Richard Wayne, Esq., Prince Lobel Tye LLC
Harvey Weinstein, #MeToo, and You Sexual harassment in the workplace has long been illegal under state and federal laws. Employers are responsible for preventing sexual harassment and eliminating its vestiges from the workplace. Most employers have implemented anti-harassment policies and training. Although, there have been no recent significant changes in the law of sexual harassment, recent events, the Womens Marches, the Harvey Weinstein scandal, and the #MeToo movement, demand employers take this moment to reexamine their sexual harassment policies, practices, and training. If unsuccessful, they may be subject to liability. Policies and practices should encourage reporting, prompt investigation, remediation, and prohibit retaliation.
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he Federal Equal Opportunity Commission (EEOC) defines unlawful sexual harassment in its regulation. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.” Federal law and state law recognize two (2) distinct types of conduct which may be labeled sexual harassment: 1. Quid pro quo harassment where submission to or rejection of advances, requests or conduct is used as a basis for employment decisions; and 2. Hostile environment harassment where the conduct of an individual(s) has the purpose or effect of unreasonably interfering with an individual’s job performance by creating an intimidating, hostile, humiliating, or offensive work environment.
FEBRUARY, 2018
In lay terms, sexual harassment refers to unwelcomed speech or conduct of a sexual nature which is offensive and fails to respect the rights of others. Absent egregious conduct, an isolated remark or act, likely does not violate the law or create a hostile work environment. Sexual harassment may involve relationships of unequal power, but may also involve relationships among “equals”. Sexual harassment may also involve employee speech or conduct directed at non-employees or non-employee speech or conduct directed at an employee. It is not limited to male speech or conduct directed towards a female or by a supervisory employee toward a non-supervisory employee. Sexual harassment may also be found in non-traditional situations: A man may be a victim; a women may be the harasser; The harasser may be the same sex as the victim and/or have the same sexual preference; supervisors may be the victim of abusive conduct of a subordinate. Employers are responsible for preventing sexual harassment in the workplace. The term “workplace” can be broadly defined to include, but not limited to, off-hour activities away from the workplace or social networking. The employer can be held liable for the sexual harassment committed by its supervisors, continued on page 25
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