Not joking around about workplace sexual harassment

Dear Mary, We have a friendly workplace, and my employees sometimes go out after work and engage in typical “water cooler” joke telling. How do I know what crosses the line? I’m not sure that I understand what constitutes sexual harassment. Am I liable if an employee harasses another employee? What can I do to prevent harassment?

Sexual harassment laws protect male and female employees, job applicants, and even independent contractors (under the Fair Employment and Housing Act, but not Title VII).

What constitutes sexual harassment? Under state and federal law, sexual harassment generally breaks down into two categories: “quid pro quo” and hostile environment harassment. Some conduct may qualify as both types.

Quid pro quo harassment occurs when an employment benefit (or absence of detriment) is conditioned on submitting to unwelcome sexual conduct. “Unwelcome” sexual conduct is conduct that the employee did not ask for or incite and that is undesirable or offensive to the employee. For example, if an employee had to go on a date with a supervisor in order to get promoted or not be terminated.

Hostile environmental harassment occurs when the work environment is made hostile or abusive by sexual conduct. To prove such harassment, an employee must show that they were subject to unwelcome verbal or physical conduct of a sexual nature, and the conduct was severe or pervasive enough to create an abusive working environment.

The conduct would have to offend, humiliate, distress or intrude on the employee to the point where it affects the employee’s ability to perform their job as usual, or otherwise interferes and undermines their sense of well-being.

The behavior that is most commonly involved with hostile environment cases includes unwanted sexual advances or propositions, verbal conduct, physical conduct and visual harassment.

Verbal behavior can include slurs, derogatory remarks, or comments about a person’s body, appearance or sexual activity. Physical behavior can include an actual attack or physically obstructing movement. Visual harassment can include ogling, provocative gestures, or even displaying an offensive cartoon.

The standard for determining whether conduct substantiates an abusive environment is whether a reasonable person in the same position would find it abusive. In evaluating abusive conduct, courts consider the conduct’s frequency and severity, whether it was threatening, humiliating, or merely offensive, and whether it unreasonably interfered with the employee’s work performance.

As an employer, you can be liable for failing to take all reasonable steps to prevent workplace discrimination and harassment. If harassment occurs, you have a duty to take remedial action, not only against the harasser, but to deter potential harassment from other employees.

Workplace sexual harassment prevention starts with employers establishing, communicating, and enforcing strict policies prohibiting harassment. You should adopt written policies and procedure for making complaints. If an employee communicates a potential harassment, take it seriously and address the situation immediately.

Employers may be liable for harassment by co-workers if they knew or should have known that harassment was taking place and failed to take immediate and appropriate corrective action. Corrective action may involve expressing strong disapproval of the conduct, appropriate disciplinary sanctions, and training employees about their rights and how to exercise them.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.