SEXUAL HARASSMENT IN THE WORKPLACE

“Sexual harassment” may consist of unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.  Both men and women can be victims of sexual harassment.  The harasser can be of the same sex or of the opposite sex of the harassment victim.  Sexual harassment is not necessarily limited to actions or remarks that are explicitly sexual in nature. It can also involve comments or behaviors that are offensive toward a gender, including those of the gay, lesbian, transgender and bisexual community.

Employees are protected from harassment under federal and state law.   Harassment violates the law when it involves discriminatory treatment of a person based on sex.  The law does not prohibit simple teasing and isolated incidents that do not rise to a serious level.  The harassment must rise to the level as to be offensive to the point that it alters the conditions of the victim’s employment.

An employee’s supervisors or co-workers can be the perpetrators of sexual harassment.  The Supreme Court has held that an employer is liable for hostile work environment harassment by co-workers if the employer was “negligent in failing to prevent harassment from taking place.” Any evidence that demonstrates that the employer did not monitor the workplace, failed to respond to complaints, or failed to provide a system for making complaints is relevant to a negligence determination. Therefore, it is important for employers to have effective sexual harassment policies in place.  Where an employee files suit over alleged sexual harassment, an employer could be held liable if it negligently failed to have sexual harassment policies in place.   Court decisions in New Jersey have held that an employer's implementation and enforcement of an effective anti-harassment policy is a critical factor in determining negligence. 

A policy cannot exist in name alone.  The existence of the following factors in an anti-harassment policy have been determined to be relevant in determining whether that policy is effective: “a formal prohibition of harassment; formal and informal complaint structures; anti-harassment training; sensing and monitoring mechanisms for assessing the policies and complaint procedures; and unequivocal commitment to intolerance of harassment demonstrated by consistent practice.”  However, the existence of an effective policy does not conclusively shield an employer against a claim for negligence. 

In addition to being potentially liable for negligence for failing to take measures to prevent sexual harassment in the workplace, an employer also may be liable for a supervisor's actions if he or she sexually harasses another employee in the workplace.  

Sexual harassment is not limited to co-workers and supervisors.  Recently, a female employee of the grocery chain Safeway filed suit against the chain because the employee was repeatedly subjected to vulgar sexual comments from a Safeway customer.  Numerous such instances of sexual harassment occurred over the course of several months.  The male customer repeatedly harassed the female employee by making vulgar and perverted comments about employee’s breasts, and other body parts. The outcome of this case has not yet been decided.  In any employment situation, all employees have the right to be treated with professional courtesy, by their employers, co-workers, and customers.

Although most sexual harassment is assumed to be directed from a man to a woman. Sexual harassment can be committed by one female toward another female, or a female toward a male.  Another common assumption is that most sexual harassment is directed toward a worker by the supervisor who threatens to withhold a raise or promotion unless favors are granted. Offensive behavior commonly comes from a person who works in a different department, or by a person who is a vendor, and, even customers.

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.  Title VII also prohibits employers from retaliating against you for speaking out against sexual harassment. Don’t be afraid to speak up if you think harassment has occurred in your workplace! 

Many employers develop a policy and don’t revisit it.  Laws may change frequently.  If you are an employer and not sure if your sexual harassment policy is up to date with the current state of the law, we would be happy to do a quick review of your existing policy.  Management needs to understand the policy and how the harassment complaint documentation process works.  This ultimately benefits your employees, your company, and your bottom line!"