Harassment of any kind is never acceptable, but sexual harassment in the workplace can be especially toxic. Sexual harassment can take many forms and can cause real trauma. Victims often do not know how to address or fear retaliation if they report it. For some, the only two responses are either to allow it or quit. Neither of those options is acceptable.
At The Workplace Counsel, our sexual harassment lawyers based in Denver help employers proactively avoid sexual harassment claims as well as help employers facing claims of sexual harassment. The laws are very specific and stringent, as is the statute of limitations, so there is no room for error. Contact us at 303-625-6400 to schedule a consultation today.
What Constitutes Sexual Harassment?
Sexual harassment is sex discrimination in the workplace. It occurs when an applicant or employee is harassed on the basis of their sex. This includes harassment that is sexual in nature as well as behavior that is offensive in regards to a particular sex in general.
While sexual harassment generally conjures up an image of a male harassing a female, in reality, it can also be a female harassing a male, or a person harassing another person of the same sex. Keep in mind, to be considered harassment, the behavior must be more than a simple offhand, isolated comment. Harassment occurs frequently or is so severe that it results in the victim being forced to work in an offensive or hostile work environment.
In addition, it can be considered sexual harassment when the victim is fired, demoted, or passed over for promotion as a repercussion of the harassment.
As the above suggests and according to Title VII of the Civil Rights Act of 1964, two basic types of sexual harassment exist:
- Quid pro quo sexual harassment, which occurs when a superior or someone in a position of authority (e.g., manager or supervisor) asks for unwanted sexual favors or an inappropriate relationship in return for a promotion, pay raise, a promise not to fire, or other on-the-job benefits; or
- Hostile work environment, which occurs when employees are allowed to make crude jokes, share pictures or content of a sexual nature, make sexual comments, or other similar behavior to co-workers, thus, creating a hostile work environment
Examples of Sexual Harassment
Employers and employees should be clear on what actually constitutes sexual harassment. Following are examples of what is generally considered to be sexual harassment in the workplace.
- Inappropriate touching, rubbing, or rubbing up against another person
- Inappropriate sexual gestures
- Making offensive comments about a certain sex, in general,
- Commenting on the physical appearance of others, including particular body parts and/or clothing
- Sharing inappropriate sexual media, such as pornographic photographs and videos
- Making comments regarding a person's gender or sexual orientation
- Telling inappropriate, lewd, and sexually-based jokes
Liability in Sexual Harassment Cases
Employees can be held personally liable for sexually harassing co-workers or subordinates. Employers can also be held liable. Determining when an employee or an employer (or both) are liable for sexual harassment depends on the jurisdiction and the particulars of each situation.
Is the Employer Liable for Sexual Harassment?
To start the process to uncover the answer to this question, you should ask the following questions:
- Was the sexual harasser a person in a supervisory position to the victim?
- Did the harassment result in a hostile work environment?
- Did the employer have control over the employee committing the harassment?
- Did the employer know or should it have known about the harassment and failed to take prompt and proper corrective action?
- Did the victim suffer an employment loss, such as being fired or demoted?
- Was anyone in the company aware of the harassment, like a supervisor or someone in human resources?
- Does the employer make each employee attend training on sexual harassment?
- Are there employer policies in place to prevent sexual harassment?
- Are sexual harassment prevention policies implemented and executed?
Whether or not the employer is liable will come down to who, what, where, and when. Also, keep in mind that some states hold employers strictly liable for sexual harassment. Thus, finding fault – like the above questions are meant to do – is not necessary. This alone is the reason why you should speak to an employment law attorney in your area to make sure you know what the law is and if it applies so that you can address it timely and properly.
What Should Employers Do to Prevent Sexual Harassment?
Employers must take proactive steps to ensure applicants and employees have a safe, comfortable work environment free of hostility, discrimination and sexual harassment. They can do this by implementing preventive policies and procedures.
Education and Training
Employers should implement company-wide training to educate all employees on what constitutes sexual harassment and how to prevent it. This training should be repeated on a regular basis. It should be kept current, reflecting and incorporating legal updates on the subject.
Open communication regarding sexual harassment should be encouraged, with staff feeling as though they have an outlet to express their concerns.
Enforcement of Unambiguous Policies
Employers should also develop policies that address sexual harassment in the workplace, and make clear that it will not be tolerated. When an employee does complain about sexual harassment, their claim should be investigated promptly and the appropriate discipline should be taken against the harasser, including termination, if the complaint is validated.
An employer must address sexual harassment claims timely and appropriately in accordance with federal and state laws. Retaliating against an employee for reporting sexual harassment is unlawful, and action can be taken against the employer.
What Are Employee Responsibilities to Prevent Sexual Harassment in Colorado?
Employers are not the only ones that need to be proactive to prevent sexual harassment. Employees must also be active and vigilant to promote a healthy, non-hostile work environment. They can do this by familiarizing themselves with the employer's policies on sexual harassment and complying with the mandated rules. They should also remain aware of their surroundings, being watchful of harassment against themselves and others. When sexual harassment occurs, the employee should make it clear to the harasser that they find their conduct offensive and ask them to refrain from such behavior in the future. Also, when a co-worker has been the victim of sexual harassment, it is important that others show them support in their actions to stop the harassment.
Contact an Employment Law Attorney Today
It is critical to consult a sexual harassment lawyer as soon as possible after you have received a complaint of sexual harassment, retaliation, or any other type of discrimination in the workplace. As time goes by, witnesses may forget details and deadlines will expire.
At The Workplace Counsel, our employment law attorneys will provide legal guidance on handling a sexual harassment complaint. Contact us today by filling out the online form or calling us at 303-625-6400 to schedule a consultation.