Ask the Lawyer: Sexual harassment sometimes hard to define

Q: With all the talk of sexual harassment and the #metoo movement, I’m afraid to interact with others at work, in case I somehow offend them. How can I make sure that normal office behavior isn’t somehow seen as sexual harassment?

A: Sexual harassment in the workplace is not a new problem, but increased media attention has led to a surge in the number of cases reported.

On Oct. 5, 2018, the Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing the federal law against workplace discrimination, reported a 50 percent increase over 2017 in the number of sexual harassment lawsuits it had filed. The number of people filing charges of sexual harassment against their employers was up 12 percent over 2017. Even so, it’s estimated that 70 percent of all cases of sexual harassment are never reported.

Those cases cost employers a boatload of money: This year, the EEOC has recovered $70 million for employees in the cases it handled. And that is just the tip of the iceberg: The majority of sexual harassment claims are filed by individuals, not by the EEOC.

But what is sexual harassment? The EEOC defines it as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature … when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”

The law divides sexual harassment claims into two main categories: “quid pro quo” and “hostile environment.” Quid pro quo — Latin for “this for that” occurs when a work superior takes advantage of his or her authority to get sexual favors or acquiescence in exchange for advancement, or with the threat of demotion or discharge. The allegations involving movie mogul Harvey Weinstein are classic examples of quid pro quo sex harassment: Weinstein allegedly helped advance the film careers of the women who put up with his sexually explicit behavior and sexual conduct, while women who refused or complained saw their movie careers hit the skids.

But most cases of sexual harassment involve claims of a “hostile environment.” A few rude comments are (usually) not enough to create a hostile environment. To prove a claim, the plaintiff/victim must allege that the harassment was “sufficiently severe or pervasive so as to alter the conditions of a plaintiff’s employment and create an abusive work environment” and the conduct complained of must be “objectively and subjectively offensive.” O’Rourke v City of Providence, 235 F3d 713, 728 (CA 1, 2001).

You don’t have to worry that truly innocent comments will result in valid claims of sexual harassment — only conduct that a “reasonable person” would find hostile or abusive is forbidden. Context matters. In a 2016 case, the First Circuit Court of Appeals ruled in favor of a plaintiff where, even though her supervisor had not said anything explicitly sexual, it was clear from the context of his behavior that he was looking for sexual favors.

Finally, in order for conduct to be harassing, it must be unwelcome. This is tricky, because many victims of harassment, male and female, fail to say anything about the behavior they find offensive until it has become intolerable, which could lead the harasser to believe the conduct is acceptable. Don’t count silence as acceptance. If the conduct or comments could reasonably be construed as offensive, assume they will be. And, if a complaint is made, immediately stop the conduct complained of — even if it seemed reasonable to you.

Workers and employers should use common sense:

• Don’t ask about someone’s sexual history.

• Don’t, make sexual comments about how they look (“You look hot!”).

• Don’t touch a co-worker without permission.

• Don’t talk about a co-worker in a derogatory manner.

• Don’t put up posters at work that portray women (or men) as sex objects (Swimsuit Edition, Harley Girls Calendar, etc.).

• Don’t whistle or cat-call, don’t use rude or obscene language to refer to members of either sex.

• Don’t touch yourself in a sexual manner around other people, or make rude hand or body gestures (pelvic thrusts, etc.).

• Don’t stand too close to a co-worker, block his or her way, etc.

• Don’t repeatedly ask out a co-worker or employee when he or she has declined the invitation.

• Don’t engage in “stalking behavior.”

If you treat your co-workers professionally and with respect, you should not have to worry about sexual harassment claims and you will contribute to a smooth-running operation.

Attorney Daniel A. Gwinn’s Troy practice focuses on employment law, probate and trusts and estates. Contact him with legal questions at [email protected] or visit gwinnlegal.com. “Ask the Lawyer” is informational only and should not be considered legal advice.

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