Since Anita Hill brought the issue of sexual harassment to our national attention during her testimony regarding allegations against Clarence Thomas in 1991, many a powerful person has been accused of using position and power to harass others in the workplace. Decades after Hill’s testimony and Bill Clinton’s re-defining of the word “is,” sexual harassment allegations are surging.
Everyday, new allegations are surfacing: Roger Ailes and Bill O’Reilly have been forced out at Fox News, Harvey Weinstein has been fired from his media dynasty Weinstein & Co., Louis C.K. lost a lucrative deal with HBO, George H.W. Bush has been accused of playing “David Cop-a-feel,” Al Franken thinks it funny to grope sleeping colleagues, and the allegations against President Trump inspired millions of women to take to the streets donning pink “kitty-cat” hats in January. The sexual harassment epidemic is one of the truly bipartisan issues left in the United States.
Washington’s Law Against Discrimination (RCW Chapter 49.60) prohibits sexual harassment as a form of sex discrimination. The federal Civil Rights Act of 1964, Title VII similarly prohibits sexual harassment as form of sex discrimination. But, what constitutes sexual harassment in the workplace?
Generally, workplace sexual harassment is defined as any kind of unwelcome conduct — verbal, physical, or visual — relating to a person’s sex that interferes with a person’s work performance or creates a hostile work environment. Sexual harassment includes both “quid pro quo” harassment, as well as unwelcome conduct that creates a hostile or offensive working environment.
Sexual harassment may include unwanted sexual advances, requests for sexual favors, unwanted physical contact, or offensive verbal comments. Though the law does not prohibit simple teasing or off-hand, isolated comments, if the “joking” is so frequent or severe that it creates a hostile work environmental, then the conduct may be illegal.
In a recent case out of the Ninth Circuit, Zetwick v. County of Yolo, a jury determined that a supervisor sexually harassed a subordinate by initiating 100 unwanted hugs over a 12-year period. The court found that the unwanted contact was severe and pervasive enough to create a hostile work environment for the employee.
Under the law, sexual harassers can be men or women, supervisors, co-workers, or even clients or customers. Employers are liable for sexual harassment when the harasser is an upper-level manager or, if the harasser is an employee, the employer knew or should have known of the harassment, and failed to take prompt and effective remedial action to correct the harassment. Additionally, managers and supervisors may have personal liability for engaging in inappropriate workplace harassment.
Given the current heightened attention to sexual harassment, this is a good reminder to employers to review sexual harassment policies and evaluate whether additional training for employees and managers is appropriate.
Clear policies that define sexual harassment and provide a procedure for investigating and resolving sexual harassment complaints should be communicated to employees on a regular basis and included in any employment manuals provided to employees. Providing regular training for employees and managers on sexual harassment and sexual harassment policies can help prevent sexual harassment from occurring in the workplace.
After receiving a complaint of sexual harassment, employers should promptly and thoroughly investigate the complaint and take appropriate remedial action to correct the behavior. And, as always, employers should take care to ensure that employees who complain about sexual harassment are not retaliated against by supervisors or managers for making the complaint.
To hear more about sexual harassment in the workplace and preventative strategies to avoid complaints, join us at Apple Valley Human Resources Association’s annual Employment Law Summit on December 7. We will be discussing new developments in Employment Law over the last year and will be joined by several experts to discuss exciting topics, including sexual harassment. For tickets, go to https://avhra.shrm.org/events/2017/12/employment-law-summit.
Erin McCool is a Member in the Wenatchee office of Ogden Murphy Wallace, PLLC, practicing in the areas of litigation, employment & labor law, and land use & water. She provides advice and consultation to local businesses, employers, and municipalities regarding state and federal employment laws. Gil Sparks is Of Counsel with the law firm of Ogden Murphy Wallace and has been practicing management side employment and labor law for over 29 years. Erin or Gil can be reached at firstname.lastname@example.org, email@example.com or 662-1954.