Sexual harassment in the workplace is not a fun topic. Everyone can definitely agree on that. Any workplace discussion about sexual harassment is awkward, tends to make everyone uneasy, and is absolutely dreaded by supervisory personnel. However, in light of the recent influx of sexual harassment allegations coming out against political figures and celebrities alike, now is as good of a time as any for Illinois employers to educate or re-educate themselves on how to prevent it from happening in the workplace. In addition to discussing preventative measures, it is the goal of this article to provide guidance for employers on limiting or completely avoiding legal liability in sexual harassment matters.
What exactly is "sexual harassment"?
The term "sexual harassment" itself is broad and seems to entail a whole array of widely unacceptable behavior. It’s certainly the type of thing you could easily recognize if you saw it, but we need to go beyond that if we are to get a better sense of what we are talking about here. For starters, let’s look at how it is defined under the law. According to section 2-101(E) of the Illinois Human Rights Act:
"Sexual Harassment" means any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when:
(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;
(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
(3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
Also, employers should be aware that under Title VII of the U.S. Civil Rights Act of 1964, sexual harassment is considered to be a form of discrimination.
What forms can sexual harassment take and how is it treated under the law?
When thinking about the types of actions that constitute sexual harassment, the more obvious instances include, unwanted physical contact, verbal and non-verbal gestures, and unwelcome electronic communication.
It goes without saying that the most severe and overt forms of sexual harassment are easy to determine and easy to spot. However, in many instances things are not so clear. Some forms of sexual harassment are more subtle and less recognizable and often depend, to some extent, on individual perception and interpretation. With this in mind, if a sexual harassment case makes its way into the legal system, the courts will assess each individual sexual harassment claim using the standard of what would offend a "reasonable person," which is a purposely undefined term. This means that a judge is going to look to accepted societal standards and norms to determine whether most people would be offended by the conduct in question. For instance, even though the statement, "That’s a good looking jacket you have on," may offend the sensibilities of an individual employee, because the statement doesn't rise to the level that would offend the average person, the statement would not be considered sexual harassment. On the other end of the spectrum, the type of language and/or conduct normalized in certain workplace settings (e.g. construction site, demolition derby pit, etc.) that is not offensive to a particular employee could still be considered sexual harassment if such conduct would tend to offend a reasonable person.
When is an employer liable for an employee’s sexual harassment and how can an employer protect itself from liability?
There are two major cases dealing with sexual harassment in the workplace with which every employer and supervisory employee should be familiar. In 1998 the U.S. Supreme Court ruled in the cases of Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton and completely changed the existing framework of determining sexual harassment. The two landmark decisions provided solid guidance on an employer's liability for sexual harassment perpetrated by a supervisor against a victimized subordinate.
Ellerth and Faragher stand for the proposition that when a supervisor's sexual harassment results in a "tangible employment action" (supervisory actions such as firing, reassignment, failing to promote, etc.), the employer is automatically liable. However, when no "tangible employment action" is taken, the employer may be able to prevent liability by proving two necessary things:
1. The employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and
2. The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
To satisfy the first element, it is generally enough for an employer to have an established sexual harassment policy that has been distributed amongst the employees. However, to be safe, it is advisable for an employer not just to have a formal policy, but to take reasonable steps to enforce the policy. This would include actively preventing and correcting known or suspected violations of the policy.
To satisfy the second element, an employer must establish the unreasonableness of a victimized employee's failure to report the misconduct. This second factor is usually established when an employer can show that the complaining employee did not adhere to the employer's in-house sexual harassment reporting policy. The courts are not very generous to employees who fail to report to an employer when the employer has an established policy. If nothing is reported, the employer can't be expected to act.
Recommendations for employers.
At the very least, all employers are encouraged to establish and distribute a formal policy against sexual harassment in the workplace. To further avoid liability, any such policy should include avenues of relief and means of reporting any misconduct to the employer. It is also recommended that all employees sign a copy of the policy so that they can't later claim they never received it or were unaware of it. Originals should be kept with the employees' files and a copy should be given to the employees themselves.
When it comes to supervisory or managerial staff, simply distributing the policy is probably not going to be enough. Because any supervisory misconduct is capable of bestowing legal liability on the employer, additional preventative steps should be taken. No employer wants to end up in court to answer for the bad acts of their supervisory personnel (especially not in this context), so the best preventative measure would be to provide supervisory staff with sexual harassment training or, at a minimum, specifically train them regarding the in-house policy.
Should a sexual harassment complaint be brought to the employer's attention, the employer should investigate the situation, thoroughly document the events, and take prompt remedial action to end the alleged misconduct.
In the best case scenario, this will prevent employer liability; in the worst case scenario, it will limit liability.
Drafting a sexual harassment policy.
There are many sexual harassment policy templates an employer can find online. These are usually sufficient, but you should make sure that any policy has, at the very least, the following elements:
‚óè A clear and unambiguous explanation of prohibited conduct;
‚óè Assurances that any employee who complains of harassment or provides the employer with information related to any such complaint shall not be retaliated against;
‚óè A clear description of the complaint process and procedure that unequivocally states the accessible avenues in which a complaint should be made;
‚óè Assurance that the employer will protect the confidentiality of any complaints brought to its attention, to the extent the employer is able;
‚óè A statement in which the complaint process is described to be prompt, thorough, and that any investigation will be impartially made; and
‚óè Assurance that the employer will take immediate and appropriate corrective action in the event the employer has determined that harassment has occurred.
Again, it is not enough simply to have an established policy. It should be followed!