Harvey Weinstein’s name is now synonymous with allegations of sexual harassment in the workplace. The Weinstein allegations and the #MeToo movement have revealed that sexual harassment and objectification of female employees extends far beyond the inner circles of Hollywood’s elite.
Today, employers must ensure that sexual harassment in the workplace is eliminated. This article focuses on some cases that have formed today’s law governing sexual harassment claims and closes with some suggestions of how employers can protect their employees and themselves from these increasingly common claims. (The law against harassment applies equally to men and women; the reader is asked to remember this when this author uses single-gender pronouns.)
I. The Civil Rights Act of 1964
The opening analysis of almost every discrimination-based claim against an employer is a recitation of Title VII of the Civil Rights Act of 1964 (“the Act”). Section 703(a) states:
“It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin…
42 U.S.C. §2000e-2. It is on this statute that employees and the Equal Employment Opportunity Commission rely in litigating sexual harassment cases. The crown jewel of the American civil rights movement, the Act was enacted to protect vulnerable populations from discrimination by their employers, but it offers little to no guidance on the daily behavior employers and employees should follow. For specificity, we look to cases interpreting it.
II. Sexual Harassment Claims — How Are They Assessed?
There are two types of sexual harassment under the Act: “quid pro quo” and “hostile work environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986). Quid pro quo claims arise where an employer engages in sexual misconduct that is “directly linked to the grant or denial of an economic quid pro quo.” Id. at 65. On the other hand, hostile work environment claims arise from an employer’s conduct that has the “purpose or effect of unreasonably interfering with an individual’s work performance.” Id.
A. Quid Pro Quo Harassment Analysis
In assessing quid pro quo claims, the Seventh Circuit has adopted a five-part test: whether (1) the employee is part of a protected group; (2) the sexual advances are unwelcome; (3) the harassment was sexually motivated; (4) the employee’s reaction to the supervisor’s advances affected a tangible aspect of her employment; and (5) respondeat superior has been established. Bryson v. Chicago State Univ., 96 F.3d 912 (7th Cir. 1996) (citations omitted).
Is the employee part of a protected group? The threshold here is low: in the absence of a sexual identification, no claim could be brought. If the harassment is based on the sex of the victim (whether male or female), the victim is part of a protected group. See also, 42 U.S.C. §2000e-2.
Were there unwelcome sexual advances? In Meritor Savings Bank, FSB v. Vinson, the Supreme Court held that the “correct inquiry is whether [the employee,] by [his or her] conduct indicated that the alleged sexual advances were unwelcome, not whether [his or her] actual participation in sexual intercourse was voluntary.” 477 U.S. at 68. This is an important distinction because it highlights the importance of focusing on the surrounding circumstances giving rise to the claimed harassment. This element is subjective in that the focus is on whether the plaintiff welcomed the conduct, “not necessarily the plaintiff’s understanding of whether sexual favors were being requested.” Nolen, 99 F. Supp. at 962 (citing Bryson, 96 F.3d at 916).
Were the acts sexually motivated? “[Q]uid pro quo sexual harassment can occur regardless of whether the plaintiff subjectively recognizes that he or she has been propositioned or whether an objective observer would have understood that the plaintiff was propositioned.” Id. The courts ask whether there is evidence that there was a request for a sexual relationship and that agreement to, or rejection of, such a relationship led to the promotion or termination of such employee. See Hull v. APCOA/Standard Parking Corp., 2000 WL 198881 (N.D. Ill. 2000) (slip copy). In Hull, the plaintiff’s supervisor had stated to her that she “needed a man” and that “you and I should go out.” Id. at 10. He also said to her that “if you and I can’t go out together, can’t do anything together, will you at least consider escorting me?” Id. On these facts, the court found that a jury could reasonably infer that the supervisor sought a sexual relationship with the plaintiff. Id.
Do the advances affect a tangible aspect of the employee’s employment? This element of the assessment is the “quo”; that is, it is what would be gained or lost as a result of the employee’s response to the superior’s advances. But what is a “tangible aspect” of an employee’s employment? The Supreme Court answered in Burlington Indus., Inc. v. Ellerth that a “tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significant responsibilities, or a decision causing a significant change in benefits.” 524 U.S. 742, 761 (1998). Courts of Appeals have addressed this element as well. In Flaherty v. Gas Research Institute, the court held that a “bruised ego” was insufficient to establish an adverse employment action. 31 F.3d 451, 457 (7th Cir. 1994). On the other hand, a material loss of benefits, termination of employment, less distinguished title, decreased wage or salary, or significantly diminished material responsibilities would be sufficient to meet the fourth element of the quid pro quo assessment. See Crady v. Liberty Nat’l Bank and Trust Co. of Ind., 993 F. 3d 132, 136 (7th Cir. 1993).
Can respondeat superior be established? Since the Supreme Court’s rulings in Ellerth and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), this element is simple. In cases where supervisors are the harassers, if an employee has established the first four elements, then employer liability is automatic. Ellerth and Faragher stand for the proposition that “simply having a harassment policy is no longer enough.” Nolen, 99 F. Supp. at 959. Employers now have an affirmative duty to prevent sexual harassment by supervisors.” Id. As such, “if the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable.” Vance v. Ball State Univ., 570 U.S.421, 424 (2013). The Supreme Court, in Vance, held that an employee is a “‘supervisor’ for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim ...” Id. But if the harasser is a victim’s coworker, “the employer is liable only if it was negligent in controlling working conditions.” Id. This is why it is so important that employers maintain a well-publicized, properly implemented, and enforced harassment policy.
B. Hostile Work Environment Analysis
Where quid pro quo sexual harassment can arise from a single act, hostile work environment claims require that the working environment itself be abusive. This type of harassment is more easily prevented through the development, observation, and enforcement of employment policies that ferret out abusive workers and provide an avenue for victims to report abusive practices.
Vulgarity isn’t enough. For a hostile work environment claim, it is insufficient that “occasional vulgar banter, tinged with sexual innuendo” occurs in the workplace. Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir. 1995). Instead, an employee claiming hostile work environment harassment under the Act must show that a coworker or supervisor harassed her because of her sex. Oncale v. Sundowner, 523 U.S. 75, 81 (1998). The harassment, once proven, must be “so severe or pervasive as to alter the condition of [the employee’s] employment and create an abusive work environment.” Faragher, 524 U.S. at 786.
Subjectivity and objectivity are required. To be actionable, the work environment created by the harassment must be both objectively and subjectively offensive. Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463 (2002). In making this determination, courts look to a number of factors in light of the social context in which the events occurred, including “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. (quoting Faragher, 524 U.S. at 787-88). See also, Oncale, 523 U.S. at 82.
III. What Can Employers Do to Protect Their Employees and Themselves?
The burden of preventing sexual harassment in the workplace is placed squarely on employers. Here are a few suggestions practitioners can make to client-employers to ensure their employees are protected from workplace harassment and to limit their exposure to claims of sexual harassment.
A. EEOC Guidance
In furtherance of its prevention-oriented stance, the EEOC provides some — albeit vague — guidance on what employers can do to avoid claims of sexual harassment.
• affirmatively raising the subject;
• expressing strong disapproval of workplace harassment;
• developing appropriate sanctions in response to incidents of harassment;
• informing employees of their right to raise and how to raise the issue of harassment under the Act; and
• developing methods to sensitize employees and supervisors.
26 C.F.R. 1604.11(f).
B. Put the Policy in Writing
In all harassment cases, the courts will ask what the employer did to prevent and address sexual harassment in the workplace. A written policy will be a good starting point for showing that the employer took reasonable steps toward preventing and/or remedying sexual harassment claims. It should be reviewed annually and updated to account for changing social and working conditions.
Define sexual harassment. The written harassment policy should contain a clear, all-encompassing definition of sexual harassment, but not be so restrictive as to make employees feel that their experiences may not qualify. It should incentivize reports of a hostile work environment and quid pro quo claims. It should articulate the policy that sexual harassment will not be tolerated.
Describe the reporting requirements. The sexual harassment policy should describe, in detail, the specific name, telephone number, and email address of the person to whom employees should report the sexual harassment. Typically, this will be someone within the HR department. Any change in the contact information provides the employer with another opportunity to circulate the sexual harassment policy with the updated contact information.
Describe the investigative process. To protect against wrongful termination claims, the policy should detail the investigative process; including a timeline for addressing the issues, whether there will be interim protective action against the alleged perpetrator, and which parties will be involved in the investigation process.
Describe the consequences of sexual harassment. The sexual harassment policy is useless unless it has teeth. Employees must understand the consequences of their harassing behavior — including termination. To prevent EEOC claims and claims by employees, employers should have zero-tolerance of sexual harassment. Of course, not every complaint rises to the level of sexual harassment, so the disciplinary language of the manual should be left open-ended.
C. Talk About the Policy (Early and Often)
The orientation process is the best time to stress to new employees the importance of reporting sexual harassment. It should be clearly and effectively communicated to all new employees both orally and by using the employee manual. This is particularly important where an employee may be illiterate or semiliterate. All staff meetings should remind attendees what constitutes sexual harassment and reiterate the written policy.
D. Publish It
The sexual harassment policy should be posted conspicuously in areas commonly traveled by employees. Breakrooms are common locations for posting but offer little privacy. Restrooms, however, are the most private locations in the workplace and afford an opportunity to review the policy without fear of repercussion by abusers (especially in cases of opposite-sex harassment). Wherever it is posted, it should be conspicuous, readily available, and its review should be encouraged.
E. Good or Bad, Paper the File
Employers should maintain a complete and accurate list of instances in which each employee was the subject of a complaint, submitted a complaint, and all instances of negative and positive work performance. Because it will contain a record of both positive and negative performance, it will reveal the employer’s objective approach to employee evaluation. It will lend credibility to the employer’s employment practices and to victims of workplace harassment by detailing every instance of perceived harassment, as well as the identity of the alleged perpetrators. The importance of this practice cannot be overstated. Without adequate records, there is no way of showing what transpired in the workplace. These records should be updated no less frequently than monthly and every time a complaint is received.
While most of our clients are neither Hollywood starlets nor movie moguls, the rules are the same. Employers are continually at risk for claims of sexual harassment, so there is no better time than the present to act. If employers wish to protect themselves from claims of sexual harassment in the workplace, they need to put their employees first by implementing policies and procedures that ensure sexual harassment is eliminated.
Mr. Riker is an associate attorney with the Bloomington law firm of Clendening Johnson & Bohrer, P.C., and is a member of the Employment Law Section of DTCI. The opinions expressed are those of the author.