نیازمندیها
Sexual Harassment At The Work Place: What You Need To Know
Sexual harassment is a legal term that was originally created for the sole purpose of ending harassment and discrimination against women in the workplace; the term, however, has constantly been modified and its application has extended through legislation and court decisions. Sexual harassment at work constitutes a hostile work environment and is prohibited. It is important that employees and employers alike are familiar with this body of law; social interaction in the office is enjoyable and can facilitate productivity, but costly litigation can result if employers fail to recognize and take action against behavior outside legally-defined boundaries.
Sexual harassment can occur in a variety of circumstances, including, but not limited to: a) the victim can be a man or a woman; b) the harasser can be a man or a woman; c) the victim or the harasser do not have to be of the opposite sex; d) the harasser can be the victim’s supervisor, an agent of the employer, a co-worker, or even a non-employee; d) the victim does not have to be actually harassed but so long as he or she is affected by the offensive conduct of the harasser; e) sexual harassment can happen without economic or monetary damages to the victim; f) the victim does not have to be fired or discharged; and/or g) most importantly, the conduct must be unwelcomed. Although sexual harassment may occur at the workplace, not every alleged act will be defined as a sexual harassment.
In order for a victim to succeed in his or her lawsuit based on sexual harassment, he or she must show that: 1) the victim belongs to a protected group; 2) the victim was subject to unwelcome sexual harassment; 3) the harassment complained of was based upon sex; 4) the harassment complained of affected a “term, condition, or privilege” of employment; and 5) the employer knew or should have known of the harassment and failed to take remedial action.[1] The Supreme Court of the United States has adopted a standard as a “middle path” between allowing suit for merely offensive conduct and prohibiting suit unless the conduct results in a tangible psychological injury.[2] This standard affords a cause of action under Title VII when the workplace is permeated with discriminatory intimidation, ridicule, and insult that are sufficiently severe or pervasive to create a discriminatory hostile or abusive working environment.[3]
Application of this test is both subjective and objective. Understandably, the subjective standard requires that an alleged victim have personally found the work environment abusive to the extent that it alters the condition of the employment.[4] The objective standard requires that a reasonable person would find the work environment hostile or abusive.[5] As explained by Justice Scalia in Oncale, Title VII does not provide a remedy for “[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment.”[6] Justice Scalia emphasized the importance of this requirement, as it ensures “courts and juries do not mistake ordinary socializing in the workplace-such as … intersexual flirtation-for discriminatory ‘conditions of employment.’” [7]
Under this “reasonable person” standard, whether a work environment is “hostile” or “abusive” requires evaluating the totality of the circumstances, including “the social context in which particular behavior occurs and is experienced by the target…. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing … and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”[8]
Understood properly, employers who are vigilante should not fear these types of lawsuits. One simple step to prevent the emergence of a hostile work environment is to provide a forum for employees to express concerns and document reports confidentially. Employees should be encouraged to document and report unwanted sexual advances, because mere rude behavior as an isolated event can ultimately become abusive if viewed in aggregate and over a prolong period of time. Simply put, it would behoove employers to implement a consistent procedure for dealing with harassment complaints, take all complaints seriously, investigate each complaint thoroughly, document the process, notify their attorney, and take appropriate and immediate action if necessary.
Sean S. Modjarrad, MBA, MAcc
Attorney and Counselor at Law
[1] Ewald v. Wornick Family Foods Corp., 878 S.W.2d 653, 659 (Tex. App.—Corpus Christi 1994, writ denied) (citing Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir.1982)).
[2] Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993).
[3] Id.
[4] Id.
[5] Id at 22.
[6] Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 1003, 140 L.Ed.2d 201, 208 (1998) (citing Harris 510 U.S. at 21, 114 S.Ct. at 370).
[7] Id.
[8]Id. at 81-82.
