Answers to 5 common questions about workplace sexual harassment

In the wake of high-profile cases and hashtags, the U.S. Equal Employment Opportunity Commission (EEOC) recently reported that it received 12 percent more complaints of workplace sexual harassment in 2018 than it did in 2017. As a result, the agency filed 41 sexual harassment lawsuits in 2018 (an increase of more than 50 percent over 2017) and recovered nearly $70 million for victims through litigation and administrative enforcement (an increase of nearly $40 million).

As companies continue to grapple with cultures that have failed to prevent sexual harassment, many find themselves in a position of much-needed change. However, that change is complicated, and the people charged with driving it often have more questions than answers.

This article lists five of the most common questions employers have regarding sexual harassment, what it entails, and how to respond to complaints.

FAQ No. 1 – What is a “reasonable person”?

At the federal level, the legal definition of sexual harassment often hinges on how a “reasonable person” might interpret the behavior. Would said reasonable person find the behavior merely rude, or would he or she find it so offensive that it could interfere with job performance?

While it might seem odd that such important considerations are subject to such an imprecise standard, it’s actually a common practice in the legal landscape. So, what’s an employer to do?

First, consider that this reasonable individual would always view a situation in the legally appropriate way. That means that any behavior that is clearly defined as illegal (e.g., offers of rewards or threats of punishment in exchange for sex) would automatically qualify as harassment in the eyes of a reasonable person.

Second, when trying to assess what said reasonable person would think of a more complicated situation, envision him or her in the shoes of the person making the complaint. In the same scenario, would a similarly situated person without any previous knowledge of the people involved consider the behavior inappropriate? For instance, if the complainant is a female machine operator, don’t try to imagine how her male manager might interpret the situation. Instead, imagine being in her shoes because how she interprets the behavior is the single most important factor.

FAQ No. 2 – Wait, groping isn’t sexual harassment?

If an employee reports that she has been touched inappropriately, don’t hesitate to implement your sexual harassment

policy. That said, the reported behavior might not qualify as sexual harassment at all.

It’s important to remember that sexual harassment takes only two legal forms: quid pro quo (requiring someone to endure harassment to avoid consequences or receive a benefit) and hostile work environment (prolonged exposure to harassing behavior).

At first, these definitions seem to overlook the most obvious type of harassment: physical. However, acts such as groping actually fall under the category of sexual assault. If assault is reported, employers should immediately react to put an end to the behavior and report it to authorities, if necessary.

That said, a climate that perpetuates or even encourages such behavior, or one that looks the other way when it happens, will almost certainly fall under the category of a hostile work environment, too.

FAQ No. 3 — Can a work environment be hostile but not sexual?

Employers often ask if the term “hostile work environment” can apply even if the offending behavior is not of a sexual nature. The short answer is yes, but the longer answer is (of course) more complicated.

First, remember that legal harassment only occurs when unlawful conduct is motivated by a protected characteristic, such as sex, age, race, religion, etc. If an employee is equally rude to everyone, it might make for a terrible work environment, but it’s not illegal.

Imagine a particularly cranky floor manager who regularly demeans and swears at his subordinates. The culture this kind of behavior creates is sure to be unpleasant, and employees are likely to be pretty unhappy. However, unless the manager happens to be mistreating the employees solely because of their sex (or age, race, etc.), it’s not a hostile work environment because it’s not legal harassment.

Of course, this doesn’t mean your rude employee can’t be disciplined for the bad behavior. Ensure your internal policies address how to handle these bad actors.

FAQ No. 4 — Is a temp allowed to sue for sexual harassment?

The really short answer: Yes. While temporary workers may not count as bona fide employees in many other areas (benefits, etc.), if a temp is harassed at your place of business, your place of business is at risk.

Some state sexual harassment laws have codified this by defining temps as employees, but courts everywhere have largely interpreted the federal laws that define sexual harassment to apply to any worker over whom the employer has control.

FAQ No. 5 — Why shouldn’t complaints be confidential?

One of the most common reasons employees cite for not reporting harassment is a fear of retaliation if word were to get out. Because the EEOC cites retaliation as its most frequently alleged charge, this fear is clearly well founded.

Employers might feel inclined to guarantee some measure of confidentiality to encourage reporting and avoid retaliation, but such a move would be unwise (and legally questionable).

While the EEOC suggests keeping the complaint and ensuing investigation as confidential as possible, promising to keep an employee’s complaint confidential makes it nearly impossible to properly investigate a claim and correct or prevent future harassment.

Instead, ensure that employees know all reports of harassment will be taken seriously and that retaliation will not be tolerated in any form. Leading by example and establishing a culture of trust will do far more than empty promises of confidentiality ever could.

Conclusion

The key to remember is this: Sexual harassment remains one of the most discussed and most misunderstood issues a business can face. Understanding the legal nuances is essential to helping reduce risk and improve workplace culture.

Ann Potratz is an associate editor with J.J. Keller & Associates, a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by human resources and corporate professionals. Potratz specializes in business topics such as discrimination and harassment, background checks, and security. She is the editor of J.J. Keller’s Employment Law Today newsletter and Essentials of Employment Law manual. For more information, visit www. jjkeller.com/hr and www. jjkellerlibrary.com.