No Such Thing As A Free Lunch When It Comes to Sexual Harassment

Ignoring a female employee’s complaints that a male co-worker referred to her as “lunch” and simulated sex acts can draw scrutiny from the Equal Employment Opportunity Commission (EEOC).

The EEOC reported that Lowe’s would pay $700,000 to settle a discrimination lawsuit that the EEOC filed in the U.S. District Court of Arizona just a few weeks ago.

In a lengthy Consent Decree, Lowe’s also agreed to revise its anti-discrimination policies, promptly investigate claims of sexual harassment, report regularly to the EEOC for three years, provide letters of recommendation to the female employees affected, and train all of its employees on sexual harassment prevention measures.

Here’s What Happened

According to the complaint, one male employee made daily sexual comments and sexual innuendos to more than one female employee in one of the Arizona-based stores. This created a hostile work environment.

When the harassment worsened, the complaint alleged that the female employees complained to store management, but management did nothing to prevent continued harassment or remedy the behavior.

Also, at times, managers were allegedly present when the male employee acted inappropriately and failed to stop the harassment. Then they failed to report it.

What Makes This Conduct Sexual Harassment?

Federal law, in the form of Title VII of the Civil Rights Act of 1964 (Title VII), prohibits harassment of an employee (or job applicant) because of or on the basis of sex.

Harassment can include “sexual harassment” i.e., unwelcome sexual advances, requests for sexual favors, sexual innuendos, and other verbal or physical harassment of a sexual nature. The harassment crosses over into illegal territory when it is so frequent, i.e., “pervasive,” or severe that it creates a hostile or offensive work environment or results in an adverse employment decision.

The comments or conduct must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive.

And, of course, the employee herself or himself must consider the behavior to be offensive and abusive. Otherwise, it would not be unwelcome conduct!

Image by Wokandapix from Pixabay

Once an employer is aware that sexual harassment may have occurred, the organization is complicit if it fails to investigate and/or take corrective action.

What Steps Should Management Have Taken?

Here’s the thing: when an employee complains about discrimination or harassment, employers must, must, must take it seriously. Simple, yet effective. By treating such complaints with the gravity they deserve, an employer demonstrates to a factfinder that it acted to prevent or correct sexually harassing behavior.

Here are some basic steps employers should take:

  1. Have a clear, detailed anti-harassment policy with examples.
  2. Provide a written procedure for reporting and thoroughly investigating claims of unlawful harassment and follow the procedure, extensively documenting the process along the way.
  3. Begin investigations promptly and be thorough.
  4. During an investigation, employers should follow up with the individual who reported the harassment to ensure the person feels safe and to explain there will be no retaliation; again, document those conversations.
  5. Take swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating the perpetrator. Have clear standards for what type of conduct merits discipline and the types of discipline and enforce it—hold people accountable for misconduct.
  6. Provide regular, interactive, professional training to employees and managers tailored to the workplace so that employees and supervisors can recognize, respond to, and prevent unlawful harassment. Senior leaders should promote and attend the training to show commitment.
  7. Encourage reporting of any unlawful harassment and convey, through policies and consistent, uniform practices, that the company prohibits retaliation.
  8. Clarify that an employee who reports sexual harassment or discrimination will not suffer retaliation.
  9. Finally, maintain a “top-down” culture prohibiting unlawful harassment. People follow the leader.

Employer Takeaways

Aside from this 9-item checklist, employers must train managers to report this type of behavior and misconduct.

“The EEOC is committed to eliminating sexual harassment in the workplace,” said EEOC Phoenix District Office Trial Attorney Casey Arellano. “Employers must take action to stop all sexual harassment when they become aware of it so that workers can focus on doing their jobs and providing for their families.”

Stopping sexual harassment when employers learn about it? Yes, please.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.