Every company has a sex harassment policy prominently displayed, and chances are employees are required to acknowledge their receipt and understanding of the policy. But it didn't always use to be that way. In 1998, the Supreme Court gave employers a gift: they could escape liability for the sex harassment of their employees if the company exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the company.
Immediately anti-harassment policies started popping up quicker than dandelions in April. The purpose of these policies is to protect the company against lawsuits, not to help the employee. In many companies, the policy is little more than lip service. The "corrective action" usually turns out to be moving the harassed employee to a different department or location, and leaving the harasser in place.
Let’s start with the basics. Harassment is a form of discrimination. There are no laws that specifically address harassment, they are covered by the general laws that prohibit discrimination in employment. One definition of unlawful employment discrimination is taking some adverse employment action against an employee because of his or her X, where X is a forbidden factor. (The definition of discrimination under the New York City Human Rights Law is broader, but in this context, the principle is the same.) One forbidden factor is sex. Others are race, ethnicity, disability, skin color, age and so on.
A hostile work environment arises when an employee is subjected to conduct, on account of a forbidden factor, that creates an environment that interferes with the employee’s performance of his or her work. (The terms “hostile work environment” and harassment are for all intents and purposes synonymous in this context.) An unlawful hostile work environment can be created because of a person’s sex, race, skin color, disability, age or any other forbidden factor.
One unusual component of a sex harassment case is that it contains a subjective element. By and large, the law is objective, meaning that the legality of conduct is determined according to objective standards, i.e., the facts as they would be viewed by a dispassionate, uninvolved and reasonable person. This is the famous “reasonable person” standard. A good example of this is in the context of false arrest cases. Whether probable cause exists to arrest an individual is determined according to the facts available to the arresting officer, and it ignores what the officer actually believed.
Sex harassment cases have both objective and subjective components. The conduct that is alleged to create the hostile work environment must be (a) objectively offensive (i.e., conduct that a reasonable person would find offensive) and (b) subjectively offensive, i.e., it must in fact have been offensive to the person complaining. (Again, the standard under the New York City Human is different.)
It doesn’t have to be about sex. They can be about race, disability, age or any other forbidden factor. Even in sex harassment cases, the harassing conduct does not have to be sexual. Think of the schoolboy dipping the girl’s pigtail in the inkwell.
This is sex harassment, but not sexual.
It isn’t just about men harassing women. Although far less common, there are cases of women harassing men, men harassing other men, and women harassing women.
Harassment itself is not illegal. Calling employees stupid, worthless, etc., screaming and shouting at employees, and generally treating employees like garbage is not against the law, as long as the supervisor does not discriminate in his or her behavior.
When can you sue for a hostile work environment? The requirements to sue for some kind of harassment are generally:
- The harassment is based on some forbidden characteristic, e.g., sex, race, disability, age, etc.
- The harassing conduct was objectively offensive,
- You were actually offended by it, and
- The conduct was severe or pervasive enough to alter the conditions of employment.
If the harassment was by a co-worker, the employer must be on notice of the harassment and have failed to do something about it. If the harassment was by a supervisor, and no tangible employment action taken by the supervisor, the employer can escape liability by showing that it had an effective policy against harassment and that you failed to avail yourself of that policy.
These are the standards under the Federal Law (Title VII of the Civil Rights Act of 1964) or the New York State Human Rights Law (Executive Law §295). If you are employed in the City of New York, the New York City Human Rights Law has a different standard.
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The same survey reported that 79 percent did not report the harassment.
This so-called defense gives the experienced employment discrimination lawyer no trouble.