Jan 09, 2018

Sexual harassment in the workplace

Since October 2017, millions of women and men wrote #MeToo posts on social media to publicize and share their experiences of sexual assault and harassment. At the same time, we have seen a growing number of men in many different industries who have resigned or lost their positions after sexual harassment complaints. These events have left women and men employees unclear as to whether their actions are appropriate or could be challenged in the changing dynamics of an evolving workplace.

Some people fear this uncertainty will result in the unintentional restriction of workplace collaboration and mentoring, particularly if men and women—fearful of being accused of improper conduct—steer away from constructive and positive work interactions. Employees, concerned with stepping over a “moving line,” may choose to isolate themselves or work only with employees of the same sex and orientation to avoid facing possible down-the-line accusations from unhappy coworkers or subordinates.

With the increasing number of well-publicized complaints, some employers may find it more expedient simply to terminate accused at-will employees rather than investigate the complaints made against them to thoroughly understand the nature and context of the circumstances. After all, a human resource professional is a risk manager, not an impartial judge or fact finder, and at-will employment provides no guarantee of due process. Employers can and should be better than that, but, to be fair, the circumstances defining sexual harassment are not always clear. Some acts leave no doubt, such as:

  • a Matt Lauer surreptitious and unwelcome door locking, leaving an employee unwillingly hostage and alone with a superior; or
  • demanding sex for a job, a movie role or a promotion.
But what about the casual “you look nice today” compliment, one-on-one mentoring or friendly exchanges of text messages between coworkers? People spend much of their day in an office with their coworkers rather than at home with their families. Are employers seeing only workplace collegiality in a post-email world or has bantering crossed a line?

Of course, the legal response is that it depends upon the facts of each situation. Behavior must be taken in its context and with an understanding of what was meant and how it was received. Although there are local, state and federal statutes governing sexual harassment in the workplace, typically there are subjective and objective components to every claim.

  • Was the conduct severe and pervasive?
  • Would the reasonable person find the action to be offensive or unwelcome?

Employers also must consider which law applies. In Illinois, the Illinois Human Rights Act prohibits sexual harassment in the workplace and includes employers of just one employee. But, Title VII of the Civil Rights Act prohibits sexual harassment for employers of 15 or more employees.

Sexual harassment is generally considered a type of gender discrimination. There are two types of harassment claims: quid pro quo (this for that) harassment and hostile work environment. Quid pro quo harassment occurs when employment decisions or treatment are based upon an employee’s acceptance or rejection of unwelcome sexual conduct. A hostile work environment is found when severe or pervasive unwelcome conduct renders a workplace atmosphere intimidating, hostile or offensive. This can include unnecessary touching, commenting on physical attributes, displaying sexually suggestive pictures and using crude language.

Best practices encourage employees to report all concerns of harassment and employers should investigate all of them. Employers should:

  • treat harassing conduct as misconduct, and discipline accordingly;  
  • make it clear that every employee is valued and respected and that their employer will take appropriate actions to protect them;
  • interview the complaining employee, any witnesses and the alleged perpetrator of the offensive conduct; and
  • collect, review and preserve any documentary evidence.

Employers should take employee concerns seriously and investigated them carefully. Employees should (1) know that they have been heard and (2) be assured that the accusations will be critically evaluated and not simply taken at face value. This care in communicating and following a thoughtful policy should lead to a respectful, trusting and positive work environment. The goal should be to eliminate sexual harassment without destroying collaboration in the workplace.

With greater awareness of sexual harassment and increased publicity of complaints, employers are likely to see an uptick in these types of complaints. Prudent employers should evaluate and update workplace policies and investigative techniques to protect the workforce, which could prevent the loss of valuable employees. Feel free to contact one of the Chuhak & Tecson employment law attorneys for assistance. 

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Jeralyn H. Baran, Principal

This alert originally appeared in the January 2018 Employment Focus newsletter.