Many say the first story run in The New York Times about movie mogul Harvey Weinstein’s alleged trail of sexual misconduct triggered a national discussion of harassment in the workplace.
Others contend it’s the #MeToo movement that virally accelerated things when actor Alyssa Milano encouraged women to tweet their experiences. Indeed, #MeToo was initially tweeted more than a half million times, and on Facebook it was used in a mind-boggling 12 million posts during the first day.
But one doesn’t have to be a Hollywood name, TV news anchor, politician or even President to be accused of some inappropriate action. What does it all mean for those in the working world? Do employers including marine dealers now face higher possibilities of having to deal with harassment that happens in their business? It has become a very real possibility.
For definition, the Equal Opportunity Employment Commission defines workplace sexual harassment as unwelcome sexual advances or conduct of a sexual nature which unreasonably interferes with the performance of a person’s job or creates an intimidating, hostile, or offensive work environment. Sexual harassment can range from persistent offensive sexual jokes to inappropriate touching to posting offensive material on a bulletin board. Both state and federal laws protect employees from sexual harassment at work.
Sexual harassment is specifically a form of sex discrimination under Title VII of the 1964 Civil Rights Act. Only employers with 15 or more employees are subject to Title VII. But for companies with fewer than 15 employees, most states have enacted laws and these may be even more strict laws that include acts like bullying, cyberbullying, sexting, and discrimination of younger workers or those with different ethnicities, among other indicators of harassment.
There are two recognized Title VII types of sexual harassment — 1) quid pro quo and 2) a hostile work environment. In a quid pro quo, usually a superior will demand that a subordinate tolerate sexual harassment as a condition of getting or keeping a job or benefit, promotion or raise. A single instance of harassment is sufficient to sustain a quid pro quo claim.
A hostile work environment is also grounds for legal action when the conduct is unwelcome, is based on sex, and is severe or pervasive enough to create an abusive or offensive working environment. There are a wide variety of elements courts analyze in determining whether a hostile environment harassment claim is valid, ranging from frequency of the conduct to whether the alleged harasser was a co-worker or supervisor.
How to Deal With It
First, this blog is not legal advice of any kind. It’s intended merely to raise your awareness of this timely issue. Accordingly, the first suggestion is obviously to discuss this issue with your attorney or one recommended to you as knowledgeable about your state and/or city laws. If either quid pro quo or hostile work environment harassment can be proven, employers can be liable for compensatory (monetary loss, pain and suffering) and punitive damages.
Second, prevention is the best tool to eliminate sexual harassment in the workplace. Experts say it’s important to clearly communicate to every employee the policy of the dealership abhorring sexual harassment in any form. It should be reiterated often, too. The policy should include assurance that any reported incident would be considered most serious and investigated, and any such complaint would be treated with confidence and respect. Further, no one will be ill-treated for speaking up. Consulting with an attorney when writing a policy would be wise.
An additional approach is to ask all employees to help make sure it is a happy workplace. An employee could shut down a situation before it ever blows up. Even Esquire magazine has urged its male readers to act when they see something inappropriate by interrupting and saying something like: “That’s gross.”
Today this can seem like scary stuff for employers, and it is. But beside the potential liability a dealership could face, we should all believe it will never be right for someone, anyone, to feel uncomfortable, belittled, compromised or afraid, especially at a place where they come each day to earn a living. So, taking time to address it up front is the better way.