Sexual Harassment Webinar Takeaways

Title VII prohibits sexual harassment at work. Sexual harassment includes conduct that is sexual in nature, such as sexual jokes, photos, touching, requests for sexual favors, and non-sexual conduct that is based on gender, such as comments that men or women do not belong in certain jobs, or comments questioning men’s or women’s skills or abilities. Harassment based on sexual orientation, pregnancy, or gender identity is also prohibited.

 

In general, sexual harassment is illegal if it is unwelcome (unwanted) and it is so frequent or serious that it creates a hostile work environment. The law protects against harassment by a supervisor, a supervisor in another area, a coworker, and others in the workplace, such as a client or customer. A harasser can be the same or a different sex than the victim.

 

The Equal Employment Opportunity Commission (EEOC) also protects against retaliation or harassment because an individual, or someone they closely associate with, complains about sex discrimination or takes other protected actions.

 

The law forbids the following based on sexual orientation or gender identity:

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• Employment discrimination, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

 

• Workplace harassment that creates a hostile work environment. Harassment can include, for example, offensive or derogatory remarks about sexual orientation (e.g., being gay or straight). It can also include, for example, offensive or derogatory remarks about a person’s transgender status or gender transition.​Although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment. While the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that aren't very serious, harassment is unlawful when it is so frequent or severe that it creates a hostile work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer.

 

• Employers covered by Title VII are not allowed to fire, refuse to hire, or take assignments away from someone (or discriminate in any other way) because customers or clients would prefer to work with people who have a different sexual orientation or gender identity. Employers also are not allowed to segregate employees based on actual or perceived customer preferences. (For example, it would be discriminatory to keep LGBTQ+ employees out of public-facing positions, or to direct these employees toward certain stores or geographic areas.) Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination. Courts have long recognized that employers may have separate bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. The EEOC found that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity. In other words, if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.

 

• For an employer to retaliate against, harass, or otherwise punish any employee for opposing employment discrimination, filing a charge or complaint with the EEOC, or participating in enforcement. Retaliation is anything that would be reasonably likely to discourage workers from protesting discrimination.

 

Sexual Harassment

 

It is unlawful to harass a person because of that person’s sex, including their sexual orientation, gender identity, or pregnancy. Harassment can include sexual harassment such as unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex, including the person’s sexual orientation, gender identity, or pregnancy. Examples of harassment

include:

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• Offering an employee a benefit, such as a job, promotion, pay increase, or trip for agreeing to sexual demands.

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• Punishing an employee for not agreeing to a sexual advance by firing them or refusing to hire them, assigning them to disagreeable tasks, not promoting them, or not granting their raise.

 

Harassment may be committed by anyone—supervisors, employer agents, coworkers, and non-employees, such as vendors, contractors, and customers. The victim can likewise, be anyone and does not have to be a different sex than the harasser. Title VII prohibits sexual harassment by members of the same and/or another sex.

 

The law does not prohibit minor teasing, offhand comments, or isolated incidents that are not frequent or serious. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). Additionally, sexual harassment does not only occur in the workplace—it can happen before work, after work, on or off premises; but the harassment must be related to the job. For example, employment-related sexual harassment can happen at informal after work get together, company parties, and business trips.

 

Prevention and Policy

 

Employers are required to prevent sexual harassment and reasonably, diligently investigate situations that may constitute sexual harassment. Employers should have an anti-harassment policy that is clearly and regularly communicated to the workforce. It

should include:

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• A prohibition against sexual harassment as defined by the EEOC and applicable state law. The policy should be very clear about the illegality of sexual harassment by:​

  • Illustrating prohibited conduct and specifying that the policy applies to everyone.

  • Clearly describing conduct that constitutes harassment.

  • Providing notice that harassment is prohibited under state and federal law.

 

• A provision stating that sexual harassment will result in discipline, up to and including discharge.

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• An assurance that whoever files a complaint will not be retaliated against for bringing the complaint and that it will be kept as confidential as possible (consistent with the need to investigate).

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• A complaint procedure and a statement that complaints will be promptly addressed.

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• Information about the state and federal legal process for harassment complaints.

 

All employees should have ready access to the policy, and it should be distributed to new hires at the time of hire.

 

Investigating Sexual Harassment Claims

 

Employers must fully investigate a harassment claim without disclosing specific information about it, except to those who need to know. During an investigation, the employer should fully inform the person who made the complaint about their rights under the company’s anti-harassment policy. All sexual harassment complaints must be promptly and thoroughly investigated. A denial by the person accused of harassment is not sufficient. Instead, the employer should get all relevant information, which may

include the following:

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• Eyewitness accounts

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• Statements from people who discussed the harassment with the victim

 

• Statements from coworkers who may have observed the alleged victim’s demeanor either before or after the incident

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• Statements from other employees who may have been harassed by the alleged Harasser

 

Both the accused and the accuser should be able to provide any evidence or identify any witnesses who can support their version of events.

 

Employers must investigate claims thoroughly and they should make all efforts to protect the privacy of all people involved. To preserve confidentiality, witnesses should be questioned in private and asked to keep their conversations with the investigator

confidential. Of note, the person accused of harassment will probably need to know who made the accusation so they can respond to the claims. Each step of the investigation should be thoroughly documented and whether harassment occurred should be

communicated to the employee who filed a complaint and the alleged harasser.

 

An investigation can result in three conclusions:

 

• Sexual harassment occurred

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• Sexual harassment did not occur

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• A determination of whether sexual harassment occurred cannot be made

 

Sexual Harassment Occurred

 

If the allegations are found to be true, the employer’s duty is to take appropriate corrective action, which depends on the circumstances of each case, including the severity of the misconduct. Appropriate corrective action may include the following:

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• Discharge

• Reprimand

• Suspension or probation of the harasser

• Reinstatement with backpay of the victim

• Transfer with equal pay and equal duties for the victim

• Transfer or demotion of the harasser

• Discipline of supervisors or coworkers who failed to report the harassment

 

The employer should also perform follow-up inquiries. This includes investigating to ensure that there are no other victims and, in the case of a hostile environment, that the hostile environment has been completely cured.

 

The employer should develop a checklist of remedial actions to ensure that all necessary steps to deal with the complaint have been taken. A sample checklist might include the following:

 

• Was the complaint investigated promptly and thoroughly?

• Were the offenders appropriately dealt with, such as reprimand or discharge?

• Was the victim made whole, including the restoration of benefits and lost opportunities?

• Has any hostile environment been eradicated?

• Have steps been taken to avoid future problems?

 

Sexual Harassment Did Not Occur

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In their documentation, employers must clearly state the reasons for determining that sexual harassment did not occur. Regardless, it would be in the best interests of both the accused and the accuser to be in physically separate locations in the workplace. Importantly, although an employee made an accusation determined to be unfounded, Title VII protects employees who have opposed discriminatory employment practices from retaliation even if their claims of discrimination are unfounded. An employee who has made a good faith allegation of sexual harassment cannot be disciplined. However, employees that knowingly make a false allegation can be disciplined or even terminated. In order to defend any subsequent charge of retaliation, there must be strong evidence

that the employee knowingly misrepresented the facts.

 

A Determination Cannot Be Made

 

In these instances, the employer should document the investigation and clearly state why the employer cannot decide whether harassment occurred or not. The employer should advise the accused individual of the results of the investigation, remind the accused of the employer’s policy against harassment, and inform the accused that any proven incidents of harassment in the future may subject them to discipline. The employer should also tell the complainant about the investigation results and encourage them to bring any further evidence they have or to notify the employer of any future complaints. It may also be appropriate for the employer to separate the accused party and the complainant, but this separation may not always be possible, particularly if it would result in a less favorable job for the alleged victim.