In Legal Terms - Spring Issue 2002

Sexual Harassment in the County Workplace

At a continuing legal education seminar I attended last week, Robbie Alexander Hyde from Webb & Eley made an excellent presentation on discrimination in the workplace, with emphasis on sexual harassment. Robbie put together a very informative handout to accompany her remarks, and has graciously authorized me to plagiarize her hard work on that project. This is not an area where I have any expertise, nor one that can really be covered in a one page article. But it is certainly an issue about which county officials, as employers, must be concerned and informed, and I thought it might be helpful to at least bring some of the issues to your attention. I wish to extend a very sincere thank you to Robbie for her oral and written presentation at the seminar - and for allowing me to "borrow" some of her work for this article.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based upon race, national origin, religion, and gender. The Act's prohibition is not limited to economic or "tangible" discrimination. It includes behavior, such as sexual harassment, that is so severe or pervasive as to alter the conditions of the employee's employment and create an abusive working environment1. In sexual harassment cases, where the employer has not taken adequate steps to prevent, protect against, or eliminate the discrimination, the employer can be held liable - even for the actions of a supervisor or co-worker of the harassed employee. Therefore, the approach that the county commission takes in dealing with this issue is extremely important. For this and many other reasons, counties should involve their county attorney from the moment they become aware of any real or potential threat that allegations of sexual harassment or any other form of discrimination may be brought by an employee working in the county. They may also want to sit down with their attorney now to review county policy and practice, and look carefully at whether changes should be made.

It was clearly established many years ago that sexual harassment in the workplace can constitute gender-based discrimination for the purposes of the federal act. Sexual harassment is defined by federal regulation as "unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature".2 It is probably more formidable - and more serious for the employer - when the alleged harasser is a supervisor or other person with authority or control. However, sexual harassment can involve co-workers and the employer can sometimes be held liable here as well.

There are generally two forms of sexual harassment. "Quid pro quo harassment" is harassment that involves the conditioning of concrete employment benefits on sexual favors.3 This would involve things like granting a promotion for certain sexual favors or demoting an employee for refusing same. On the other hand, "hostile work environment harassment" is conduct which does not result in a tangible adverse employment action, but has the effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive workplace.

There are both objective and subjective components to hostile work environment harassment, which almost always must be decided on a case-by-case basis. As the U.S. Supreme Court has held, a sexually objectionable environment is one that a reasonable person would find hostile or abusive, and one that the victim did, in fact, perceive to be hostile or abusive.4 Courts must look at all of the circumstances in a particular case, such as the frequency of the conduct, its severity, and whether it was physically threatening or humiliating - just to name a few.

When the sexual harassment comes from a supervisor, an employer will automatically be held liable for sexual harassment discrimination if the harasser/ supervisor took tangible employment action against the plaintiff, such as firing or demoting the employee. However, it is much more difficult to determine liability where no adverse action is taken. In this instance, the court must determine whether the employer took reasonable care to prevent and promptly correct the harassing behavior and whether the employee unreasonably failed to take advantage of preventive or corrective opportunities.

For example, if an employer has a sexual harassment policy which provides a mechanism for employees to wage a complaint to someone other than the harassing supervisor, but the employee does not avail himself or herself of that policy, the employer may avoid liability. However, if the employer has a policy but does not disseminate it or follow it or if there is no supervision of the supervisor, the employer may be held liable. It is advisable that all employers have a policy prohibiting sexual harassment with a clear and safe procedure for employee complaints. However, for this to be effective and help prevent liability, the policy must be distributed to all employees and strictly followed by all levels of management. It also may be beneficial to have periodic training sessions on the policy, and what type of behavior may be viewed as sexual harassment under the law.

As mentioned at the outset, it is important to keep in mind that an employer can also be held liable for alleged harassment from a co-worker. In this instance, however, the employer can only be held liable if the employer knew or should have known of the harassment and failed to take reasonable action. Therefore, if an employee follows the procedures for complaining about harassment, or notifies a supervisor or superior of inappropriate behavior, the employer must take appropriate action to stop the behavior causing the complaint, keeping in mind that, at least to some extent, it is the employee's perception of sexually inappropriate behavior or harassment that gives rise to the cause for discrimination. The employer should not rely solely on his or her perception of whether the alleged behavior was inappropriate in addressing the problem.

An employer can also be held liable for retaliation against an employee who has challenged in some way a practice that is discrimination under the law. The employee must show that he or she engaged in an activity protected by Title VII (like complaining to superiors or filing a complaint with EEOC), suffered an adverse employment action, and that there was some causal relationship between the two. The employee does not have to prove that the sexual harassment actually occurred - only that he or she had a good faith, reasonable belief that it had occurred.

The issue of sexual harassment in the workplace is very serious and complicated. Although it has been recognized as gender-based discrimination for many years, it continues to be an evolving body of law. Each case must be decided on its own facts and circumstances, making general rules almost impossible to establish and keep. However, there are many steps that counties can and should take to try to prevent this or any other discrimination in the workplace. This article certainly should not be viewed as a comprehensive discussion of the issue of sexual harassment, but will hopefully prompt some discussion among county officials and county attorneys. It is a sensitive subject, but an important one - not only because of the potential liability to the county, but because of the professional respect and concern that county officials, as employers, have for the dedicated employees performing the county's work, and the desire to provide those employees with a comfortable and safe work environment.

1 See, Faragher v. City of Boca Raton, 524 U.S. 775; 118 S. Ct. 2275; 141 L. Ed. 2d 662 (1998).
2 29 C.F.R. § 1604.11
3 See, Meritor Savings Bank v. Vinson, 477 U.S. 57; 106 S. Ct. 2399; 91 L. Ed. 2d 49 (1986).
4 Faragher v. City of Boca Raton, supra.