Units Publication
Sexual Harassment
What You Don't Know Can Hurt You
Reprint From: Highbeam Research
Date: 5/1/2000; Publication: Units;
Author: FRANKLIN, LYNN G.

Do you know what sexual harassment is and when your company may be held liable for it? This
will provide an overview of the various types of sexual harassment for which an employer can be
liable, as well as examine areas of the law which require further definition.

Please complete the sexual harassment survey available through the National Apartment
Association's website--www. naahq.org--by June 30. Responses will remain confidential. Survey
results will be published in a future issue of Units.

Sexual harassment has received more than its fair share of media attention in recent years. While
the media often focuses on the emotional or dramatic side of the subject, from an employer's
perspective, the real concerns are what is prohibited and how do you prevent it from occurring in
your business?

Employers have good reason to be concerned about the potential occurrence of sexual harassment.
In recent rulings by the United States Supreme Court, there is greater potential for employer
liability for sexual harassment under certain circumstances. Other decisions of the courts have
extended Title VII, the federal law which prohibits sexual discrimination and harassment in the
workplace, to a wide array of scenarios, most of which employers never anticipated they might be
responsible for.

With all the information tossed about in recent years regarding the subject, most employers and
property owners/ managers probably believe they know enough about sexual harassment to protect
themselves against it. Most employers would be wrong to make that assumption, based on statistics.
The current law would indicate the same. Last year, the Equal Employment Opportunity
Commission (EEOC) received 15,222 sexual harassment charges against various employers
throughout the country. Almost any employer could wind up facing an EEOC charge or worse, like
a federal lawsuit, simply by failing to know what goes on daily in the workplace and by failing to
understand the potential ramifications of conduct that might seem innocent at the time.
The common and emerging faces of sexual harassment

Under Title VII and most related state legislation, there are various types of sexual harassment for
which an employer can be held liable. The most widely known and discussed variations are quid
pro quo harassment and hostile work environment claims. Quid pro quo harassment claims involve
situations where a property manager makes unwanted sexual advances to which an employee must
submit to avoid detrimental impact of job benefits, such as promotions, work assignments, raises or
continued employment. Of course, conduct which could give rise to a claim for quid pro quo sexual
harassment is not often so simple or clear cut. The threat of consequence does not necessarily have
to be spoken, but could be implied through non-verbal conduct or resulting job loss following a
refusal to comply.

Hostile work environment claims arise where there is allegedly offensive conduct or conditions of a
sexual or gender specific nature in the workplace which are sufficiently pervasive so as to alter the
conditions of the victim's employment and create an abusive work environment. Hostile work
environment claims can arise from the conduct of a supervisor, co-worker, or even a non-employee.
The identity of the perpetrator is relevant for purposes of the degree in which the employer will be
held liable. The severity of the conduct which gives rise to a hostile work environment claim,
however, is generally the same regardless of the perpetrator.

Harassment by a supervisor
Under the current law, when the hostile work environment is created by a supervisor and the
employee suffers job detriment, the employer can be held liable. From a legal perspective, that
means the employer has no defense once the employee establishes conduct which violates Title VII.
Previously, employers were only held liable when an employee proves quid pro quo harassment. In
contrast, liability for a hostile work environment created by a supervisor, depended more on
whether the employer took prompt action to resolve the situation once aware of it.
Under the current standards, however, the line between quid pro quo harassment claims and hostile
work environment claims blurs. An employer is now liable when a sexual advance or inappropriate
sexual conduct by a supervisor is followed by job detriment or hostility from the supervisor,
without any expression of a threat of consequences.

The crucial factor for liability is whether the employee suffered a "tangible job detriment" or a
"tangible employment action" which ultimately is detrimental to the employee. A "tangible job
detriment" or "tangible employment action" has been defined as a significant change in
employment status. Such a broad definition, not surprisingly, has left courts with the burden of
determining what rises to the level of prohibition.

The general consensus is that unfulfilled threats are insufficient, but termination or demotion are
clearly sufficient to qualify as tangible employment action. Some examples of tangible employment
actions in between these two extremes include: failure to hire or promote; undesirable
reassignment; or a decision causing a significant change in benefits, compensation decisions, work
assignment or job duties.

When an employee is harassed by a supervisor and no tangible employment detriment or action
follows, an employer still has a legal defense which they can raise as an affirmative defense to
liability or damages. In this circumstance, the employer may avoid liability by showing conduct
designed to deter harassment in the workplace.

The affirmative defense which may be asserted has two elements. First, the employer must show it
used reasonable care to prevent and correct any harassment. Second, the employer must show that
the employee failed to take advantage of any preventive opportunities provided by the employer.
The EEOC has strict guidelines regarding what evidence is sufficient to establish this defense. All
employers should take heed of those guidelines when developing and implementing policies and
practices designed to deter harassment.

Harassment by a co-worker
A slightly different standard of liability is imposed on an employer where a co-worker is
responsible for creating a hostile work environment for an employee of equal or greater authority. It
cannot be said that the acting party is acting with the authority of the employer, or that the coworker
was directly responsible for any tangible employment action unfavorable to the victim.
Accordingly, an employer is only held liable for harassment by a co-worker in which the employer
know or should have known of the conduct, but failed to take prompt action. For this type of claim,
the employer is not held accountable for conduct of employees of which it had no knowledge.
However, an employer is responsible to make reasonable efforts to know what goes on in the
workplace. In that regard, certainly what an employer is not aware of can become a serious issue of
potential liability.

The elements of a claim for sexual harassment by a co-worker require showing that the employee:
* was subjected to unwelcome harassment;
* that the harassment was based on the employee's sex;
* that the harassment was sufficiently severe or pervasive to alter a term or condition of
employment, and;
* that the employer knew or should have known of the harassment, and failed to take prompt action.
Conduct that is not severe enough to create an objectively hostile or abusive environment--an
environment that a reasonable person would find hostile or abusive--is beyond Title VII's purview.

Likewise, if the victim does not perceive the environment to be abusive, the conduct has not altered
the conditions of the victim's employment, and there is no Title VII violation.

Conduct which creates a Hostile Work Environment
By law, to rise to the level of unlawful conduct under Title VII, the conduct in question must be
sufficiently pervasive and severe as to alter the conditions of employment. The issue of
pervasiveness is relatively clear cut. In most cases, a viable claim involves repeated conduct.
Isolated acts or occasional episodes are not enough. Courts will, however, look at singular incidents
of harassing conduct to determine if, over time, such conduct resulted in a pervasive atmosphere of
hostility.

The issue of the severity of the conduct, however, is a murkier topic. While one incident is
generally insufficient to meet the requirement of pervasiveness, a single act could create a hostile
environment of sufficient severity. As noted earlier, actionable conduct consists of that which a
"reasonable" person would find offensive and objectionable, and that which the victim found
offensive and objectionable. While circumstantial and direct evidence of the victim's subjective
view of the conduct can be evidenced by the victim's testimony, and observable conduct or actions
of the victim, no such evidence is available to establish whether a "reasonable" person would find
the conduct in question to be offensive or objectionable.

Indeed, for a hostile work environment claim, there is no universal "objective" guideline to
determine when conduct crosses the line from banter to harassment. Courts have provided a few
examples of general conduct which could give rise to a hostile work environment claim, which
include sexual comments or jokes; unwelcome physical contact; cartoons, posters, magazines or
drawings with either direct sexual content or which could be construed as having sexual
connotations; or any combination of the preceding which may be deemed to be "sufficiently"
pervasive to alter the work environment. Nonetheless, the insight offered by the courts still amounts
to only general classifications of conduct or circumstances, all of which become relevant only by a
matter of degree. Unfortunately, the questions still remain. What conduct is sufficiently severe?
Who is the "reasonable" person?

When workplace conduct crosses the "line" is still one of the questions which hangs over the upper-level
management and human resource professionals who are required to intervene in harassment
disputes. This group often look to the courts for guidance on such issues. More often than not, even
in litigation, that determination is left for counsel to argue and the court to decide upon their own
experiences, understandings, and prejudices.

To define what conduct our society deems to be "reasonably" objectionable, this sexual harassment
survey has been developed. The survey includes various depictions of workplace situations which
include scenarios of varying circumstances and degrees of severity. The survey is designed to
establish a national standard as to the objective component of a hostile work environment claim,
such as what conduct is offensive or objectionable to the average or "reasonable" person.
A national sampling of responses to the survey will provide a clear understanding as to what
conduct is deemed tolerable and intolerable in present day society, with consideration of relevant
cultural variables, such as the geographic region, type of employment, gender, age, education, and
other relevant factors of diversity. Please visit the NAA website to take the survey.

Equal Employment Opportunity Commission Definitions
Title VII "... an unlawful employment practice for an employer to discriminate against any
individual with respect to his [or her] compensation, terms, conditions, or privileges of employment
because of such individual's sex." 42 U.S.C. 2000e-2(a)(I).

Sexual harassment under Title VII: "... unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature."
See 20 C.F.R. 1604. 11(a) (1993).

NAA Industry Related Scenarios of Sexual Harassment

The following are examples of potential situations which can or have arisen in the multifamily
housing industry. Will the company be liable for the conduct?

Example 1 A male property manager makes suggestive and flirtatious comments to the part-time
female leasing consultant regarding her appearance and attire. He has also started to drop by the
complex on the weekends, during his off-duty hours, while the leasing consultant is working alone.
He has asked her out on several of those occasions, and she has repeatedly turned him down. The
property manager did not intend to offend the leasing consultant, or make her uncomfortable, but is
unaware of the impact of his actions. The leasing consultant states her concerns over his conduct to
her co-workers, but not to anyone in management.

Is this sexual harassment? A court could likely conclude that the property manager's conduct is
sexual harassment under Title VII, given the supervisory position of the property manager, the
nature of the comments, the unwarranted visits, and requests for dates. The leasing consultant's
failure to report to management is of no consequence if she subsequently suffers some form of job
detriment by the property manager. If her work conditions remain the same, the court will examine
the reasonableness of her failure to tell management, and the company's practices and policies
regarding sexual harassment in the workplace. The fact that she discussed the matter with coworkers
only adds to the company's potential liability, in that the company may still be found to
have had knowledge of the conduct, or have had reason to know of it. All employees should be
expected to report incidents which they feel violate the company's policies. Allowing them to do so
anonymously might further their interest in reporting information of this nature.

Example 2 A male maintenance technician supervisor makes suggestive comments in conversations
with female members of the office and leasing staff, and he frequently discusses his sexual
preferences and exploits. He also asks the female employees about their sexual experiences. The
staff has not shown any interest in conversations of this sort with him, and a few of them have told
him to "Get lost." The female employees do not work with the maintenance technician supervisor
on a day-to-day basis, and the comments do not occur every time he visits the office. The female
property manager has witnessed these conversations, but has not instructed the maintenance
technician supervisor to refrain from such conduct. She is concerned that well-trained employees
are difficult to find, and does not want to have to replace her maintenance technician supervisor,
who is otherwise a good employee. After another suggestive comment by the maintenance
technician supervisor, a female employee tells the property manager that she found the comments
disgusting. The property manager says, "Well, you know how he is, but you don't work with him all
the time, so just ignore him."

Is this sexual harassment? Again, a court would likely find this conduct to create a hostile work
environment, and therefore, as actionable sexual harassment. Since the conduct is by a co-worker,
the female employees subjected to the hostile environment need not have suffered a job detriment.
Rather, for the company to be liable, it must merely have had knowledge of the situation, and failed
to take action to remedy it. While the property manager's concern over qualified employees is
understandable, that is not a ground to allow one employee to become a menace to the others. The
property manager could likely have resolved the situation by addressing the matter openly with the
maintenance technician supervisor, first with a verbal warning, then followed by a written warning,
and subsequent termination for repeated conduct. This protects the company, the female employees,
and gives the offending employee the chance to alter his workplace conduct.

Example 3 Two female potential residents have taken a fancy to a male leasing consultant, and
begin to flirt with him when he takes them to view the model apartment home. They stand in close
proximity to him during the tour, and ask him many personal questions, including his marital and
dating status. Before deciding to rent an apartment home from him, they return several times while
he is on duty, and request to be shown the model again. During the last such visit, one of the
potential residents comments on the leasing consultant's physique and pinches him. After this
incident, he begins to receive frequent calls from one of the females while he is at work. He finally
asks another employee to assist the two female potential residents and tells the property manager he
feels uncomfortable assisting them. Because he is somewhat embarrassed, he does not explain the
situation to his property manager.

Is this sexual harassment? Although the potential residents are not employees, they have contact
with the leasing consultant through the scope of his employment. Both the Courts and the EEOC
have found such conduct by a non-employee to be actionable in the same manner that it would be if
the conduct were by a co-worker, with the exception that the employer must have some reason to
know of the conduct before liability will ensue. The leasing consultant informed the property
manager of a concern, and asked another employee for assistance. Also, an employer is held to have
knowledge of conduct which transpires on a frequent basis in an open and observable way. The
other employees likely noticed the return visits of the two females, and, if the company maintained
traffic records with information regarding the visitors, the company could be found to have had
sufficient information regarding the situation to be held liable. All of those factors weigh in favor of
liability on the part of the company. To avoid liability, the company must follow-up on all
employee concerns to ensure that necessary information is not ignored. It is also a good practice to
maintain an open-door policy with employees, allowing them to apprise management of situations
which arise in the workplace. Employees, at all levels, should be advised to notify management or
human resources of any unusual conduct by a non-employee which takes place in the workplace or
in the scope of employment. A company can be held liable for the conduct of the public, the
residents, and even vendors, who interact with employees.

Court Cases
Same Sex Harassment
Does a same sex harassment claim fall under Title VII?
Case: Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998, 1003 (1998).
Decision: Affirmative
Analysis: The Supreme Court was faced with harassment of a homosexual male employee by other
male employees. The conduct which the Court found within the purview of Title VII was the
harassment directed toward the employee because of the harasser's attitude toward homosexual
men. The distinction was that if the harassment was only due to the victim's sexual preference, and
it was evident those involved in the harassing conduct would have treated a homosexual female in
the same manner, there would be no Title VII liability. In short, the critical issue is whether a
member of one gender is exposed to conditions of employment to which members of the other
gender are not. The Supreme Court noted that courts should not confuse "horseplay, intersexual
flirtation, or ordinary socializing" as unlawful conditions of employment.

Non-Employee or Third Party Harassment
Does Title VII protect individuals beyond the traditional victim of harassment or discrimination and
which circumstances fall under that protection?
Case: Lockard v. Pizza Hut, et al.
Decision: Affirmative
Analysis: A waitress was awarded $200,000 in compensatory damages for a hostile work
environment created by two customers. The imposition of liability on the employer for the conduct
in question was premised on the expectation that the employer ultimately has control over the
conditions of the work environment. A non-employee may also be able to sue the employer of a
harasser in which the non-employee came into contact with the harasser solely through the
harasser's employment. This type of claim would arise in circumstances directly converse to those
in the Lockard case--where, for example, a customer is harassed by an employee.

Expansion of Sexual Harassment Cases
What constitutes acceptable conduct?
Case: Faragher v. City of Boca Raton
Decision: "... in order to be actionable under the statute, a sexually objectionable environment must
be both objectively and subjectively offensive." Faragher, 118 S. Ct. at 2283.
Analysis: the Supreme Court directed lower courts to examine "all of the circumstances" when
considering whether workplace conduct rises to the level proscribed by Title VII.

Author: Lynn G. Franklin, Esq.

COPYRIGHT 2000 National Apartment Association
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