Ashley Geary, Esq.
Sexual Harassment in the Workplace
The current “#MeToo Movement” has brought sexual harassment to the forefront of current societal issues, and claims of sexual harassment continue to come to light in Hollywood, politics, and cities across America. As a result of this movement, sexual harassment in the workplace is being uncovered as well. Accordingly, it is critical that physician practices know: (1) what constitutes workplace sexual harassment; (2) what laws apply to sexual harassment in the workplace and what employers must do to comply with those laws; (3) what liability employers face for not appropriately addressing claims of sexual harassment; and (4) what employers can do to protect themselves financially in the event that they are held liable for workplace sexual harassment.
1. What constitutes workplace sexual harassment?
Workplace sexual harassment can take two (2) forms:
Quid Pro Quo sexual harassment occurs when employment decisions or expectations (e.g., hiring decisions, promotions, salary increases, shift or work assignments, performance expectations) are based on an employee’s submission to or rejection of unwelcome sexual conduct.
Hostile Environment sexual harassment exists when verbal or non-verbal behavior in the workplace: (1) focuses on the sexuality of another person or occurs because of the person’s gender, (2) is unwanted or unwelcome, and (3) is severe or pervasive enough to affect the person’s work environment.
2. What laws apply to sexual harassment in the workplace and what must employers do to comply with those laws?
The Equal Employment Opportunity Commission (“EEOC”) considers sexual harassment a form of sex-based discrimination prohibited under Title VII of the federal Civil Rights Act of 1964 (“Title VII”). Accordingly, any employer subject to Title VII (i.e., those having 15 or more employees), will be held responsible for preventing and responding to claims of sexual harassment. For employers with less than 15 employees, state and local anti-discrimination laws may impose restrictions and obligations similar to those imposed by Title VII. For example, Pennsylvania’s anti-discrimination law applies to employers with 4 or more employees and New Jersey’s anti-discrimination law applies to employers that have even 1 employee.
Although federal, state and local laws may slightly differ in the requirements imposed on employers, those laws generally require that employers have policies and procedures in place to prevent and respond to discrimination and harassment, including sexual harassment. The EEOC has published guidelines which employers, regardless of size, should use to draft such policies. The guidelines recommend that employers: (1) affirmatively raise the subject of sexual harassment to employees; (2) explicitly express their intolerance for such conduct; (3) develop appropriate disciplinary actions for harassers; (4) inform employees of their rights and the procedure for raising the issue with the appropriate individuals; and (5) train employees on workplace sensitivity and inappropriate behaviors.
When an employer becomes aware of potential sexual harassment, either through a complaint, anonymous report or otherwise, the employer must take the allegation seriously and promptly conduct a thorough investigation into the circumstances. The employer must take actions necessary to immediately end the harassment and restore any lost employment benefits or opportunities to the victim. The employer must also take actions to prevent any such harassment from recurring and discipline the harassing supervisor or employee consistent with the severity of the conduct.
What liability do employers face for not appropriately addressing claims of sexual harassment?
An employer’s liability for sexual harassment will depend on the position of the harasser and the employer’s knowledge of the harassment. Generally, an employer is always liable for harassment by an individual in a supervisory role when such harassment results in a negative employment action (e.g., termination, failure to promote/hire, and loss of wages). If the supervisor’s harassment results in a hostile work environment, the employer may be able to avoid liability if it can prove that: (1) it exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer (e.g., the employee failed to report the behavior and the employer had no other way of uncovering such behavior).
With regard to non-supervisory employees and non-employees, the employer’s liability is less definitive. That said, the employer may be held liable for harassment by these individuals if: (1) it had control over such individuals (e.g., independent contractors or customers on the premises); (2) it knew or should have known about the harassment; and (3) it failed to take prompt and appropriate corrective action.
In the event than an employer is found liable for workplace sexual harassment, the employer’s sanctions may include, among others: (1) mandatory remedies to the aggrieved employee (e.g., job placement, promotion); (2) payment of compensatory damages for emotional harm suffered and out-of-pocket expenses incurred by the victim (e.g., back wages, job search costs); and (3) payment of punitive damages intended to punish the employer, especially when its actions were reckless and/or malicious.
What can employers do to protect themselves financially in the event that they are held liable for workplace sexual harassment?
Given the potential for liability under federal, state and/or local law, practices may consider purchasing an employer practices liability insurance (“EPLI”) policy. This policy covers employers against claims made by employees alleging discrimination (e.g., sex-based discrimination), wrongful termination, harassment and other employment-related issues (e.g., failure to promote). An EPLI policy may either be purchased as a rider on the practice’s current general liability policy or as a stand-alone policy. The cost will depend on a variety of factors including the size of the practice, history of employee claims, and whether the practice has implemented and enforces preventive rules and regulations.
If your practice needs assistance in developing and implementing sexual harassment policies or responding to sexual harassment claims that have arisen, please contact our firm.