PrintOur company is pretty informal and people joke around a lot. I know it's all just fun and games, but sometimes the jokes can get very off-color. Should I be worried about sexual harassment?
Absolutely. With the proliferation of sexual harassment lawsuits in the last few years, you cannot be too careful in dealing with this highly volatile area of employment law.
Sexual harassment is a form of sex discrimination, prohibited by Title VII of the Civil Rights Act of 1964. Individual states also have sexual harassment laws, which are generally modeled on the federal statute. Title VII only applies to employers with 15 or more employees, but state laws often cover smaller employers. In most cases, federal and state sexual harassment law is uniform because state courts rely heavily on federal court decisions for the interpretation of their own sexual harassment laws.
There are two basic types of sexual harassment:
Quid pro quo sexual harassment which occurs when employment decisions are based on the employee-victim's willingness to engage in or submit to sexual conduct.
Hostile work environment sexual harassment which occurs when gender-based or sexually oriented conduct creates an offensive and hostile working environment. Sexual jokes or teasing fall into this category.
Obscene jokes, sexual innuendos and lewd remarks have been found to create a hostile work environment when they are sufficiently pervasive to "alter the conditions" of the victim's employment. Yet, there's no clear rule about what rises to the level of sexual harassment regarding jokes. Courts will look at all the factual circumstances and determine whether a "reasonable person" would have found the conduct at issue to be hostile or offensive.
There are several things you can broadly do to protect yourself against potential lawsuits:
- Have a strong anti-sexual harassment policy and notify employees that sexual harassment will not be tolerated. This is legally required in some states.
- Respond promptly to employee complaints of sexual harassment and take appropriate action if warranted by the circumstances.
- When you hear sexual innuendo or sexual joking in the workplace, cut it off. While it may be intended in fun, it can get you into trouble if it isn't stopped.
The information here does not constitute legal advice and should not be relied upon as legal advice. If you have a legal problem, consult an attorney in your area concerning your particular situation and facts. Nothing presented on this site establishes or should be construed as establishing an attorney-client relationship between you and Gregory A. Bonfiglio or the law firm of Morrison and Foerster LLP.
