August 21, 2006
Author: , Esquire

With sexual harassment lawsuits on the rise, both supervisors
and employees should know what qualifies as sexual harassment and how to avoid it.

Sexual harassment suits are one of the fastest growing categories of litigation in the country. Both the Equal Employment Opportunity Commission, the Federal agency charged with investigating such claims, and the Federal courts see large numbers of sexual harassment claims. Given the prevalence of such claims, both supervisors and employees should know what qualifies as sexual harassment and how to avoid becoming a victim or an accused.

What is Sexual Harassment?
Sexual harassment is any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile, or offensive working environment. A sexual harasser can be male or female and the U.S. Supreme Court recently held that there can be same sex sexual harassment (i.e., a man harassing another man or a woman harassing another woman).

Sexual harassment is a form of sex discrimination and is a violation of Federal law (Title VII of the Civil Rights Act of 1964) as well as the Pennsylvania Human Relations Act. There are two types of sexual harassment: quid pro quo and hostile environment.

Quid Pro Quo Sexual Harassment
Quid pro quo is a Latin phrase that means "something for something." In the area of sexual harassment, quid pro quo harassment occurs when someone in a position of authority makes unwelcome advances or requests for sexual favors and submission to or rejection of such conduct becomes the basis for employment decisions. For example, a male supervisor tells a female employee that he will put her in line for a promotion if she goes on a date with him or, if she refuses, she will be demoted. A quid pro quo case requires proof that an employer conditioned a tangible job benefit or privilege upon submission to a form of sexual blackmail.

Hostile Environment Sexual Harassment
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute hostile environment sexual harassment when such conduct has the effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile, or offensive working environment. Examples of actions which could cause a hostile environment include unwelcome advances or touching, obscene sexual or suggestive comments or gestures, obscene jokes, pornographic materials visible in the workplace, or abusive behavior that is directed at members of one gender and not the other.

Conduct does not necessarily have to be overtly sexual in nature in order to be unlawful or discriminatory. Even though an offender's behavior may seem neutral on its face, it can be discriminatory if it can be proven that it is the product of a discriminatory motive.

Factors considered in determining if an environment is hostile include:

1. The frequency and severity of the conduct;
2. Whether it is physically threatening, humiliating or merely offensive;
3. Whether the harasser was a co-worker or supervisor; and,
4. Whether the conduct interfered with the employee's work performance.

Generally, the courts require a pattern of offensive conduct rather than isolated incidents to find that a hostile working environment exists.

Employer Liabilities
The U.S. Supreme Court has established parameters for determining when employers will be held liable for harassment at the hands of their employees. If the harassment results in tangible employment action, such as demotion, termination, reassignment, or failure to promote, the employer will be held liable.

However, if no tangible employment action results, the employer can avoid liability if it can prove that it exercised reasonable care to prevent and correct any sexually harassing behavior (i.e. implementing a sexual harassment policy, conducting training on the policy, and promptly and thoroughly investigating complaints) and the plaintiff-employee unreasonably failed to take advantage of the preventative or corrective opportunities provided by the employer, or to avoid the harassment by other means.

Only an employer can be held liable under the Federal statute, but other persons, such as the individual harasser, may be held liable under other legal theories, including assault and battery if they fit the facts of the case. Under some circumstances, individuals who contribute to unlawful discrimination by an employer can be held liable under the Pennsylvania Human Relations Act.

The consequences of a successful sexual harassment action against an employer can range from an injunction by the court against any future harassment plus corrective action in the workplace and attorneys fees to awards for economic losses and even punitive damages for victims in cases where actual adverse employment actions or injury (emotional or otherwise) caused by the harassment have taken place.

General Rules to Avoid Becoming a Victim
There are a number of steps employees can take to avoid becoming a victim of sexual harassment or effectively handle any incidents that may arise.

• Do not participate voluntarily in any inappropriate sexual conduct
  at work;
• Promptly, directly, and assertively inform the harasser that the conduct is unwelcome and must stop;
• Strictly follow the employer's policy, if any, regarding reporting
• sexual harassment;
• Promptly report and document all incidents of sexual harassment to
  a supervisor; and
• If the employer does not solve the problem, consult the Equal Employment Opportunity Commission or an attorney.

General Rules to Avoid Accusations of Sexual Harassment
Employers and co-workers can also follow some simple guidelines to avoid being accused of sexual harassment.

• Use common sense regarding your relationships and interactions with co-workers;
• Don't participate in sexual jokes, remarks, touching, or other horseplay;
• Don't bring any sexually explicit material to work; and,
• Avoid dating co-workers, especially subordinates.

MacElree Harvey
17 West Miner Street
Post Office Box 660
West Chester, PA 19381–0660
p | 610.436.0100
f | 610.430.7885
f | 610.429.4486
e | [email protected]