merely annoying," is insufficient.
(6)
Unless conduct is quite severe, isolated incidents of sexual conduct
or statement do not create a hostile environment. Generally a pattern
of conduct is required.
A.
Quid pro quo harassment. By definition, quid pro quo harassment involves
actions by a supervisor because the conduct at issue is the granting
or withholding of employment benefits based upon a subordinate's
response to sexual overtures. An employer is always liable for quid
pro quo harassment by its employees.
B.
Hostile environment harassment.
(1)
Direct liability. If the employer knew or should have known of the
employee's conduct and failed to take adequate action immediately,
the employer is directly liable.
(2)
Imputed liability. If the harasser was acting within the scope of
his/her employment or if the employee had apparent authority to perform
the acts done, then the employer will be held liable. Liability on
either basis can be precluded if the employer has a proper policy
prohibiting sexual harassment which it enforces effectively.
The following are defenses to claims of sexual harassment:
A.
The sexual overtures were not unwelcome.
B.
The behavior was not pervasive.
C.
The conduct was not sexual harassment. Using the reasonable person
standard, this defense can be made out if the behavior challenged
is such that a reasonable person would not find it sexually offensive.
D.
The employer is not liable for the conduct alleged. In hostile environment
cases, an employer can avoid liability for the acts of employees and
supervisors if the employer has a proper policy prohibiting sexual
harassment in place and takes immediate, effective action to stop
harassment and to prevent further instances once the employer learns
of harassment.
A.
A well-planned program designed to eliminate sexual harassment can
be extremely important in determining the outcome of harassment cases.
Such a program should contain the following elements:
(1)
A policy. Each employer should have a written policy which unequivocally
prohibits sexual harassment, explains what sexual harassment is and
explains what the consequences of sexual harassment can be. The policy
should be publicized and distributed.
(2)
Education. Supervisors and employees should be trained so that they
can identify inappropriate workplace behavior and understand how to
respond to complaints.
(3)
An adequate complaint procedure. A successful complaint procedure
which requires quick action, thoroughness and confidentiality should
be in place. It must contain elements designed to protect both the
charging party and the charged party, and it must not require that
the employee make reports of sexual harassment only to the employee's
direct supervisor.
B.
Elements of a policy prohibiting sexual harassment include the following:
(1)
An explanation in clear, nonlegalistic fashion of what sexual harassment
is.
(2)
A blanket prohibition against sexual harassment in any form.
(3)
An explanation of the way in which an employee who believes he/she
has been harassed should complain. This procedure should identify
the persons to whom a report of harassment can be made. Several alternative
routes for reporting should be given so that the complaining party
is not potentially required to report acts of sexual harassment to
the harasser.
(4)
A description of the employer's policy for investigating complaints.
(a)
The investigation procedure should state the time frame within
which an investigation will be done.
(b)
The investigative procedure should state that the investigation
will be conducted privately to the extent reasonably possible. In
spite of the privacy aspect of the investigation, the accused employee/supervisor's
immediate superior should be apprised of the complaint and pending
investigation so that ongoing supervision may continue with full awareness
of the event.
(c)
The investigation procedure should state that retaliation will
not occur. Except in the most egregious circumstances, the complainant
should not be transferred in response to a complaint.
(d)
The investigation procedure should explain what type of information
will be provided to the charging party at the conclusion of the investigation
(e.g., the charging party will be told of the outcome) and what will
be done with the information from the investigation (e.g., information
developed will be kept in the parties' personnel files or information
developed will be kept in a file separate from the parties' personnel
files).
C.
How to investigate a discrimination charge.
(1)
Who should conduct the investigation?
(a)
An attorney. (Attorney involvement creates the possibility for
protection of the results of the investigation through both the attorney-client
privilege and the work product doctrine. Keep in mind that not all
work done by an attorney is privileged. Work which is purely investigative
may not be.)
(b)
A human resources professional (if directed by the attorney
in gathering information to be used by the attorney in litigation,
can also be a privileged fact gatherer).
(c)
If a supervisor conducts the investigation, make certain that
the conduct of the supervisor is not implicated in the charges made
lest the entire investigation results be tainted.
(2)
Factors to consider in choosing an investigator include the following:
(3)
Process of the investigation include the following:
(a)
Prepare a list of each charge made by the charging party and,
for each charge, a list of each witness.
