Sexual Harassment in the Workplace
Sexual harassment has become a subject in the news again, with the resignation of Herman Cain from the Republic Presidential Primaries, the termination of head footbal coach Joe Paterno at Penn State over his mishandling of the Sandusky sexual abuse matter and various other high profile events bringing the subject to the fore.
Most lay people do not have a clear understanding of what sexual harassment is, who is protected from it or who may be liable for it. First, let's define what it is, because there is a distinction between sexual harassment and sexual discrimination. The commonly accepted legal definition of sexual harassment is as follows: In order to support a hostile environment claim under Title VII of the Civil Rights Act of 1964 based on sexual harassment by a supervisor an employee must establish the following elements: (1) that he or she belongs to a protected groupi (2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment must have been based on the sex of the employee (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable. Mendoza v. Borden, Inc,, 195 F.3d 1238 (11th Cir. 1999).
There is a difference between sexual harassment and sexual discrimination. While all harassment is a form of discrimination, not all discrimination is harassment, as the definition above implies. Treating women less favorably than men on the basis of gender is discrimination, but it isn't harassment unless there is a sexual component. Discrimination is illegal and unfair, but harassment is illegal, unfair, abusive, hostile, unwanted and offensive. In the case of a supervisor harassing a subordinate, the supervisor is an agent of the employer, and his (and occasionally her) acts are those of the employer. In the case of the co-worker, customer, vendor or other non-supervisor, the employer is only liable if the employer knew about the harassment and failed to stop it. If the employer is subject to a local, state or federal anti-harassment law, the employer is automatically liable for harassment or discrimination and does not have a posted anti-harassment policy that provides all employees and avenue by which to complain and obtain relief.
There are multiple sources of protection that flow from federal, state and local codes, laws or ordinances. All are analyzed in the same fashion, though protection under state and local laws may be extended to cover conduct that is not protected under federal law, such as sexual identification or persuasion. Also, the number of employees an employer must have to qualify as "covered" under the law may be less than the federally required 15, and quite typically is 5 or more. Needless to say, a small employer with 5 or more employees, but less than 15, will not usually know that he is covered by a local ordinance that has the same force and effect as state and federal law. Also, the smaller the employer, the less likely they are to have an employee handbook, or a published anti-harassment policy.
As to the fourth element, severity and pervasiveness, the Petitioner "must establish not only that she subjectively perceived the environment as hostile and abusive, but also that a reasonable person would perceive the envj-ronment to be hostiIe and abusive." Gupta v. FIa. Bd. of Regents, 2L2 F.3d 571' 583 (1lth Cir. 2000). In evaluating the objective severity of the harassment, one must consider, among other facLors: "(1) the frequency of the conduct; (2) the severity of the conduct; ( 3 ) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance." Id. (citing Mendoza v. Borden, Inc., I95 F.3d 1238, 1245 (1lth Cir. 1999)). Thus the law does not protect with the super-sensitive, or the hardened victim. There must be both an objective and subjective impact. The easily offended will not meet the objective test, and the thick-skinned will not meet the subjective test.
The more intrusive and severe the behavior of the harasser, the more damages will be presumed the conduct, while an isolated comment or act that is nonsexual or nonphysical, the more likely it is to be deemed a stray remark or act. Alleged discriminatory acts against members of the same class of protected employee (females, in our example) may be used as evidence against the same harasser because it tends to show a pattern and practice, as well as animus against the class affected, as well as the failure of the employer to deal with a continuing problem. That is why employers who follow the law cannot guarantee anonymity or confidentiality to the complainant. Once a harasser has been identified the employer has an affirmative duty to investigate and determine if illegal conduct occurred. If nothing else, the employer should use the opportunity to reinforce its zero-tolerance for harassment and discrimination. Just as there may be habitual harassers in the work place, there may also be habitual "victims" who cry wolf without cause. The employer has no choice to investigate, but either habitual offender is subject to discipline or discharge. The complainant is usually perceived of as being "super protected" because a second part of the anti-harassment law protects the whistleblower from retaliation, and the latter is generally much easier to prove than the underlying claim of harassment.
Gender is just one protected class under Title VII and Ch. 760, Florida Statutes. Also included is race, color, national origin and religion. Protected in a similar fashion under separate federal statutes are age, pregnancy, disability, military service, jury service, voting and whistleblowing, Florida also adds marital status to the list of protected classes, but not sexual preference, which varies from county to county and city to city.
Most lay people do not have a clear understanding of what sexual harassment is, who is protected from it or who may be liable for it. First, let's define what it is, because there is a distinction between sexual harassment and sexual discrimination. The commonly accepted legal definition of sexual harassment is as follows: In order to support a hostile environment claim under Title VII of the Civil Rights Act of 1964 based on sexual harassment by a supervisor an employee must establish the following elements: (1) that he or she belongs to a protected groupi (2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment must have been based on the sex of the employee (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable. Mendoza v. Borden, Inc,, 195 F.3d 1238 (11th Cir. 1999).
There is a difference between sexual harassment and sexual discrimination. While all harassment is a form of discrimination, not all discrimination is harassment, as the definition above implies. Treating women less favorably than men on the basis of gender is discrimination, but it isn't harassment unless there is a sexual component. Discrimination is illegal and unfair, but harassment is illegal, unfair, abusive, hostile, unwanted and offensive. In the case of a supervisor harassing a subordinate, the supervisor is an agent of the employer, and his (and occasionally her) acts are those of the employer. In the case of the co-worker, customer, vendor or other non-supervisor, the employer is only liable if the employer knew about the harassment and failed to stop it. If the employer is subject to a local, state or federal anti-harassment law, the employer is automatically liable for harassment or discrimination and does not have a posted anti-harassment policy that provides all employees and avenue by which to complain and obtain relief.
There are multiple sources of protection that flow from federal, state and local codes, laws or ordinances. All are analyzed in the same fashion, though protection under state and local laws may be extended to cover conduct that is not protected under federal law, such as sexual identification or persuasion. Also, the number of employees an employer must have to qualify as "covered" under the law may be less than the federally required 15, and quite typically is 5 or more. Needless to say, a small employer with 5 or more employees, but less than 15, will not usually know that he is covered by a local ordinance that has the same force and effect as state and federal law. Also, the smaller the employer, the less likely they are to have an employee handbook, or a published anti-harassment policy.
As to the fourth element, severity and pervasiveness, the Petitioner "must establish not only that she subjectively perceived the environment as hostile and abusive, but also that a reasonable person would perceive the envj-ronment to be hostiIe and abusive." Gupta v. FIa. Bd. of Regents, 2L2 F.3d 571' 583 (1lth Cir. 2000). In evaluating the objective severity of the harassment, one must consider, among other facLors: "(1) the frequency of the conduct; (2) the severity of the conduct; ( 3 ) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance." Id. (citing Mendoza v. Borden, Inc., I95 F.3d 1238, 1245 (1lth Cir. 1999)). Thus the law does not protect with the super-sensitive, or the hardened victim. There must be both an objective and subjective impact. The easily offended will not meet the objective test, and the thick-skinned will not meet the subjective test.
The more intrusive and severe the behavior of the harasser, the more damages will be presumed the conduct, while an isolated comment or act that is nonsexual or nonphysical, the more likely it is to be deemed a stray remark or act. Alleged discriminatory acts against members of the same class of protected employee (females, in our example) may be used as evidence against the same harasser because it tends to show a pattern and practice, as well as animus against the class affected, as well as the failure of the employer to deal with a continuing problem. That is why employers who follow the law cannot guarantee anonymity or confidentiality to the complainant. Once a harasser has been identified the employer has an affirmative duty to investigate and determine if illegal conduct occurred. If nothing else, the employer should use the opportunity to reinforce its zero-tolerance for harassment and discrimination. Just as there may be habitual harassers in the work place, there may also be habitual "victims" who cry wolf without cause. The employer has no choice to investigate, but either habitual offender is subject to discipline or discharge. The complainant is usually perceived of as being "super protected" because a second part of the anti-harassment law protects the whistleblower from retaliation, and the latter is generally much easier to prove than the underlying claim of harassment.
Gender is just one protected class under Title VII and Ch. 760, Florida Statutes. Also included is race, color, national origin and religion. Protected in a similar fashion under separate federal statutes are age, pregnancy, disability, military service, jury service, voting and whistleblowing, Florida also adds marital status to the list of protected classes, but not sexual preference, which varies from county to county and city to city.
