Monthly Newsletter

EMPLOYMENT AND LABOR NEWS
Mickey Busca, Editor

Sexual Harassment Legal Standards

December, 2017

THE LEGAL STANDARD FOR SEXUAL HARASSMENT

Because of the brave acts of many women, it seems as if sexual harassment at the workplace is in the news on a daily basis.  Men of power, wealth and status in government, entertainment and the media have been removed from such positions by their employers based upon allegations of improper conduct.

But how do the courts evaluate claims of sexual harassment?  That is, if these cases made their way into a courtroom, how must a plaintiff prove sexual harassment?  What standards do courts use to determine meritorious cases of prohibited sexual harassment?

An employer violates both federal and state discrimination law on the basis of sex when it allows the working environment to become permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

An employee can prove the requisite severity by showing that a single incident was extraordinarily severe or that a series of incidents were sufficiently continuous to have altered the conditions of her working environment.

The sexually objectionable environment must be objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive.

The U.S. Supreme Court has held that a work environment’s hostility should be assessed based on the “totality of the circumstances.”  Consideration is given to the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance and whether it unreasonably interferes with an employee’s work performance.

In some of the recently reported cases in the media, the victims had complained to top management and human resource personnel.  However, according to these news reports, such company officials took no action or dismissed such sexual harassment claims against their high profile male employees.

The law states that to show that the sexual harassment can be imputed to the employer, an employee must show that her employer failed to provide a reasonable avenue for complaint or that it knew, or should have known, about the harassment yet failed to take appropriate remedial action.  Most employee handbooks provide for a procedure for complaint to company officials about workplace harassment, including sexual harassment.

However, whether the employer’s action was effectively remedial and prompt creates an issue for the jury to decide.

Also, for those employees who do complain about workplace sexual harassment and suffer adverse consequences, the law protects them in allowing them to maintain a retaliation claim in addition to a sexual harassment discrimination claim.  The legal standard for retaliation claims is much broader and more protective than for discrimination claims.  An employee need only show that the employer’s actions must be harmful to the point that they would dissuade another worker from making or supporting a charge of discrimination.

Whenever an employee suspects workplace harassment in any form, she should consult with an experienced and knowledgeable employment attorney.

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