General Categories of Sexual Harassment

As more and more women have entered the workforce in the last several decades, there has been a heightened awareness of the problem of sexual harassment. The recent spate of successful employee litigation in this area, combined with tan extension of an employer's liability for acts of its supervisors and often its rank-and-file employees, has created an area of serious concern to employers.

This is particularly so given the heightened awareness to the issue inherent in the U.S. Supreme Court confirmation hearing of Justice Clarence Thomas. It is important for supervisor and manager to be familiar with the laws of sexual harassment. Their knowledge and actions will not only legally bind the company, but may also make themselves personally liable for violation the law.

The Equal Employment Opportunity Commission (EEOC), which enforces federal prohibition against sexual harassment, defines sexual harassment as "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature."

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The California Fair Employment and Housing Commission (FEHC), which enforces state law, further defines sexual harassment to include:

1. Verbal harassment, such as epithets, derogatory comments or slurs;
2. Physical harassment, such as assault or physical interference with movement or work; and
3. Visual harassment, such as derogatory cartoons, drawings or posters.

Two General Categories of Sexual Harassment

Over the years, the courts have separated sexual harassment into tow main categories:

1. "Quid pro quo" occurs when a supervisor or manager conditions an employment benefit or continuing employment on the employees acquiescence in the form of sexual behavior.
2. "Hostile" or "offensive" work environment sexual harassment. No employment benefits need be lost or gained, and this type of harassment may be engaged in not only by management, but also by coworkers or persons who are not even employed by the employer. An offensive work environment occurs where sexual jokes, suggestive remarks, cartoons, physical interference with movement such as blocking or following, and sexually derogatory comments create an offensive working environment.

In determining when conduct is unwelcome, it's important to determine is whether the victim indicated by his/her conduct that the sexual advance or conduct were unwelcome, not whether any participation was voluntary. The victim's conduct may be totally passive, such as not laughing at sexual jokes. In determining whether a work environment is hostile, the conduct must be sufficiently severe and pervasive so as to alter the condition of the employee's employment.

Trivial or merely annoying conduct is not enough. A pattern of offensive conduct is generally required also. Unless severe, a single incident or isolated incident of sexual conduct or remarks will not be sufficient to show environmental harassment. Finally, the conduct will be evaluated from the objective viewpoint of a reasonable person facing the same conditions. The victim"s perspective will be used, not community standards or stereotypes of acceptable behavior.

In California, an employer is strictly liable for the sexual harassing conduct of managers and supervisors in both the "quid pro quo" and "hostile environment" situation on the common law theory that holds an employer liable for injuries committed by employees during the course of their employment.

The assumption is made that if the manager/supervisor did it, then the manager/supervisor knew about it, and therefore the company knew about it. The employer is liable for harassment of an employee by a co-worker and possibly even of non-employees, if the employer knew, or should have known, of such conduct and failed to take immediate and appropriate action.

Sexual harassment also may occur where employment benefits are granted because of one employee's submission to a supervisor's request for sexual favors, but where other employees equally or better qualified to receive the benefits are denied them. If the employer did not know of the conduct, the FEHC will consider that the employer had notice unless the employer can establish that it took reasonable steps to prevent the harassment from occurring. Such reasonable steps may include having a sexual harassment policy in place, as well as providing sexual harassment training to supervisors and managers.

Supervisors, managers, and employees must know and follow the company's policy against sexual harassment. If a violation of company policy is found, a prompt and effective remedy should be provided to the complaining employee and disciplinary action taken against the harasser. The company can only determine whether company policy was violated. Supervisors and mangers should avoid making any statements or conclusions that illegal sexual harassment has taken place.

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