Legalities of Sexual Harassment in the Workplace

Joel Wm. Friedman was the Jack M. Gordon Professor of Procedural Law and Jurisdiction at Tulane University Law School, and the program director for the school’s Master of Jurisprudence in Labor & Employment Law (MJ-LEL) program from 2016 to 2022. A J.D. graduate of Yale Law School, he joined the Tulane faculty in 1976 and is an internationally renowned expert in employee discrimination and labor and employment laws.

In response to the recent media spotlight on high-profile sexual harassment cases, Professor Friedman took an opportunity to address specific questions about how business leaders, corporations and human resources departments can discourage crude and inappropriate behavior in the workplace while also protecting themselves from liability with comprehensive anti-harassment policies.

Sexual harassment is not specifically prohibited by any applicable workplace statutes, including the Civil Rights Act, which prohibits discrimination based on sex, race, color, national origin and religion. Even so, sexual harassment is a form of workplace discrimination and is therefore a violation of the anti-discrimination law if and when it takes the form of prohibited sex-based discrimination. To be considered prohibited sex-based discrimination, sexual harassment has to affect someone's terms and conditions of employment explicitly because of their sex.

The term “sexual harassment” is misleading because the offending conduct or speech does not have to be sexual in nature; if an individual is abused in a non-sexual manner, it is still harassment. Instead, it is more accurate to think of this as sex-based harassment, meaning it was happening because of an individual’s sex, not because the behavior was inherently sexual.

To prove a case of sexual harassment, or harassment of any kind, the offending behavior must be shown to affect employment in one of two ways. First, something tangibly adverse happens to the victim as a direct result of the harassment. Alternatively, it can be a form of discrimination if the offending action creates a hostile working environment.

Under the anti-discrimination law, a victim of harassment has to prove that the company should be held responsible for the harasser, who may be a supervisor or co-employee, and s/he can only sue the company, not the individual perpetrator. If the harassment resulted in something tangibly affecting the worker’s job status (called quid pro quo harassment), then the company will be liable. But, where the harassment created solely a hostile environment, then the employer can escape liability (even if the harasser is a supervisor) if the company can prove that it provided and properly communicated the contents of an anti-harassment policy and the harassed employee never tried to take advantage of it. Where the harasser is a supervisor, the worker does not also have to prove that the company was in some way negligent in the way it handled the supervisor. But if the harasser is a co-employee of the plaintiff, and not a supervisor, then in order to make the company liable, the plaintiff will have to prove that the company was negligent in the way in which it monitored the workplace.

The heads of any human resources or legal compliance department have to ask themselves, “As a company what do I have to do at a minimum to avoid legal exposure?” At the same time, they should consider asking themselves, “What is a good business practice for public relations and morale purposes beyond the minimum?" This is what we talk about every day in the Tulane MJ-LEL program—the minimum obligations and beyond that may make sense from a business perspective.

At a minimum, any company needs to have an official anti-harassment policy. This policy can be part of a collective bargaining agreement that is negotiated with a union, or it can be provided directly to employees as part of a personnel contract. The policy itself should contain two parts:

• First is the content of the policy. In order to avoid legal exposure, the policy should prohibit any and all types of behavior (including speech) that constitute harassment, including quid pro quo harassment and hostile environment harassment. Most thoughtful companies go into detail in defining the types of conduct they believe are inappropriate, and how they define “inappropriate behavior” may go beyond the legal minimum. Additionally, some companies may have a zero-tolerance policy, going well beyond what the law requires.

• Second is the enforcement mechanism. Without this, the company is at risk on the liability side. The best practice for enforcing an anti-harassment policy is to have at least one, if not more, individuals who are designated to receive complaints. Those in this role should not be a supervisor, which would be futile if the supervisor were ever to be the alleged harasser. The ideal is to have human resources professionals who do not manage others; their primary, or only, role is to field and manage these complaints. Alternatively, this role can be outsourced to a third party.In conjunction with this, a solid policy should also include an investigation mechanism, and note that investigations are legally required to be thorough and confidential.

The anti-harassment policy must be distributed to all employees, and steps should be taken to ensure the policy is understood. Ideally, any reasonable company will also conduct routine training for workers and supervisors as to the content of the policy.

Finally, a reasonable anti-harassment policy should set forth specific consequences for violators. Some companies will opt for a zero-tolerance policy and others will establish different penalties for varying gradations of harassment. Either way, specific consequences give employees and managers confidence in the policy. If they are not confident in the policy's authority, they won't adhere to it.

In addition to the establishment of consequences for violators, an anti-harassment policy needs to be supported by individuals who receive harassment complaints and have no conflict of interest with those filing the charges. These individuals have to have credibility among the workers and they have to be trained in investigations, which in and of itself is a very important part of HR.

At Tulane, one of our MJ-LEL courses focuses entirely on investigations and how to conduct them. In practice, once the investigation is made, those overseeing must arrive at a decision for consequences that is consistent with the terms of the policy, which should clearly define penalties.

Not every harassment complaint is meritorious, and while companies should be committed to protecting those who complain, they need to also be concerned with the reputation of anyone who is charged with harassment. The fact of the charge itself can create an indelible stain even if no violation is found. This is part of why an investigation needs to be confidential; the name of the plaintiff needs to be divulged to the accused, but the company needs to be sensitive to the confidential desires of both the plaintiff and the accused.

Many times a plaintiff will come forward but then decide they don't want to proceed. This is hard for the company because they can still be liable if they haven't pursued these kinds of claims. My recommendation is that companies follow through on all complaints to protect their liability, even where the complainant decides not to cooperate with the investigation.

Have a transparent and detailed anti-harassment policy that is effectively enforced.

A formal academic background in law can be of critical benefit in any personnel management role, particularly when one considers the evolving nature of labor and employment regulations. Hear more from Professor Friedman and learn how you could advance your HR career with a more thorough understanding of the employment laws you may be asked to navigate.