EMPLOYERS BEWARE SEXUAL HARASSMENT LITIGATION IS ON THE GROW

Sexual harassment is now an extremely dynamic area of law. Almost daily, courts throughout the country are issuing new opinions and interpretations as to what conduct will be actionable. The courts have been consistently expanding the rights of litigants to make claims against an employer and broadening the conduct that is classified as "sexual harassment."

Sexual harassment is loosely defined as unwanted verbal, non-verbal, or physical advances of a sexual nature in the workplace which impedes a person's work performance, or their ability to do their work, or their employment opportunities. As stated, this definition is being broadly applied. One court recently found that even though a sexual relationship between a manager and his subordinate was completely consensual for a number of years, the employee was permitted to bring a claim alleging the consensual relationship was indeed "unwanted" under the law and entitled to recovery.

There are two basic types of sexual harassment. First, is quid pro quo, in which advancements or promotions are given in exchange for sexual favors. Quid pro quo sexual harassment also includes threats of demotion or unattractive work assignments if the relationship is refused. Second, is hostile work environment. This form allows recovery when certain conduct may not necessarily be directed at a particular individual, but innuendoes and sexually oriented conduct are so pervasive that the work environment becomes hostile. A recent example of this cause of action is a Wall Street investment banking firm which decided that the predominantly male management team would only hold their office meetings at the local strip club and required that the female managers attend.

The law against sexual harassment has been codified in the United States Code Title VII. Sexual harassment allegations are generally first reported to the Equal Employment Opportunity Commission. If the Commission accepts the Complaint, notice will be sent to the employer outlining the facts of the EEOC investigation and asking the employer to respond. The EEOC has been expanding its influence in investigating and resolving allegations of sexual harassment. The fines that the EEOC imposes have been steadily increasing over the years.

Employers should be aware, even if the EEOC conducts a full investigation of the allegations and finds that the allegations are without merit, the alleged victim is still permitted to take his or her claim to court regardless of the previous finding by the EEOC. Courts have found that individuals who have been subjected to sexual harassment suffer from hostility, emotional changes, adverse effects with regard to their employment and adverse effects on other aspects of their life. These individuals are viewed as victims and increasingly the law is expanding to protect their interests.

Case law throughout the country is well settled, if an allegation of sexual harassment is instituted, an employer is obligated to immediately begin its own internal investigation as to the merits of the allegation. If such allegations are verified, typically the harasser is subjected to the most severe corrective action by the employer, which often is termination. Protection for employers starts with an Employee Handbook/Manual that contains clear policies, rules and procedures of employment, which includes provisions on sexual harassment. Training and awareness sessions, seminars, and other methods of employee education and awareness are also important.