Transcending the Workplace: Sexual Harassment in the 21st Century

Our interactions with work colleagues often occur outside of official business hours. While the after-work "happy hour" has waned in popularity in recent years, employees are more interconnected these days than at any time in the past. Between Facebook accounts, Instagram pictures, "Likes," and "Tweets," the opportunities for employees to engage one another outside of the office – whether in person or online – are almost limitless.

While these opportunities can boost productivity and creativity and help to build strong relationships among staff members, they can also blur lines in subversive ways. Employees can and do send inappropriate Facebook messages to one another or make lewd comments on a photo posted online. These interactions, which often occur off work premises, can have dangerous implications for both employees and employers. Unchecked communications increase the risk of workplace sexual harassment and, in a subset of cases, can lead to sexual assault.

As defined by the Equal Employment Opportunity Commission, sexual harassment is "unwelcome conduct that is based on . . . sex." There are two categories of sexual harassment. The first is where the offensive conduct becomes a condition of employment (i.e., quid pro quo harassment). The second is conduct "severe or pervasive enough to create a hostile work environment that a reasonable person would consider intimidating, hostile, or abusive." Determining what is "severe or pervasive" enough to give rise to a legal claim is usually fact-specific, but courts have noted that single instances or comments – unless extreme in nature – will not give rise to liability under Title VII of the Civil Rights Act, the primary federal statute that protects workers from sexual harassment.

Most employers know that they can be held liable when, for example, a manager sexually harasses a subordinate. But through the doctrine of respondeat superior, employers can also be liable when one employee sexually assaults another. Moreover, where the company knew of an employee's propensity to engage in such actions, the assaulted employee may be able to bring a claim of negligence against the company, as well. Finally, an employee may have a claim for wrongful termination (in addition to other causes of action) if an employee discloses to HR or to a supervisor that he or she is in fear of or was the victim of a sexual assault and is fired soon after the disclosure.

From an employee's perspective, the takeaway should be clear: The moment that you believe one of your co-workers (or supervisors) is mistreating you – whether at your work site, during an off-site event, or online – because of your sex, you should disclose your concerns to HR and through your supervisory chain. A sexual assault is often preceded by more subtle harassment that may itself be actionable, but it does no good – and much potential harm – to delay voicing concerns. Thus, those who feel they are in a hostile work environment need not, and should not, wait until they suffer an assault to take action against an employer who fails to stop the harassment. As noted, retaliation for disclosing sexual harassment or sexual assault is a violation of Title VII and, in most states, analogous state statutes or the common law.

Employers should take seriously any complaints of sexual harassment. All too often, employers' sexual harassment policies are ignored in the face of potential legal liability. Rules in your handbook are great, but actually enforcing those rules is paramount. Perhaps more importantly, employers should cultivate an environment where employees know that sexual harassment is not tolerated and that anyone found to have run afoul of company policy will be dealt with swiftly and decisively. In addition, ongoing and effective training of your workforce on how to conduct themselves when interacting with their colleagues – both inside and outside the office – can go a long way in reducing unlawful sexual harassment and assaults.

Tom Harrington is a principal at The Employment Law Group, PC. R. Scott Oswald is managing principal at The Employment Law Group, PC.

Posted on Apr 06, 2015