Sexual Harassment & Employment

The “environmental” type of sexual harassment occurs when the unwelcome conduct unreasonably interferes with an individual’s job performance or creates an intimidating, hostile or offensive working environment, even if it does not lead to any tangible or economic job consequences. Every employee has the right to work in an environment free from discriminatory intimidation, ridicule and insult. The harassment need not be between a manager and a subordinate employee. It can and often occurs between co-workers.

Every employer should have a policy against sexual harassment that is communicated to each employee in writing. This policy should provide guidelines on what an employee can do if he or she believes he or she has been sexually harassed. Even if an employer has a policy against sexual harassment, the employer can still be held liable for the actions of any of its managers or agents if it knew or should have known of the occurrence, and failed to take any steps to prevent or stop the harassing conduct.

An employer cannot only be held liable of the actions of its employees, but it may also be held accountable for its customers and vendors, if it knew or should have known of the occurrence or the harassing conduct and failed to take appropriate action.

A man or woman may be the victim of sexual harassment and either may be the harasser and need not be of the opposite sex. Voluntary submission to the sexual conduct will not necessarily defeat a claim of sexual harassment. The issue is rather whether the parties acted by consent or whether pressure was applied to the employee to “voluntarily submit” to the allegedly harassing conduct. Neither will occasional use of sexually explicit language nor provocative dress by the harassed necessarily negate his or her claim.

To defeat a claim of sexual harassment, the employer would have to show that an employee welcomed the sexual conduct by demonstrating such factors as the employee solicited or incited the conduct, or that the employee welcomed the conduct by acting in a sexually aggressive manner.

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