Top 3 Takeaways from the GovDocs Webinar: #MeToo and Sexual Harassment in the Workplace

By Kelsey Basten

Published on September 20, 2018

On Sept. 19, 2018, we hosted our quarterly webinar, #MeToo and Sexual Harassment in the Workplace. Kevin Mosher, Partner, Thompson Coe and founder of myHRgenius, discussed how the widespread #MeToo conversations in the U.S. have shed light on instances of harassment throughout all industries.

With thousands of claims being brought up in the workplace, we’re entering a time of empowerment to report abuse. This cultural change has made it critical for businesses to educate themselves on and implement policies and practices before #MeToo is #YouToo.

We’ve gathered the top three takeaways here:

1. Employers must recognize the difference between what is – and what isn’t – unlawful harassment

Unlawful harassment is conduct based on a protected class, in which the conduct:

• Becomes a condition of employment (“Quid Pro Quo”); or
• Is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive;
• And the employee did find it intimidating, hostile, or offensive (“Hostile Work Environment”)

Not Unlawful Harassment includes:

• Petty slights
• Isolated incidents (unless extremely serious)
• Annoyances

2. There are two different types of unlawful harassment

Quid Pro Quo

Quid Pro Quo occurs when the conduct becomes a condition of employment. Or, in the case of sexual harassment, there is a demand for sexual favor in return for a work-related benefit. This usually happens between supervisor and subordinate. Also, the employee benefit can be positive or negative and may include:

• Favorable reviews/recommendations
• Promotions
• Raises
• Sought-after shifts or assignments
• Employment (threat of termination)

A single action of quid pro quo is illegal and can be grounds for legal action. An employer may be found liable for actions of the supervisor who commits the harassment, as supervisors are deemed as acting on behalf of the employer.

Hostile Work Environment

Hostile work environment occurs when unwelcome offensive conduct, involving a person of a protected class, occurs. The conduct must be deemed inappropriate by a reasonable person. Also, the actions must be severe or pervasive enough to affect the condition of their employment.

A few examples of a hostile work environment include:

• Dirty or sexual jokes
• Profanity
• Staring, leering, catcalls, whistling
• Flirting, touching
• Display of inappropriate pictures
• Persistent unwanted actions
• Interference with someone’s ability to move freely
• Yelling

A hostile work environment does not always require an employee benefit to be at risk. Because of this, it is not usually tied to a promise or a threat and can exist across all levels of employment.

Also, inappropriate behavior can create a hostile work environment for other employees who were not the intended target.

3. Employers must conduct thorough, fair, neutral investigations to maintain company culture, morale, productivity, etc.

It is important for employers to conduct thorough investigations of all claims:

• Examine and assess allegations
• Determine the nature of the investigation
• Review applicable policies and collect facts
• Analyze facts against policies and act appropriately

Doing so will protect the employer from monetary liability. It will also protect employees and create a safe workplace, thus improving culture, morale and community/customer relations. Productivity will increase and improve as well, as employees will be more focused on their work. They will also feel empowered to stop harmful activities from occurring before they become an issue.

To learn more about harassment in the workplace, listen to our webinar recording of #MeToo and Sexual Harassment in the Workplace.