Sexual Harassment 
What You Don't Know Can Hurt You.
From: Highbeam Research
Date: 5/1/2000; Publication: Units;
Author: FRANKLIN, LYNN G.
Do you know what sexual harassment is and when
your company may be held liable for it? This
will provide an overview of the various types
of sexual harassment for which an employer can
be liable, as well as examine areas of the law
which require further definition.
Please complete the sexual harassment survey
available through the National Apartment Association's
website--www. naahq.org--by June 30. Responses
will remain confidential. Survey results will
be published in a future issue of Units.
Sexual harassment has received more than its
fair share of media attention in recent years.
While the media often focuses on the emotional
or dramatic side of the subject, from an employer's
perspective, the real concerns are what is prohibited
and how do you prevent it from occurring in
your business?
Employers have good reason to be concerned
about the potential occurrence of sexual harassment.
In recent rulings by the United States Supreme
Court, there is greater potential for employer
liability for sexual harassment under certain
circumstances. Other decisions of the courts
have extended Title VII, the federal law which
prohibits sexual discrimination and harassment
in the workplace, to a wide array of scenarios,
most of which employers never anticipated they
might be responsible for.
With all the information tossed about in recent
years regarding the subject, most employers
and property owners/ managers probably believe
they know enough about sexual harassment to
protect themselves against it. Most employers
would be wrong to make that assumption, based
on statistics. The current law would indicate
the same. Last year, the Equal Employment Opportunity
Commission (EEOC) received 15,222 sexual harassment
charges against various employers throughout
the country. Almost any employer could wind
up facing an EEOC charge or worse, like a federal
lawsuit, simply by failing to know what goes
on daily in the workplace and by failing to
understand the potential ramifications of conduct
that might seem innocent at the time.
The common and emerging faces of sexual
harassment
Under Title VII and most related state legislation,
there are various types of sexual harassment
for which an employer can be held liable. The
most widely known and discussed variations are
quid pro quo harassment and hostile work environment
claims. Quid pro quo harassment claims involve
situations where a property manager makes unwanted
sexual advances to which an employee must submit
to avoid detrimental impact of job benefits,
such as promotions, work assignments, raises
or continued employment. Of course, conduct
which could give rise to a claim for quid pro
quo sexual harassment is not often so simple
or clear cut. The threat of consequence does
not necessarily have to be spoken, but could
be implied through non-verbal conduct or resulting
job loss following a refusal to comply.
Hostile work environment claims arise where
there is allegedly offensive conduct or conditions
of a sexual or gender specific nature in the
workplace which are sufficiently pervasive so
as to alter the conditions of the victim's employment
and create an abusive work environment. Hostile
work environment claims can arise from the conduct
of a supervisor, co-worker, or even a non-employee.
The identity of the perpetrator is relevant
for purposes of the degree in which the employer
will be held liable. The severity of the conduct
which gives rise to a hostile work environment
claim, however, is generally the same regardless
of the perpetrator.
Harassment by a supervisor
Under the current law, when the hostile work
environment is created by a supervisor and the
employee suffers job detriment, the employer
can be held liable. From a legal perspective,
that means the employer has no defense once
the employee establishes conduct which violates
Title VII. Previously, employers were only held
liable when an employee proves quid pro quo
harassment. In contrast, liability for a hostile
work environment created by a supervisor, depended
more on whether the employer took prompt action
to resolve the situation once aware of it.
Under the current standards, however, the
line between quid pro quo harassment claims
and hostile work environment claims blurs. An
employer is now liable when a sexual advance
or inappropriate sexual conduct by a supervisor
is followed by job detriment or hostility from
the supervisor, without any expression of a
threat of consequences.
The crucial factor for liability is whether
the employee suffered a "tangible job detriment"
or a "tangible employment action"
which ultimately is detrimental to the employee.
A "tangible job detriment" or "tangible
employment action" has been defined as
a significant change in employment status. Such
a broad definition, not surprisingly, has left
courts with the burden of determining what rises
to the level of prohibition.
The general consensus is that unfulfilled
threats are insufficient, but termination or
demotion are clearly sufficient to qualify as
tangible employment action. Some examples of
tangible employment actions in between these
two extremes include: failure to hire or promote;
undesirable reassignment; or a decision causing
a significant change in benefits, compensation
decisions, work assignment or job duties.
When an employee is harassed by a supervisor
and no tangible employment detriment or action
follows, an employer still has a legal defense
which they can raise as an affirmative defense
to liability or damages. In this circumstance,
the employer may avoid liability by showing
conduct designed to deter harassment in the
workplace.
The affirmative defense which may be asserted
has two elements. First, the employer must show
it used reasonable care to prevent and correct
any harassment. Second, the employer must show
that the employee failed to take advantage of
any preventive opportunities provided by the
employer. The EEOC has strict guidelines regarding
what evidence is sufficient to establish this
defense. All employers should take heed of those
guidelines when developing and implementing
policies and practices designed to deter harassment.
Harassment by a co-worker
A slightly different standard of liability
is imposed on an employer where a co-worker
is responsible for creating a hostile work environment
for an employee of equal or greater authority.
It cannot be said that the acting party is acting
with the authority of the employer, or that
the co-worker was directly responsible for any
tangible employment action unfavorable to the
victim. Accordingly, an employer is only held
liable for harassment by a co-worker in which
the employer know or should have known of the
conduct, but failed to take prompt action. For
this type of claim, the employer is not held
accountable for conduct of employees of which
it had no knowledge. However, an employer is
responsible to make reasonable efforts to know
what goes on in the workplace. In that regard,
certainly what an employer is not aware of can
become a serious issue of potential liability.
The elements of a claim for sexual harassment
by a co-worker require showing that the employee:
* was subjected to unwelcome harassment;
* that the harassment was based on the employee's
sex;
* that the harassment was sufficiently severe
or pervasive to alter a term or condition
of employment, and;
* that the employer knew or should have
known of the harassment, and failed to take
prompt action.
Conduct that is not severe enough to create
an objectively hostile or abusive environment--an
environment that a reasonable person would find
hostile or abusive--is beyond Title VII's purview.
Likewise, if the victim does not perceive the
environment to be abusive, the conduct has not
altered the conditions of the victim's employment,
and there is no Title VII violation.
Conduct which creates a Hostile Work
Environment
By law, to rise to the level of unlawful conduct
under Title VII, the conduct in question must
be sufficiently pervasive and severe as to alter
the conditions of employment. The issue of pervasiveness
is relatively clear cut. In most cases, a viable
claim involves repeated conduct. Isolated acts
or occasional episodes are not enough. Courts
will, however, look at singular incidents of
harassing conduct to determine if, over time,
such conduct resulted in a pervasive atmosphere
of hostility.
The issue of the severity of the conduct,
however, is a murkier topic. While one incident
is generally insufficient to meet the requirement
of pervasiveness, a single act could create
a hostile environment of sufficient severity.
As noted earlier, actionable conduct consists
of that which a "reasonable" person
would find offensive and objectionable, and
that which the victim found offensive and objectionable.
While circumstantial and direct evidence of
the victim's subjective view of the conduct
can be evidenced by the victim's testimony,
and observable conduct or actions of the victim,
no such evidence is available to establish whether
a "reasonable" person would find the
conduct in question to be offensive or objectionable.
Indeed, for a hostile work environment claim,
there is no universal "objective"
guideline to determine when conduct crosses
the line from banter to harassment. Courts have
provided a few examples of general conduct which
could give rise to a hostile work environment
claim, which include sexual comments or jokes;
unwelcome physical contact; cartoons, posters,
magazines or drawings with either direct sexual
content or which could be construed as having
sexual connotations; or any combination of the
preceding which may be deemed to be "sufficiently"
pervasive to alter the work environment. Nonetheless,
the insight offered by the courts still amounts
to only general classifications of conduct or
circumstances, all of which become relevant
only by a matter of degree. Unfortunately, the
questions still remain. What conduct is sufficiently
severe? Who is the "reasonable" person?
When workplace conduct crosses the "line"
is still one of the questions which hangs over
the upper-level management and human resource
professionals who are required to intervene
in harassment disputes. This group often look
to the courts for guidance on such issues. More
often than not, even in litigation, that determination
is left for counsel to argue and the court to
decide upon their own experiences, understandings,
and prejudices.
To define what conduct our society deems to
be "reasonably" objectionable, this
sexual harassment survey has been developed.
The survey includes various depictions of workplace
situations which include scenarios of varying
circumstances and degrees of severity. The survey
is designed to establish a national standard
as to the objective component of a hostile work
environment claim, such as what conduct is offensive
or objectionable to the average or "reasonable"
person.
A national sampling of responses to the survey
will provide a clear understanding as to what
conduct is deemed tolerable and intolerable
in present day society, with consideration of
relevant cultural variables, such as the geographic
region, type of employment, gender, age, education,
and other relevant factors of diversity. Please
visit the NAA website to take the survey.
Equal Employment Opportunity Commission
Definitions
Title VII "... an unlawful employment
practice for an employer to discriminate against
any individual with respect to his [or her]
compensation, terms, conditions, or privileges
of employment because of such individual's sex."
42 U.S.C. 2000e-2(a)(I).
Sexual harassment under Title VII: "...
unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct
of a sexual nature."
See 20 C.F.R. 1604. 11(a) (1993).
NAA Industry Related Scenarios of
Sexual Harassment
The following are examples of potential situations
which can or have arisen in the multifamily
housing industry. Will the company be liable
for the conduct?
Example 1 A male property manager
makes suggestive and flirtatious comments to
the part-time female leasing consultant regarding
her appearance and attire. He has also started
to drop by the complex on the weekends, during
his off-duty hours, while the leasing consultant
is working alone. He has asked her out on several
of those occasions, and she has repeatedly turned
him down. The property manager did not intend
to offend the leasing consultant, or make her
uncomfortable, but is unaware of the impact
of his actions. The leasing consultant states
her concerns over his conduct to her co-workers,
but not to anyone in management.
Is this sexual harassment? A court could likely
conclude that the property manager's conduct
is sexual harassment under Title VII, given
the supervisory position of the property manager,
the nature of the comments, the unwarranted
visits, and requests for dates. The leasing
consultant's failure to report to management
is of no consequence if she subsequently suffers
some form of job detriment by the property manager.
If her work conditions remain the same, the
court will examine the reasonableness of her
failure to tell management, and the company's
practices and policies regarding sexual harassment
in the workplace. The fact that she discussed
the matter with co-workers only adds to the
company's potential liability, in that the company
may still be found to have had knowledge of
the conduct, or have had reason to know of it.
All employees should be expected to report incidents
which they feel violate the company's policies.
Allowing them to do so anonymously might further
their interest in reporting information of this
nature.
Example 2 A male maintenance technician
supervisor makes suggestive comments in conversations
with female members of the office and leasing
staff, and he frequently discusses his sexual
preferences and exploits. He also asks the female
employees about their sexual experiences. The
staff has not shown any interest in conversations
of this sort with him, and a few of them have
told him to "Get lost." The female
employees do not work with the maintenance technician
supervisor on a day-to-day basis, and the comments
do not occur every time he visits the office.
The female property manager has witnessed these
conversations, but has not instructed the maintenance
technician supervisor to refrain from such conduct.
She is concerned that well-trained employees
are difficult to find, and does not want to
have to replace her maintenance technician supervisor,
who is otherwise a good employee. After another
suggestive comment by the maintenance technician
supervisor, a female employee tells the property
manager that she found the comments disgusting.
The property manager says, "Well, you know
how he is, but you don't work with him all the
time, so just ignore him."
Is this sexual harassment? Again, a court
would likely find this conduct to create a hostile
work environment, and therefore, as actionable
sexual harassment. Since the conduct is by a
co-worker, the female employees subjected to
the hostile environment need not have suffered
a job detriment. Rather, for the company to
be liable, it must merely have had knowledge
of the situation, and failed to take action
to remedy it. While the property manager's concern
over qualified employees is understandable,
that is not a ground to allow one employee to
become a menace to the others. The property
manager could likely have resolved the situation
by addressing the matter openly with the maintenance
technician supervisor, first with a verbal warning,
then followed by a written warning, and subsequent
termination for repeated conduct. This protects
the company, the female employees, and gives
the offending employee the chance to alter his
workplace conduct.
Example 3 Two female potential residents
have taken a fancy to a male leasing consultant,
and begin to flirt with him when he takes them
to view the model apartment home. They stand
in close proximity to him during the tour, and
ask him many personal questions, including his
marital and dating status. Before deciding to
rent an apartment home from him, they return
several times while he is on duty, and request
to be shown the model again. During the last
such visit, one of the potential residents comments
on the leasing consultant's physique and pinches
him. After this incident, he begins to receive
frequent calls from one of the females while
he is at work. He finally asks another employee
to assist the two female potential residents
and tells the property manager he feels uncomfortable
assisting them. Because he is somewhat embarrassed,
he does not explain the situation to his property
manager.
Is this sexual harassment? Although the potential
residents are not employees, they have contact
with the leasing consultant through the scope
of his employment. Both the Courts and the EEOC
have found such conduct by a non-employee to
be actionable in the same manner that it would
be if the conduct were by a co-worker, with
the exception that the employer must have some
reason to know of the conduct before liability
will ensue. The leasing consultant informed
the property manager of a concern, and asked
another employee for assistance. Also, an employer
is held to have knowledge of conduct which transpires
on a frequent basis in an open and observable
way. The other employees likely noticed the
return visits of the two females, and, if the
company maintained traffic records with information
regarding the visitors, the company could be
found to have had sufficient information regarding
the situation to be held liable. All of those
factors weigh in favor of liability on the part
of the company. To avoid liability, the company
must follow-up on all employee concerns to ensure
that necessary information is not ignored. It
is also a good practice to maintain an open-door
policy with employees, allowing them to apprise
management of situations which arise in the
workplace. Employees, at all levels, should
be advised to notify management or human resources
of any unusual conduct by a non-employee which
takes place in the workplace or in the scope
of employment. A company can be held liable
for the conduct of the public, the residents,
and even vendors, who interact with employees.
Court Cases
Same Sex Harassment
Does a same sex harassment claim fall under
Title VII?
Case: Oncale
v. Sundowner Offshore Services, Inc., 118 S.
Ct. 998, 1003 (1998).
Decision: Affirmative
Analysis: The Supreme Court was faced
with harassment of a homosexual male employee
by other male employees. The conduct which the
Court found within the purview of Title VII
was the harassment directed toward the employee
because of the harasser's attitude toward homosexual
men. The distinction was that if the harassment
was only due to the victim's sexual preference,
and it was evident those involved in the harassing
conduct would have treated a homosexual female
in the same manner, there would be no Title
VII liability. In short, the critical issue
is whether a member of one gender is exposed
to conditions of employment to which members
of the other gender are not. The Supreme Court
noted that courts should not confuse "horseplay,
intersexual flirtation, or ordinary socializing"
as unlawful conditions of employment.
Non-Employee or Third Party Harassment
Does Title VII protect individuals beyond
the traditional victim of harassment or discrimination
and which circumstances fall under that protection?
Case: Lockard
v. Pizza Hut, et al.
Decision: Affirmative
Analysis: A waitress was awarded
$200,000 in compensatory damages for a hostile
work environment created by two customers. The
imposition of liability on the employer for
the conduct in question was premised on the
expectation that the employer ultimately has
control over the conditions of the work environment.
A non-employee may also be able to sue the employer
of a harasser in which the non-employee came
into contact with the harasser solely through
the harasser's employment. This type of claim
would arise in circumstances directly converse
to those in the Lockard case--where, for example,
a customer is harassed by an employee.
Expansion of Sexual Harassment Cases
What constitutes acceptable conduct?
Case: Faragher v. City of Boca Raton
Decision: "... in order to be
actionable under the statute, a sexually objectionable
environment must be both objectively and subjectively
offensive." Faragher, 118 S. Ct. at 2283.
Analysis: the Supreme Court directed
lower courts to examine "all of the circumstances"
when considering whether workplace conduct rises
to the level proscribed by Title VII.
Lynn G. Franklin, Esq.
Ms. Franklin is managing shareholder for Franklin
& Johansen, P.A., in Orlando, Fla. She is
Franklin & Johansen's senior counsel for
all aspects of employment and civil rights litigation
in Florida and federal courts on behalf of public
and private employers.
COPYRIGHT 2000 National Apartment Association
