Sexual harassment: An employer’s guide

Employers have an incentive to identify and prevent sexual harassment in the workplace because it is absolutely the right thing to do. Employers also have an incentive to protect themselves from harm. Here is a guide for employers to use in identifying sexual harassment so they are better-positioned to prevent it.

How are employers harmed by sexual harassment?

Employers are harmed by sexual harassment in ways including: absenteeism, reduced productivity, increased turnover, reduced morale, adverse publicity and liability.

What sexual harassment laws apply to employers in Texas? To which employers specifically do they apply?

The applicable federal law is Title VII of the Civil Rights Act of 1964, as amended. The applicable state law is Texas Labor Code Chapter 21. Helpful information, some referenced here, is available at www.eeoc.gov and www.twc.state.tx.us.

These laws apply to employers who have at least 15 employees. They also apply to employment agencies, labor organizations and certain governmental entities.

What are some key terms in understanding sexual harassment?

What is unlawful sexual harassment? What isn’t sexual harassment? Here are seven key terms I use to explain sexual harassment.

First, “sexual harassment” is the harassment of an employee based on his or her gender. There are two types of sexual harassment: “quid pro quo” and “hostile work environment.”

Quid pro quo literally means “this for that.” An employee is directly targeted. For example, a supervisor might tell an employee, “Have sex with me if you want to be promoted.”

In a hostile work environment, an employee is affected by offensive conduct, even if he or she is not directly targeted. For example, employees might post suggestive pictures on a bulletin board or wall.

Second, “victim” is an alleged or actual victim – a male or female employee. (By “alleged,” I mean the person who has been stated to be a victim, but not yet confirmed as one by an investigation.)

Third, “complainant” is a person who complains about conduct to an employer. The complainant may be: the victim, another employee who witnessed or is aware of the conduct, or someone outside the company who witnessed or is aware of the conduct.

Fourth, “company” is the employer of the victim. The employer can be held liable for sexual harassment of a victim under certain circumstances.

Fifth, “actor” is an alleged or actual sexual harasser – male or female. The actor may be: the victim’s supervisor, a supervisor elsewhere in the company, a co-worker who is not a supervisor, an agent of the company (e.g., a vendor), or a non-employee (e.g., a customer).

An actor can act against a victim of the opposite sex or the same sex.

Sixth, “conduct” is the actor’s alleged or actual conduct. This is explained further below.

Seventh, “impact” is the alleged or actual harm to the victim resulting from conduct. This is explained further below.

How is “conduct” important in understanding sexual harassment?

Conduct is important because agencies and courts look particularly closely at conduct when deciding whether sexual harassment occurred. Conduct is an actor’s alleged or actual conduct. It must be unwelcome. Here are some examples:

• Unwelcome advances (e.g., repeated invitations to go out on a date that are refused)

• Requests for sexual favors

• Improper touching

• Leering

• Sexually related jokes or gestures

• Display of sexually suggestive images

• Offensive remarks about a person’s gender, even if not sexual (e.g., remarks about how women are not as good at bringing in business, or how women are too concerned about their families to be good employees)

If an employee files a sexual harassment complaint with an agency or court, the agency or court will look at the conduct to determine which type of sexual harassment allegedly occurred – quid pro quo or hostile work environment. Depending on the type of sexual harassment, different rules apply in determining whether a company is liable.

An agency or court will look at the severity of the conduct and the totality of the circumstances in each particular case, so it is hard to generalize about what is unlawful. However, the following may not be unlawful conduct: petty or annoying comments; teasing; isolated incidents not extremely serious; stray remarks; and an insult or swear word, if it is a single stray remark.

How is “impact” important in understanding sexual harassment?

Impact is important because agencies and courts look particularly closely at impact when deciding whether sexual harassment occurred. Impact is the alleged or actual harm to a victim resulting from conduct. Consider whether the victim’s submission to or rejection of conduct resulted in any of the following:

• Explicitly or implicitly affected a victim’s employment,

• Unreasonably interfered with a victim’s work performance, or

• Created an intimidating, hostile or offensive work environment.

Note that none of these factors reads “resulted in discharge,” or “resulted in economic injury.” So a victim need not have lost his or her job, or lost money, for the impact to be unlawful.

An agency or court will look at impact and the totality of the circumstances in each particular case, so it is hard to generalize about what is unlawful. However, the following may not be unlawful impact: insubstantial changes in working conditions, such as a minor change in workload, schedule or location.

This information is a guide for employers to use in identifying sexual harassment. Although it is not a substitute for consulting with legal counsel, this information will help you to identify, and prevent, sexual harassment at your company.

Teresa Schiller is an employment and business lawyer at Beard Kultgen Brophy Bostwick & Dickson PLLC in Dallas and Waco. She can be reached at schiller@thetexasfirm.com.

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