Labor Law: Sexual Harassment in the Workplace

Written By: Joseph J. Nardulli

The current economic environment has sparked an avalanche of labor-related claims, by in many cases, employees who have been laid off or otherwise terminated from their employment. The theory of many of these claims is some form of discriminatory conduct or abuse of authority that the terminated employee sees as a means to obtain monetary gain based upon perceived discrimination or abuse within the workplace. Every employer must have a sensitivity to these issues to avoid liability and, if such a claim is brought, to have taken the preventative steps necessary to avoid a successful claim by a former terminated employee who brings such an action.

Sexual harassment is highly regulated both by the Federal government and the State of California as a form of sex discrimination. For Equal Employment Opportunity Commission regulations on sexual harassment, see 29 CFR pt 1604. The EEOC has also issued guidelines regarding sexual harassment that are published on its website. For California Fair Employment and Housing Commission regulations on sexual harassment, see 2 Cal Code Regs §§7287.6(b), 7291.1(f)(1).

Sexual harassment, over the last two decades, has been probably the most utilized type of claim against employers, especially in circumstances where employees have been terminated.

Sexual harassment can be broken down into two major types. The first type is commonly referred to as “Quid Pro Quo sexual harassment”, is the most obvious one, and in past years was much more rampant, in terms of claims, than today. Quid Pro Quo sexual harassment occurs when an employer requires sexual favors from an employee in exchange for a work related benefit. The examples are legion: from requiring a subordinate to have sexual relations with their supervisor or manager in order to keep their job, to requiring such favors to obtain a raise or promotion. These cases always turn on the facts and the ability of the employee and/or employer to prove or disprove the claim. It should be noted that often the accused member of management, the “harasser” often relies on claiming that whatever sexual activity took place was consensual. There is a good faith belief by the member of management that it was in fact consensual, as is the case when he or she shows a romantic interest in the employee and the employee (perhaps fearful of not responding positively to the advances of the manager) pretends to be attracted to the manager and engages in a relationship with the manager initially, in some cases, out of fear of retribution by the manager if he or she does not.

Often in these cases the manager is unwittingly lulled into a false sense that this is a normal consensual relationship, fueled by the employee’s reluctance to rebuff his or her advances for fear or some negative retribution by the manager if the employee doe not engage in the “relationship”. There are more obvious cases where the manager bluntly tells the employee that unless he/she provide sexual favors that they will be fired, or not obtain a promotion, or will be demoted from their current position. These blatant cases are not as often observed, since there has been a rising awareness in society in general that this type of behavior if proved will often have serious repercussions for the offending party including a costly lawsuit, the payment of damages to the aggrieved employee, and in many cases the loss of their own jobs.

The variety of sexual harassment where the member of management believes perhaps naively that that a relationship is consensual is often the most difficult to ferret out and avoid.

The second type of sexual harassment is the ‘hostile work environment” variety, which simply put, is where an employer allows or creates an environment which is sexually harassing by its very nature. This can take on numerous guises: sexual jokes, bragging about sexual encounters, making comments regarding the appearance or anatomy of an employee, or non-verbal actions can rise to the level of harassment, such as touching oneself or another, especially in sexually sensitive areas, or posting or circulating sexually oriented cartoons, posters, or pictures. See 2 Cal. Code Regs §§7287, 6(b) (1), 7291.1(f); Kelly-Zurian v. Wohl Shoe Co. (1994).

In the recent California Supreme Court ruling Miller v. Department of Corrections (2005) 36 C4th 446, 30 CR3d 797, the Court demonstrated how closely aligned and blurred the distinctions are between the two varieties of sexual harassment and consensual sexual relationships. The Court held  in Miller that in a case where it was found that there were only isolated instances of favoritism on the part of a supervisor toward a female employee, where it was admitted that he was having a sexual relationship with that employee that would not normally be actionable sexual harassment, a hostile work environment could be created by the supervisor’s behavior if it became sufficiently egregious, since it was sending a message that female employees were viewed by management as “sexual playthings” or the way to get ahead in the workplace was by engaging in sexual conduct with a supervisor.

It should be noted that employees who engage in sexual harassment are as liable as their employer. Further, a supervisor can justifiably be terminated for having a romantic relationship with a subordinate. See Barbee v. Household Auto.Fin.Corp. (2003) 113 CA 4^th 525, 6 CR3d 406. When there were consensual relationships between supervisors and subordinates, employers often put into effect policies which forbid such relationships. These policies may be adversely affected, however, based on the privacy rights of the individuals as to their activities when not at work. The case law, based on rights of privacy in California, indicated that individuals who are subject to discipline based on such policy are protected by their right of privacy for their activities when not at work. See Edgerton v. State Personnel Bd. (Dep’t of Transp) (2000) 83 CA 4^th 1350, 100 CR2d 491, Labor Code §§96(k) and 98.6 (giving California Labor Commissioner authority to address claims for loss of wages as a result of discipline for lawful conduct occurring during nonworking hours). It should be noted that in the Barbee decision, Barbee v. Household Auto.Fin.Corp. (2003) 113 CA 4^th 525, 6 CR3d 406, the  Barbee Court found that the employee could not establish that he had a reasonable expectation of privacy in pursuing his relationship with a subordinate employee. However, employees who desire to engage in consensual relationships will undoubtedly continue to argue that they are protected under a constitutionally mandated right to privacy.

Some authorities have argued that problems with consensual relationships can be dealt with in a fashion which will not violate current notions of rights to privacy. It is argued by such treatise writers that the institution of an evenly enforced policy that forbids dating by persons in direct reporting chain and also forbids employees from engaging in conduct that constitutes a conflict of interest should be upheld by the Courts. Moreover, an evenly enforced policy that (1) discourages dating and other close personal relationships; (2) requires disclosure of such relationships to the employer, should be enforceable. This gives the employer the ability to protect the company by taking steps to assure that there is no favoritism or harassment that comes from such a relationship.  The employer can also have the individuals who are engaged in the consensual relationship enter into what has been called a “love contract”.  In that “contract” the two employees confirm that their relationship is consensual, that they each understand and know how to use the employer’s policies that forbid harassment in the workplace, and provides a mechanism for reporting and resolving problems.

 STEPS TO BE TAKEN TO AVOID SEXUAL HARASSMENT CLAIMS

The first and most important step in dealing with sexual harassment in the workplace is education. Employer should have an organized educational program run on a regular basis that informs their employees as to the prohibition against sexual harassment. This should start at the time that any employee is hired. Employees are given a detailed written position statement by the employer describing in detail what sexual harassment is, and that it is against company policy and may be grounds for termination. Regular presentations during the course of the year on the issue of sexual harassment are an important way to insulate the company from such charges. The company handbook must have a detailed and complete discussion of what sexual harassment is and the company’s policy concerning sexual harassment. In this regard there must be a safe protocol established by the company so that individuals who feel that they are being harassed can immediately report in and the company can take appropriate action.