Employers and Employees: Do You Understand the Law and Sexual Harassment?

December 1, 2017

The Today show announced this week that Matt Lauer has been fired after nearly 24 years on the show following an allegation made by a colleague of “inappropriate sexual behavior.”  I won’t bother linking to any of the news stories as you’ve probably already seen quite a few on this subject.  What made this story more shocking was that Lauer’s termination came less than 48 hours after the allegation was made.  This swift reaction demonstrates how attitudes in the public arena regarding workplace misconduct are beginning to shift.  But power can be exploited at all levels, which is why it’s imperative that every business owner, large or small, is aware of the laws and their responsibility to maintain a workplace that is free of sexual harassment.  An Associated Press article posted on Lancaster Online this morning discusses how Failing to address harassment allegations can cost employers.

This blog is the first in a series focusing on sexual harassment and misconduct in the workplace.  Follow up posts will look at what’s important from the employer’s view, the employee’s and that of the accused.  As we become more comfortable having open discussion about workplace conduct, employers and employees need to learn more about this problem.   A key starting point for this discussion is the understanding of what constitutes sexual harassment.

So what exactly is sexual harassment? Sexual harassment, as defined by the Equal Employment Opportunity Commission, includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct explicitly or implicitly affect’s a person’s employment, unreasonably interferes with work performance, or creates an intimidating, hostile, or offensive work environment.

What does this mean to you as business owner, manager or employee?  There are numerous sexual harassment cases which we will discuss in upcoming posts, however, every situation is unique and many factors must be considered.  Proper training and a safe reporting process is important for all workplaces, no matter the size.

Workplace harassment is prohibited under both state and federal laws.  However, it must be pointed out, that not all harassing behavior is illegal. For harassment to fall under the purview of the law, it must be against an individual classified under the law as a member of a protected class, including race, religion, age and gender to name a few.  And to classify as sexual harassment, the conduct must satisfy one of two requirements:  Quid pro quo harassment or hostile work environment.  Under the first, some condition of employment, such as a raise or promotion, is based upon an individual’s willingness to submit to the sexual advances or harassment.  A hostile work environment requires that the harassment lead to a workplace environment that is intimidating, hostile or offensive.  Additionally, a claim of sexual harassment requires that the conduct either be reoccurring and pervasive, or a single unwanted act that is severe enough in nature to constitute sexual harassment.

Sexual harassment in the workplace is not new.  But, as demonstrated by the recent headlines, open discussion and knowledge of similar stories prompts others to report their own experiences. And with all the information being discussed by the media, it may be hard to understand the laws surrounding sexual harassment.  While not all unwelcomed conduct in the workplace will reach the level of sexual harassment, it’s important not to ignore things that are occurring.  Every situation is different, which is why we suggest consulting an attorney if you have any concerns.  If there is a silver lining to the long list of misconduct allegations coming to light, it is that there is now a heightened public awareness of the problem.

Kathleen Krafft Miller is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. She received her law degree from Widener University and regularly advises individuals on legal matters related to Employment Law and Discrimination.