BUSINESS LAW: Sexual harassment in the workplace
As I indicated in earlier articles on various aspects of employment law, the workplace has indeed changed its face. The introduction of women into the workplace, in addition to rapidly-expanding technology, has created the need for laws to address real inequities in the workplace.
The law of sexual harassment is, therefore, changing constantly and is not consistent across state lines. For the first time in history, both the U.S. Supreme Court and the Michigan Supreme Court have agreed to hear cases concerning sexual harassment.
The doctrine of sexual harassment stems from anti-discrimination laws in both federal and state statues. The federal law is known as Title VII of the Civil Rights Act of 1964. The Michigan law is referred to as the Michigan Elliott-Larsen Civil Rights Act. I will talk about both laws, but will begin by focusing on the federal law.
Title VII (and its cohort in the educational field, Title IX) states that “it’s unlawful for an employer to discriminate against an individual with respect to…compensation, term, condition or privileges of employment because of an individual’s sex.” Sexual harassment is one type of sexual discrimination that the federal law sought to protect against in the workplace.
The federal law defines sexual harassment in two ways:
1. Quid Pro Quo: In Latin this means “what for what” or, as it is more commonly used today, “this for that.” It is defined as an “unwelcomed sexual advance or a request for sexual favors or other variable and/or conduct of a sexual nature to which acquiescence is made a condition of employment.” This type of sexual harassment requires that an authority figure impose conduct of a sexual nature that is unwelcome by a subordinate. This must be made a term or condition of continued employment.
The courts have indicated they will look at the total picture; the actions of both parties, and the employer and supervisor’s polices. The courts have made it clear that the employee does not actually have to be fired; a mere threat to be fired or demoted or have any condition of her/his employment affected is sufficient to constitute such a claim.
2. Hostile Work Environment: This is where one party creates an unpleasant environment in the workplace that interferes with an employee’s work performance. Unlike quid pro quo (which can only involve supervisors), this form of sexual harassment can and frequently does involve co-workers or even third parties (i.e. visitors to the plant or workplace).
It has the same elements as quid pro quo, but there need not be any specific requests for sexual favors. Rather, the sexual conduct must be “sufficiently pervasive so as to alter the conditions of employment, which may severely affect the psychological well-being of the employees.”
What kinds of things could be viewed to create such a hostile work environment? The obvious ones are: dirty jokes, sexual objects on desks, sexual or explicit calendars or posters, name calling, whistles, pornography, or certain language being used by employees or co-workers.
Human behavior being what it is, there is no clear-cut line as to what may constitute a hostile work environment. The courts will take a comprehensive view of the total work environment, including the frequency and severity of the conduct, the number of participants, and whether there were physical attributes to it.
Most importantly for the employer, the courts will view what, if anything, an employer has done to either protect and/or to prevent this sort of conduct. The court will look to whether an employer had anti-harassment policies in place, specific and practical procedures for complaints, investigation, review and discipline, and whether action was taken when such conduct was found.
State Law and Michigan
Like the federal law, Michigan law has both Quid Pro Quo and Hostile Work Environment causes of action. A new cause of action, however, is being developed regarding what is commonly called “favoritism.”
Favoritism is designed to protect employees who are not engaged or involved in a sexual relationship with a co-worker or management employer. The theory is that if co-workers are involved in a sexual relationship (even if it is consensual) the employee (or subordinate) might enjoy certain added job benefits (i.e. raises, permanency, and hours) that other co-workers who don’t have the sexual relationship would not enjoy. Though these are newer claims being developed, employers need to be aware of the potential for such and develop policies addressing such actions.
An employer’s first line of defense is prompt and firm action, and the establishment of a no-nonsense policy that SEXUAL HARASSMENT IS ILLEGAL. The policies developed by the employer should not only follow state and federal laws, but should be in writing and include separate language of what is required of employees if they believe a sexual harassment action has occurred. Then the employer must follow up with with a thorough and real investigation.
Employers should also have in place an anti-retaliation policy to enable an employee to feel comfortable in not only making a complaint, but knowing that such a complaint will not, in and of itself, cause a negative impact with that employee’s job status.
The bottom line is that both employees and employers should be dealt with respect and should be expected to be professional in their jobs. Anything less can lead to years and years of litigation and tremendous headaches for all parties concerned.
Madeleine Thomas is an attorney with the law office of Thomas & Gilbert, PC in Traverse City.