Dec 14, 2017

By David Warner

I had intended to write about the Supreme Court’s recent decision denying certiorari in the 11th Circuit’s decision in Evans v. Georgia Regional Hospital, thereby declining to resolve the existing circuit split concerning whether sexual orientation is a protected characteristic under Title VII. But then yet another story dropped with high profile allegations of sexual harassment, and the siren call of timely “click-bait” won out over the finer points of Supreme Court jurisprudence. And, wait, here’s yet another story that dropped literally as I was typing this paragraph.

As it appears the nation could use a refresher course, let’s review, shall we?

Sexual harassment – it’s illegal and has been since 1964. Interestingly, there have been relatively few developments in the substantive law around sexual harassment since the Faragher and Ellerth decisions in 1998. Despite subsequent years of HR professionals and management-side employment lawyers beating the drum regarding the necessity of robust anti-harassment policies, training, and proactive response to internal complaints, sexual harassment claims continue to be alarmingly prevalent. In FY 2016 alone the EEOC received almost 7,000 administrative complaints of sexual harassment.

In July 2016, the EEOC issued a report from its Select Task Force on the Study of Harassment in the Workplace. The report merits review in its entirety, but certain of its conclusions concerning “risk factors” are eerily prescient of the current Zeitgeist.

For example, the Task Force noted that workplaces with “High Value” employees and those with “Significant Power Disparities” are particularly prone for harassment issues – i.e., where rules of behavior are viewed as not applying equally to all levels of an organization or to certain “untouchable” employees. While it is easy to pile-on to movie producers, directors, on-air talent, more on-air talent, celebrity chefs, and the like, employers should recognize that significant power disparities exist in literally every working environment. And, per Faragher and Ellerth, it is incumbent upon employers to take steps to ensure that their workplaces are free from conduct that might give rise to claims and potential liability.

The steps remain clear. First, promulgate a clear and strong anti-harassment policy with multiple avenues of complaint, absolute prohibitions against retaliation for good faith complaints, and clear commitment that the policy applies to all levels of the organization. Second, senior management must own and drive a “speak up” culture – you do it for False Claims Act and other compliance issues, right? Third, train your employees on the policy and expectations. For organizations of any size, often separate training for executives/managers and line employees permits for freer discussion and proactive identification of problem areas. Finally, promptly investigate and respond to complaints as they are brought forward, including implementation of harsh discipline where appropriate.

While the law of harassment may not have changed, the cultural environment definitely has. If the headlines have revealed anything, it is that no employee – no matter how senior or “important” – is untouchable now. The human condition being what it is, sexual harassment will likely always be an unfortunate reality in the workplace. The culture’s tolerance for those that abet it, however, appears to be at an end.


About the Author:

David Warner | Centre Law & Consulting David Warner

David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.

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  • George Fleckenstein says:

    What, however, is considered sexual harassment? Is consensual sex in the work place harassment? Exactly what type of comments are harassment? How about complements? Touching, yes. Inadvertent, accidental? Courting? What about flirting? Can a look be considered by someone as sexual harassment – a leer? Is it always by a higher ranking employee to a subordinate? Can a subordinate be accused of sexual harassment to a superior? Are there clear lines other than don’t do it?

  • Judith Lee says:

    We need to use the term “hostile environment” more – the tools for creating a hostile environment are many, including sexual, physical and psychological assault, bullying, withholding of assistance and information, innuendo, the list continues. It is about control of the powered (or those who can bully their way into informal power) over the powerless, especially those who value their job, and/or feel that they no options for changing their jobs, and/or know that they will be labelled as troublemakers when seeking references. No, tolerance for bad behavior is NOT at an end, we are beginning to experience the pushback of the privileged now, and I predict it will get ugly, especially as the President is publicly modeling the intolerable behavior every day. You are naive if you think the tolerance is ending, I am afraid. There is a continued need for attitude and systemic changes moving forward. The systemic changes are critical, and not at all in place throughout workplaces, at all levels of organizations. HR seldom hears the stories of the powerless, including those powerless by position, language, life and family circumstances, pay, immigration status, etc. I listened to one situation last night, knowing that HR would do nothing if approached, and the perpetrator will continue his unacceptable behavior, because he knows he can get away with it. I explained that she is not to blame or at any fault, that her perceptions are correct, taught her to document the intolerable behaviors, every day, every time, and supported her own strong behaviors in dealing with the perpetrator, who works closely with her in her job. I am just a friend, with no opportunities to intervene and directly assist, unfortunately. Please, wake up and learn more from the trenches. Your own quoted data indicates the challenges ahead.