In recent months, the topic of sexual harassment has come to the forefront of the news, primarily due to the revelations of misconduct by several powerful figures in the entertainment industry and politics. While the increased attention to this issue is beneficial, the media often fails to accurately and adequately describe the law, or the legal procedures, relating to sexual harassment in the workplace.
In the “court of public opinion,” there is ostensibly no time limit within which an allegation must be made, the definition of sexual harassment can be very broad, and consequences can be visited upon the accused without formal legal process. The legal system, which governs these issues outside the world of celebrities, is far more rigid. For this reason, it is important that both employees and employers be made aware of some key aspects of sexual harassment law.
First and foremost, not all offensive conduct of a sexual nature is deemed to be actionable sexual harassment. In determining whether that line has been crossed, the law asks three questions: The first is whether the employee considered the conduct offensive and unwelcome (the “subjective” test). The second is whether a reasonable employee would also find the conduct offensive and unwelcome (the “objective test”). The third is whether the conduct was severe or pervasive (as opposed to minor and consisting of isolated incidents).
If, in answering these questions, the conduct is found to qualify as sexual harassment, the employer is not automatically liable. Rather, in most cases, if the employer maintains a policy prohibiting harassment in the workplace, the employee must first attempt to seek a remedy internally by reporting the conduct to the employer. If the employer takes prompt action and corrects the problem, it is typically insulated from liability. If the employer fails to do so (allowing the harassment to continue), or if it retaliates against the employee who complained, significant liability can result.
The legal system, unlike the “court of public opinion,” has strict time limits. To preserve a claim of sexual harassment (not involving a tort such as assault and battery), an employee must file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) within three hundred days, or with the state Florida Commission on Human Relations (FCHR) within three hundred sixty five days, of the unlawful conduct.
From a practical standpoint, the best advice that can be given to both employees and employers is to get ahead of the issue. Employees should utilize the available reporting mechanisms provided by their employer “early and often.” While this can be an extremely daunting task, in our experience, this is the surest way for an employee to protect and, ultimately, vindicate their rights. We routinely assist employees through this difficult process.
Similarly, employers should adopt an “ounce of prevention is worth a pound of cure” approach. By creating and disseminating a clear and comprehensive anti-harassment policy, and by addressing complaints with a prompt and thorough investigation and, where necessary, disciplinary action, an employer can reduce the likelihood that a rogue manager will saddle the company with significant liability. Our attorneys provide guidance to employers in this crucial aspect of employee relations as well.
Workplace harassment, unfortunately, remains a serious problem. Contrary to the media’s implication, however, the legal principles that address this issue have been in place for decades. Simply stated, it’s not new to us. We welcome the opportunity to assist you in navigating this system.