In an article last week by USA Today, reporter Jessica Guynn details allegations relating to the purported sexism that is rampant in Silicon Valley's technology industry and the technology profession in general. It's a good read for employees and employers who operate in industries typically dominated by male employees, such as construction, firefighting, law enforcement, accounting/finance and politics.
Employers who operate businesses in such industries need to be extremely vigilant with implementing and enforcing sexual harassment policies and procedures. In addition, employers need to pay close attention to hiring, pay and promotion practices to avoid claims of gender discrimination in compensation, promotion and hiring decisions. Employees who work in such industries who suspect that they are being treated differently on the basis of gender should seek competent legal counsel who can assist employees with analyzing their situations and exploring possible legal remedies. At Stavros Law, we have represented numerous employees and employers in gender discrimination and harassment claims, under Title VII of the Civil Rights Act, the Utah Anti-discrimination Act and the Equal Pay Act.
Sexual harassment and gender discrimination claims are one of the most frequently litigated employment law claims, and there is no indication that these claims are likely to decrease in the future. As such, it is critically important that employers understand sexual harassment, when they can be held liable for harassment and how to avoid harassment claims. Similarly, employees should be familiar with what types of conduct qualify as sexual harassment, as well as how to report harassment and respond to inappropriate behavior in the workplace.
Sexual harassment is not limited to the typical quid pro quo situation involving a male superior and female subordinate. It can include a hostile work environment, same-sex harassment, harassment based upon gender stereotypes, and harassment by non-employees such as customers and clients or other third-parties with whom employees interact while working for their employer. And of course, these claims can be asserted by both men and women.
In 1986, the U.S. Supreme Court, in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), held that sexual harassment was actionable under Title VII whether committed by an employer's supervisor or another employee, and set forth the standards for determining liability for harassment. Following Meritor, the U.S. Supreme Court issued two significant decisions in 1998 - Faragher v. City of Boca Raton, 524 U.S. 775 and Burlington Industries v. Ellerth, 524 U.S. 742 (1998) which created the foundation for current sexual harassment law under Title VII of the Civil Rights Act and which attempted to clarify the standards for harassment. For harassment by supervisors, employers are generally strictly liable for harassment, and can only avail themselves of an affirmative defense where no tangible adverse employment action occurs as a result of the harassment. Where no tangible adverse employment action is taken, an employer may escape liability if it can prove (1) that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) that employee unreasonably failed to take advantage of such preventive or corrective opportunities. For harassment by co-workers or third-parties, the employer is only liable if it knew or should have known about the conduct and failed to take actions to stop it.
Development and implementation of a robust sexual harassment policy and complaint procedure is critical to minimizing the likelihood of sexual harassment and eliminating legal claims for harassment. Employers should have a detailed harassment policy that includes a clear complaint procedure and it should train employees on its policies on an annual basis. In addition, supervisors should receive additional training on how to identify, report and respond to allegations of harassment in the workplace. The importance of responding to complaints, thoroughly investigating the complaints and implementing prompt remedial action cannot be overemphasized. This is especially true in industries where the workplace may be dominated by one sex, where the likelihood of "locker room" behavior and other inappropriate behavior is greater.
For more information about sexual harassment and gender discrimination claims, contact Stavros Law at 801-758-7604 or visit our website at stavroslaw.com.
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