TYPES OF SEXUAL HARASSMENT
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
- The harasser's conduct must be unwelcome.
Quid pro quo. Where an employee is required to submit to unwelcome sexual conduct as a condition of his or her job, or in order to gain some job benefit. For example, a supervisor demands that a subordinate have an affair with him or her in order to keep their job or be considered for a promotion.
Hostile workplace environment. The inappropriate behavior or conduct must be so pervasive as to create an intimidating and offensive work environment and can be visual or verbal.
- Visual. Displaying pictures, posters, calendars, graffiti, objects, reading materials, or other materials that are sexually suggestive, demeaning, or pornographic; reading or otherwise publicizing materials that are in any way sexually revealing, suggestive, demeaning, or pornographic.
- Verbal. Sexually oriented gestures, noises, remarks, jokes, or comments about a person's sexuality or sexual experience.
- Physical. Intentional physical conduct that is sexual in nature, such as touching, pinching, patting, grabbing, brushing against another employee's body, poking another employee's body, and blocking or impeding pathways.
- Retaliation. Disciplining, changing work assignments of, or refusing to cooperate with an employee who has complained about or resisted harassment, discrimination, or retaliation.
LIMITING LIABILITY
In a June 2004 decision by the U.S. Supreme Court, Pennsylvania State Police v. Suders, it is now easier for employees to sue for monetary damages when they are sexually harassed at work.
Constructive Termination. In its decision, the Supreme Court held that employees who quit because working conditions are intolerable due to sexual harassment will be treated as if they had been fired, i.e., wrongfully terminated.
Minimizing Damages. On a positive note, both the U.S. Supreme Court and the California Supreme Court have recently issued opinions making it easier for employers to avoid paying damages when an employee fails to report sexual harassment. To avoid damages, employers (including associations with employees and management companies) must create and maintain sexual harassment reporting procedures. These procedures, among other things, must identify who is responsible for handling sexual harassment complaints and the information must be distributed to all existing and newly hired employees.
Written Policies. Plaintiffs do not necessarily need to show a loss of advancement, retaliation, or loss of income to bring an action against an employer. All they need to show is the nature of the sexual conduct that caused them to experience discrimination. As a result, it is especially important for associations and management companies to have written policies against sexual harassment in their employee handbooks, and to make sure their supervisors undergo some training to avoid even the appearance of harassment. Employers are especially vulnerable when there is dating between supervisors and subordinates and safeguards need to be installed to protect the employer from potential liability.
Sexual Harassment Training. Since employers are generally liable for sexual harassment committed by supervisors whether or not the harassment is reported by the employee, all supervisors should attend some form of sexual harassment training.
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