ADDRESSING SEXUAL ABUSE IN THE WORKPLACE
LEGAL RIGHTS AND REMEDIES
Types of Sexual Abuse: Harassment, Assault, and Coercive Behavior
Sexual harassment is unwelcome conduct or treatment related to a worker’s gender or sexual orientation which creates an uncomfortable workplace environment. It may consist of verbal, written, or physical conduct and can even entail non-sexual behavior directed at someone because of that person’s gender or sex. Typically, there must be a pattern of deplorable behavior, but a single act of violence or extreme misbehavior, such as workplace sexual assault, could be enough to establish intolerable working conditions.
Identifying Sexual Assault in the Workplace
Identifying Sexual Assault in the Workplace
If sexual harassment turns to unwanted touching or worse, this may constitute sexual assault. It can start small, often beginning with undesired comments or advances. However, it may escalate to involuntary touching of private parts either through direct contact or over clothing, such as:
- forced penetration or oral sex;
- coerced sex using a weapon or threats of violence; and/or
- involuntary sex while incapacitated by alcohol or drugs.
Recognizing Coercive Behavior in Employment Settings
A harasser’s conduct may constitute coercive behavior when:
- submission to that conduct is made either an explicit or implicit term or condition of employment (such as promotion, training, overtime assignments, leave of absence);
- submission to, or rejection of, the conduct is used as a basis for making employment decisions; or
the conduct has the purpose or effect of substantially interfering with an employee’s performance, or it creates an intimidating, hostile, or offensive work environment.
The Impact of Sexual Abuse on Employees
Emotional and Psychological Consequences
Workers who are targeted may experience feelings of exploitation, powerlessness, or shame.
Professional and Career Implications
Sometimes, the working environment is so intolerable that the employee feels like they have to quit to protect themselves. But even in less severe cases, a targeted employee’s work performance might suffer; this may include tardiness or excessive absences. Moreover, a targeted employee may experience the loss of work recommendations, demotion, unfavorable job assignments, exclusion from work activities, termination, or losing creditability in their industry.
Employer Liability for Failing to Address Sexual Abuse
Employer liability generally depends on whether the harasser is the target’s supervisor. An employer generally is liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises) only if it knew, or should have known, about the harassment and failed to take prompt and appropriate action to stop/address the harassment.
In contrast, an employer generally is automatically liable for a manager or supervisor’s sexual harassment, even if no one in human resources or management knew about the misconduct. Moreover, an employer generally is liable for a supervisor’s harassment if it culminates in a tangible employment action such as firing, failure to promote or hire, demotion, undesirable reassignment, reduction in benefits or compensation, and loss of wages. However, in cases where the harassment does not result in a tangible employment action, an employer can avoid legal liability if it can prove that:
1) it reasonably tried to prevent and promptly correct the harassing behavior; and
2) the employee unreasonably failed to take advantage of the employer’s preventive or corrective opportunities.
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Preventing Sexual Abuse in the Workplace
Employer’s Duty to Prevent Sexual Abuse
Employers not only have a legal duty to take prompt action to address sexual harassment in the workplace, but they also have a legal duty to take preventive measures.
Creating a Safe and Respectful Work Environment
Employers can create a safe and respectful work environment when executives, managers, and supervisors lead by example, demonstrate respect, and encourage employee input.
Furthermore, employers may meet their obligation to prevent and address harassment by adopting an explicit anti-harassment policy. It should include:
- a definition of sexual harassment;
- a provision that unwelcome harassing conduct will not be tolerated;
- a provision that retaliation against anyone who complains about or reports sexual harassment will not be tolerated;
- an effective complaint and reporting procedure;
- a description of the investigation process;
- appropriate disciplinary procedures; and
- a description of confidentiality expectations for all persons involved in the process.
Implementing Effective Anti-Sexual Harassment Policies
Employers must also effectively communicate those policies with the workforce, including incorporation in employee handbooks, and relevant online information. They must also consistently enforce these policies and procedures and take all complaints seriously. In the event of a complaint, employers should conduct an immediate and thorough investigation. Should the complaint turn out to be valid, the employer’s response should be swift and effective.
Conducting Training for Employees and Supervisors
Employers should train supervisors, managers, and all other employees on the policy as part of their orientation. They should also provide regular reminders and updates, at least annually.
Empowering Employees to Speak Up and Report Abuse
Encouraging a Culture of Open Communication
Employers must keep the lines of communication open and aim to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed. Moreover, employers should regularly monitor their workplaces. This may include asking for employee input about the work environment and observing the workplace for harassing conduct, including written and verbal communications.
Supporting Whistleblowers and Reporting Mechanisms
Employers should provide workers with a selection of several routes for employees to submit complaints. In some circumstances, a supervisor or manager may be the harasser, therefore, an employee will need another reporting option, such as a human resources representative.
Anonymous Reporting Options
Employers should also provide anonymous complaint and reporting options, such as a private phone hotline or a silent witness online reporting form. An additional option might be a confidential reporting service managed by a third party.
Mediation and Conflict Resolution
Mediation is the use of a third-party neutral to intervene between parties who are in conflict. Because arbitration and litigation are usually expensive and time-consuming, can be embarrassing, and may not provide a satisfactory solution, mediation may be the best method to resolve harassment complaints.
The confidentiality of mediation affords benefits to both employees and employers. However, mediation may not be advisable if it is not likely that the parties could come to a resolution for which both sides are satisfied.
Filing a Formal Complaint with the EEOC or State Agency
In most cases, a worker is required to file a complaint with the federal Equal Employment Opportunity Commission or their state or local fair employment practices agency to have any legal recourse. The worker must not delay as there are strict time limits for filing with these agencies.
Pursuing Civil Litigation: Lawsuits Against the Perpetrator and/or Employer
If a harassment complaint cannot be satisfactorily resolved via mediation or a government enforcement agency, a worker may choose to pursue a civil lawsuit against the perpetrator and/or employer. Workers should consult with legal counsel regarding their options.
If you or someone you know has experienced sexual abuse in the workplace and are in need of legal representation, contact the experienced attorneys at Rothschild and Alwill, APC. We will fight for your case and find the best solution for your unique situation.
To schedule your free, no-obligation initial consultation with an experienced employment law attorney, contact us online or call us in Santa Barbara at 805-845-1190 or Bakersfield at 661-369-8510. There is no reason to suffer in silence. If work isn’t working for you, take the first step and get help today.