Sexual Harassment - Supervisor Briefing

Author: Sahara Pynes, HR Solutions Group/Training Mavens

Overview

This Supervisor Briefing examines the law and best practices regarding sexual harassment in the workplace, as follows:

1. Legal Definition of Sexual Harassment
2. Employer Liability
3. Prevention
4. Conducting Investigations
5. Test Yourself

Legal Definition of Sexual Harassment

Supervisors need to be aware of the legal definition of sexual harassment. Sexual harassment is prohibited on the federal level by Title VII of The Civil Rights Act of 1963 and by many state laws. There are two types of sexual harassment generally protected by law:

Quid Pro Quo Harassment

• Submission to or rejection of unwelcome sexual advances, or requests for sexual favors is made explicitly or implicitly a term or condition of employment; or
• Submission to or rejection of such conduct is used as a basis for tangible employment decisions.

Hostile Work Environment Harassment

• A series of unwanted sex-related actions or remarks that are so pervasive they have the effect of altering conditions of employment or creating an intimidating work environment; or
• One singular sex-related act that is so severe or offensive, it has the effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Establishing a Sexual Harassment Claim

In order to file a claim of sexual harassment, the employee must be:

1. A member of a statutorily protected class;
2. Subjected to unwelcome verbal or physical conduct related to his membership in that protected class;
3. The unwelcome conduct complained of was based on his membership in that protected class; and
4. The unwelcome conduct either:
   1. Affected a term or condition of his employment; and/or
   2. Had the purpose or effect of unreasonably interfering with his work performance; and/or
   3. Created a hostile work environment
      (Conduct that is sufficiently severe or pervasive to create a work environment that a reasonable person would consider intimidating, hostile or abusive.)

Some examples of conduct that, if part of a pervasive pattern of abuse, could constitute sexual harassment:

• Jokes, innuendos or gestures of a sexual nature;
• Sexually charged computer programs, emails or messages;
• Language or behavior demeaning to a particular sex (women or men);
• Compliments about an individual's body of a sexual nature;
• Repeated requests for a date despite refusals;
• Unwelcome sexual advances;
• Requests for sexual favors;
• Questions or comments about personal or intimate sexual matters;
• Hugs, kisses, neck rubs, or back rubs;
• Deliberately brushing up against someone else;
• Sexual epithets or name-calling;
• Sexually intimidating behavior or ridicule;
• Objects, pictures, photographs, or cartoons of a sexual nature; or
• Other verbal or physical harassment of a sexual nature.

Employer Liability

In general, employer liability in sexual harassment cases depends upon three factors:

1. Who committed the harassment;
2. Whether the harassment resulted in a tangible employment action; and
3. The employer's response to the harassment.

Who Committed the Harassment

Employer liability for harassment differs depending on whether the harasser is a supervisor or a non-supervisor, which could include a co-worker or a third-party.

Supervisory Harassment

If the harasser is a supervisor, it is far more likely that an employer will face liability for the supervisor's actions. The most important issue to an employer's defense is whether a tangible employment action occurred. If a tangible employment action occurred, an employer will be strictly liable for the actions of the supervisor. The reason for this liability is because actions and knowledge of a supervisor are imputed to the employer.

Non-Supervisory Harassment

When the harasser is a non-supervisor, an employer is liable if it knew or should have known of the misconduct, unless it can show that it took immediate and appropriate corrective action. Non-supervisors include lower level employees and third-parties, including:

• Co-workers;
• Customers;
• Vendors; and
• Independent contractors.

An employer may be deemed to be on notice of an employee's harassment when the supervisor or other management employees are aware of prior instances of harassment of others by the same individual, even if the alleged victim never complained. Alternatively, an employer may receive notice from someone other than the actual victim, such as a co-worker that harassment is occurring. Accordingly, supervisors need to be proactive when they suspect harassment has occurred and take steps to remedy the situation.

Tangible Employment Action

A tangible employment action occurs when a supervisor's harassing conduct results in a significant change in employment status. Tangible adverse employment actions may go well beyond pure terminations, and can include:

• Failure to promote;
• Demotion;
• Formal discipline, such as suspension;
• Undesirable change in physical office space
• Undesirable reassignment or transfer;
• Major change in benefits;
• Change in compensation;
• Change in work assignment or hours; or
• Poor performance evaluation.

Tangible employment actions usually:

• Require an official act of the employer;
• Are documented in employer records;
• Is subject to review by higher level supervisors;
• Requires the formal approval of the employer; and/or
• Uses the employer's internal processes.

A tangible employment action is the type of action a supervisor normally is empowered to take and its effect on the victim must be tangible.

Employer's Response to the Harassment

If no tangible employment action is involved, then the employer can avoid liability by establishing an affirmative defense, which is comprised of two elements:

• That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
• That the employee unreasonably failed to take advantage of any preventative and corrective opportunities provided by the employer.

Thus, the employer must prove the existence of a harassment policy with a complaint procedure, and that the employee unreasonably failed to use those procedures.

Prevention

Draft and Implement a Harassment Policy

The best way for an employer to prevent harassment claims is to develop and implement a harassment policy. The existence of a harassment policy is a simple and effective way to set expectations for workplace behavior. Employers can use employee handbooks to ensure all employees are aware of the harassment policy and agree to abide by its terms. Because supervisors have an obligation to the employer to report any knowledge of harassment and take steps to remedy the harassment, supervisors need to know the policy contents. Generally, such policies will include:

• A Statement of Zero Tolerance
• A Description of Conduct That Constitutes Harassment
• A Complaint Procedure
• A Statement That the Employer Will Investigate Complaints Thoroughly and Promptly
• A Statement Regarding the Confidential Nature of the Investigation
• A No-Retaliation Statement
• Disciplinary Statement
• Formal Employee Acknowledgement and Consent
• Statement of Formal Training

In addition, supervisors should be aware of the following issues in connection with preventing acts of sexual harassment.

• Liability and Costs. Supervisors need to understand that they are obligated to report all acts to report harassment to the employer. An individual supervisor can be subject to liability for engaging in unlawful behavior or even failing to rectify unlawful behavior.
• Non-Economic Costs. Supervisors should be mindful that harassment lawsuits can also contribute to declining staff morale, increased employee turnover, distraction from business goals, potential embarrassment and negative reputation for individual employees or the employer as a whole.
• Prevention Techniques. Supervisors and managers need to know how to handle employee interactions before a complaint of harassment arises.
• Investigations. Supervisors should have a firm understanding of the steps to take when an employee reports a claim of harassment. Supervisors should be aware of their role in the investigation and their responsibilities to the employer to report any known unlawful activities to a designated employer official and/or HR.

Conduct Training

Supervisors should work with the employer to schedule employee trainings periodically. Such trainings should be conducted at least on a biannual basis and more frequently if employee turnover is high. An effective training session should last a minimum of one hour and include:

• An Introduction on Why Training is Important
• Course Agenda and Expected Results
• Definition of the Workplace
• Definition of Sexual Harassment
• Other Unlawful Harassment and Discrimination
• Employer Policy and Complaint Procedure
• No-Retaliation Policy
• Remedies

Conducting Investigations

When a supervisor receives notice of a potential violation of the employer's harassment policy, the supervisor should work with employer to take prompt remedial action reasonably calculated to end the harassment. Employers must commence an investigation whether the complaint was received from the alleged victim, a witness, a supervisor, or even through word of mouth.

The role a supervisor may play in an employer investigation will vary. Generally, an effective investigation may include:

• Interim Measures. It may be necessary for an employer to take interim measures, such as a temporary transfer or a non-disciplinary leave of absence with pay, to avoid potential harassment during an investigation. Any changes to an employee's work situation can be perceived as retaliatory. Accordingly, the employer should communicate that its actions will prevent continued misconduct before concluding an investigation.
• Choosing a Proper Investigator. The employer must choose a neutral, objective, and properly trained investigator. Remember that the investigator must be a credible and effective witness should litigation result. Accordingly, it is not advisable that the supervisor conduct the investigation as employers need to consider an unbiased investigator to ensure the integrity of the investigation if litigation might result.
• Conducting Interviews. An employer must interview the complainant, the alleged wrongdoer, and any relevant witnesses. Ask each interviewee the who, what, why, when, how in an effort to piece together what happened. Frequently, harassment complaints rest on a he said, she said story where it may be difficult to assess credibility. If available, use witnesses to corroborate and clarify facts given by the complainant and the alleged wrongdoer.
• Determining Credibility. Because there are frequently conflicting versions of relevant events, an employer must weigh each party's credibility. In assessing credibility, the investigator should consider the following: whether the facts make sense, whether there is a motive to be untruthful, whether any facts can be corroborated by external evidence or witnesses. Supervisors of both the alleged harasser and victim may be helpful in providing background information or other credibility-related assessments.
• Reaching a Determination and Implementing Corrective Measures. At the conclusion of an investigation, an assessment of what factually occurred and corresponding disciplinary action against alleged wrongdoer may be necessary. Generally, the corrective action should reflect the severity of the conduct and may range from a reprimand to discharge. Employers do not need to provide the complainant information about the disciplinary measures taken against the accused. This information should be treated as confidential, just like other disciplinary measures.
• Effective Documentation. During an investigation, the employer should keep documentation of each step in the process, including determinations of credibility and the disciplinary outcome of the investigation.

However, neither the employer nor a supervisor should document the conclusion that unlawful harassment occurred. If this is the conclusion, outside counsel should be consulted immediately.

Test Yourself

1. An employer can be liable for sexual harassment conducted by:
   1. A supervisor.
   2. A co-worker.
   3. A customer.
   4. All of the above.
2. Carrie and Sam work in the same department. They are both single. Sam asks Carrie to go out on a date but she declines. Sam also left a Valentine's card for Carrie on her desk, which she returned to Employee. Ever persistent, Sam asks Carrie to go out on a date six more times over the course of the next three months. Sam's conduct makes Carrie feel very uncomfortable. Does Sam's conduct constitute sexual harassment?
   1. No, because there was no tangible employment action.
   2. No, because neither Sam nor Carrie is a supervisor.
   3. Yes, because taken together, Sam's actions are so pervasive they have the effect of altering conditions of employment or creating an intimidating work environment.
   4. No, because a reasonable person would not find Sam's actions offensive.
3. In order for an employer to establish an affirmative defense against harassment by a non-supervisor, the employer must show:
   1. The employee failed to complain in accordance with the employer's policies.
   2. The supervisor knew about the harassment.
   3. The harassment only happened once.
   4. The harasser was the same-sex as the victim.

Answers

1. d. Employer liability extends from supervisors and coworkers to vendors, clients and independent contractors.
2. c. Sam's actions will constitute sexual harassment under the rubric of a hostile work environment claim. Sam engaged in a series of unwanted sex-related actions or remarks that are so pervasive they have the effect of altering conditions of employment or creating an intimidating work environment. If it had only been one or two date requests, perhaps the objective, reasonable person would not view Sam's actions as offensive, but in the current scenario, his acts are sufficiently pervasive to constitute sexual harassment.
3. a. An affirmative defense to liability is available only in cases of non-supervisory harassment where an employer either did not know about the harassment or took reasonable precautions to rectify it. Thus, when a supervisor is aware of the harassment, the employer may not utilize the affirmative defense. Whether the harasser was the same-sex is irrelevant. Whether the harassment was severe or pervasive in creating a hostile work environment does not play a role in the availability of the affirmative defense.