Sexual harassment in the work place is one of the issues that Title VII was meant to resolve. One of the more common issues that arise with a sexual harassment claim is when an employee is subject to sexual harassment that creates a “hostile atmosphere.” For a court to determine if a hostile atmosphere exists, and provide a remedy to the victim, a number of issues have to be determined, and these are discussed below.
The Nature of the Behavior
The first question to ask yourself to determine whether you have a valid sexual harassment claim regards the particular type of behavior. Is the conduct merely simple teasing or is it behavior that creates a hostile work environment? Certain types of behavior are not considered sexual harassment that creates or has created a hostile atmosphere. Such behaviors as simple teasing, offhanded remarks or comments, and isolated incidents do not usually amount to offensive behavior. Title VII was intended to recognize that most, if not all persons, engage in such behavior and that is not intended to harass or offend anyone.
However, a serious behavior like inappropriate touching, or mean-spirited, repeated teasing of a sexual nature directed at one individual or a specific class of persons can rise to a Title VII violation. This type of behavior is the kind that a reasonable person would find hostile and offensive. If this behavior happens, then you can ask yourself the next question: who is the individual causing the harassing and offensive behavior, a fellow employee at the same work position as the victim or the victim’s supervisor or management?
Who is the Individual Acting Inappropriately?
An employee can be sexually harassed by his supervisor or another employee. If its another employee, the employer can be liable under Title VII if the following elements are present:
the employee suffered intentional discrimination because of their sex, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected the plaintiff, (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position, and (5) the existence of respondeat superior liability. Weston v. Pennsylvania, 251 F.3d 420, 426 (3rd Cir. 2001) citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990).
An employer can be liable for a Title VII violation if one employee is harassing another employee/victim, and the employer knows or has reason to know of the offensive behavior. If a victim/employee is harassed by a co-employee, then the victim/employee should see if the employer has a policy and procedure for reporting the offensive employee’s behavior and do so immediately.
What if the employee that is harassing the victim is also the victim’s supervisor? If you as the employee can show that your supervisor subjected you to an adverse tangible employment action for the purpose of harassing you, liability should exist under a doctrine called “respondeat superior.” It’s when there’s no adverse tangible employment action against the employee that makes things a little sticky.
Once again, the victim/employee should follow the employer’s policy and procedure and report the offensive behavior provided that the victim is not reporting the matter to the supervisor causing the offensive behavior. The victim should report the matter to another supervisor. However, if there is no other supervisor that the victim/employee can go to and file a complaint, then the victim/employee should consider contacting me at (412) 992-0948 or via email at [email protected]. Failure to report the offensive behavior can limit the employer’s liability and will be discussed later. An example of when the victim/employee cannot report the offensive behavior of the supervisor is when the supervisor causing the offensive behavior is the owner of the company or occupies the highest position within the company.
Employer Liability for Failing to Act
A third aspect of your potential claim to look at besides the nature of the behavior and who is the individual behaving in the inappropriate manner concerns whether the company authorized the behavior. Is the employer (the company) liable for the supervising employee’s offensive and harassing behavior towards the victim/employee if the company never authorized that behavior?
Courts will hold the employer/company liable for harassing behavior when the supervisor abused his or her authority. Furthermore, employers, and senior level managers, are in a better position to guard employees from offensive and harassing behavior caused by supervisors towards their lower-level employees. An employer can protect the lower-level employees, and its own interests, by having a clear policy regarding employee behavior and making sure that there is a procedure for lower-level employees to report harassment to senior managers. If any harassment is reported by an employee, then the employer can be liable if it did not take immediate and appropriate action to protect the employee.
What will your Employer say in its Defense?
You may wonder what defenses an employer has to sexual harassment and/or hostile work environment case. If a supervisor is doing the harassing and there is adverse tangible employment action, then the employer should be liable. If a supervisor is doing the harassing, but there is no adverse tangible employment action taken against the victim-employee, then the employer can utilize the defenses in Ellerth and Faragher, which require the employer to show by a preponderance of the evidence that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and that the complaining employee unreasonably failed to take advantage of such preventive or corrective opportunities.
If it’s another employee doing the harassing conduct, the victim-employee will want to show the employer’s negligence, such as showing that management knew or should have known about the harassment, but “failed to take prompt and adequate remedial action.” The employer will attempt to show the opposite.
Also, the employer might want to show that the employee/victim failed to mitigate or avoid the harm caused by the offensive and harassing behavior by another employee. A clear example is if the employee/victim failed to follow the employer’s policy and procedure and report the offending and harassing employee immediately.