Sexual harassment is in the news, from movie producer Harvey Weinstein to actor Kevin Spacey to television journalist Matt Lauer and so many others. With the “Me, too” campaign, it has become widely publicized that many employees – both men and women — have endured sexual harassment in the workplace. Employers need to take action to prevent their workplaces from being disrupted by sexual harassment and to prevent, or at least limit, their liability in case of such allegations.
Sexual harassment is a form of sex discrimination, which violates the Civil Rights Act of 1964 if the employer has 15 or more employees and violates the Arizona Civil Rights Act, A.R.S. §41- 1401 et seq. if an employer has even one employee. As defined by the Equal Employment Opportunity Commission (“EEOC”), sexual harassment is “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” when the conduct affects the employee’s employment conditions, interferes with the employee’s work performance or creates an intimidating or offensive (“hostile”) work environment. The unwelcome conduct may be intentional, such as a direct proposition, sexual advance or offensive comment, or the conduct may be unintentional, such as a joke or statement inadvertently overheard by the employee. The unwelcome conduct may be committed by a man or a woman and by a supervisor, co-worker, vendor, client, member or anyone else with whom an employee may interact. It may occur during work hours or off-hours when co-workers interrelate. It is also unlawful to retaliate against an employee for reporting or participating in an investigation of sexual harassment.
The key to sexual harassment is unwelcome conduct and whether a reasonable person would find the conduct or comment so objectionable as to create a hostile work environment.
To protect themselves from their employees’ offensive conduct, employers should create a policy prohibiting sexual harassment in and related to their workplace. Employers must communicate the policy in a manual, employee website, and other locations employees must go. Then employers should actively train their employees on the policy, provide access to channels for reporting offenses, thoroughly investigate any allegations and take prompt and corrective action when sexual harassment is detected. That corrective action may include training for the violator and/or discipline up to and including termination of employment.
If the employee is not satisfied with the employer’s response, the employer could be facing arduous investigation and possible litigation. Prior to filing any legal action against an employer, allegations of sexual harassment must be reported to the Arizona Civil Rights Division of the Attorney General’s Office or the federal EEOC. Those agencies send the employer a notice of the charges and require the employer to respond in writing. The agencies may further investigate the charges, attempt mediation and issue a finding of “cause” or “no cause” or that they were unable to make a determination. Within the year, the agencies must either file an action for the employee or issue the employee a “right to sue letter” to proceed on their own if they choose.
Anytime an employer faces an allegation of sexual harassment from its employees, the employer should take the allegation seriously, promptly investigate, seek legal advice and take appropriate action. Sexual harassment in the workplace has been systemic in our society and needs to end.