Here we go again. Now, it is Matt Lauer. He follows on the heels of, among others, Harvey Weinstein, U.S. Sen. Al Franken, Kevin Spacey, Louis C.K. and Charlie Rose. It is, therefore, a good time to review what is, and isn’t, sexual harassment. (Actionable harassment, however, can also be based upon other legally protected categories, such as race, age, religion and disability, to name just a few.)
There are two types of sexual harassment, quid pro quo harassment and hostile work environment harassment.
Quid pro quo harassment is when someone with supervisory authority over an employee links some sexual favor to a term or condition of employment. For example, it is quid pro quo harassment for a supervisor to demand a subordinate go on a date, or have sex, with the supervisor in order to get a raise or a promotion.
Hostile work environment harassment is somewhat harder to define. It occurs when statements or conduct of a sexual nature have the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment. The conduct either must be sufficiently severe or pervasive to create a hostile environment. One or even a few inappropriate comments over an extended period of time usually is not enough to create a hostile work environment. Whether the conduct was severe or pervasive enough to create a hostile work environment is based upon the totality of the circumstances.
We should also be clear on what is not illegal harassment. Every hostile environment is not actionable. Only those that are directed at someone because they are in a legally protected category (gender, race, age, etc.) are. Stated differently, a terrible boss who is mean to both women and men equally does not create a legally cognizable sexual harassment claim, even though, in layman’s terms, he has created a hostile place to work.
How should New Jersey and other employers protect themselves? Every employer in this state, regardless of size, must have a written anti-harassment policy. Every employer also must provide regular training to staff and supervisors as well as have procedures in place to monitor what goes on in the workplace. We also recommend forming a harassment committee to handle complaints, and suggest that at least one woman be on the committee to make it easier for a woman to come forward to lodge a complaint. Finally, employers should make it clear in their written policies that supervisors who observe inappropriate behavior or learn of it have an obligation to come forward and report it to the committee or face disciplinary action.
Adverse publicity from sexual harassment in the entertainment field and the government will die down. However, workplace harassment will not go away. Therefore, companies should act promptly to strengthen their policies and be vigilant when dealing with these types of allegations.