sexual harassment claims dating

What is Sexual Harassment?

What is sexual harassment?

Not all harassment is sexual harassment and not all sexual conduct is sexual harassment.  So then, what is sexual harassment?  Sexual harassment is defined as:

  • Unwelcome verbal or physical conduct of a sexual nature when
    • submission to such conduct is made explicitly or implicitly a term or condition of employment; or
    • submission to or rejection of such conduct is used as a basis for employment decisions affecting the employee; or
    • such conduct has the purpose or effect of unreasonably interfering with the employee's work performance or creating an intimidating, offensive or hostile work environment.
What is sexual harassment
What is sexual harassment

Let's break this definition down a bit.  You will notice that we have underlined some key terms in the definition above.  We explain each of these terms below.

  1. Unwelcome - the conduct must be unwelcome by you.  Thus, if you are a willing participant in the conduct at issue, you cannot then turn around and claim sexual harassment. Keep in mind, though, that the unwelcome conduct does not have to be directed at you.  For example, it could involve employees talking amongst themselves, or someone else being harassed (even if that someone else does not personally object to the conduct).  So long as it impacts your working conditions and it is unwelcome, this definition is met.
    • We see a lot of employers attacking the "unwelcome" aspect of employees' claims on the basis that - whatever the conduct - the employee was a willing participant.  This is really hard on the employee.  A lot of the time, an employee will play along with conduct that they find objectionablejust so that they get along and not make waves.  Also, people are afraid of being ostracized if they complain about conduct.  The best practice may be to contact an employment attorney as soon as you believe that you are being subjected to unwelcome conduct of a sexual (or any other) nature.  A good employment attorney can help guide you through complicated workplace politicking and may help you either end the conduct altogether or wind up in a better place.
  2. Sexual Nature - the conduct must be of a sexual nature.  It is the sexual nature of the conduct that puts the "sexual" into sexual harassment.  If the unwelcome conduct is not of a sexual nature, you may still have a claim (e.g. for hostile work environment based on race, national origin, age, etc.), but you do not have a claim for sexual harassment.
    • There is almost no limit to what the nature of the conduct could be.  The obvious examples are crude words, touching and gestures, but there is no limit to the creative ways that creeps find to harass victims.  The term "conduct" is broadly defined, and there are many cases involving almost every imaginable type of conduct.
  3. Term or Condition of Employment/Basis for Employment Decisions - the conduct has to impact your employment.  This can happen in a number of ways.  The most common is know as "quid pro quo" (meaning "this for that") sexual harassment.  In a typical quid pro quo sexual harassment scenario, the employee must submit to the sexual harassment or else risk being terminated, demoted, marginalized, etc.  However, the sexual harassment does not have to quid pro quo in order to impact the terms and conditions of employment.  Frankly, if the conduct is so bad that a reasonable person would feel uncomfortable in your working environment, the conduct may rise to the level of sexual harassment.
    • Keep in mind that although the conduct must impact your employment, it does not have to occur at your place of employment.  Work outings and holiday parties, for example, are hotbeds for sexual harassment.
  4. Hostile Work Environment - lastly, the conduct has to be really bad.  Bad enough that it creates what is known as a hostile work environment.  Really, sexual harassment is just one category of hostile work environment - it is a hostile work environment based on sex (as opposed to race, age, disability, etc.).  The concept of hostile work environment is too involved for this blog post, but for further information please read this article.  But do keep in mind that this is a "reasonable person" standard.  Just because an employee may be offended, that alone does not convert otherwise benign conduct into a hostile work environment.  It has to be bad enough that a so-called "reasonable person" would be adversely affected.

Questions?  Concerns?   Contact us - we can help!

Is Workplace Dating a Good Idea?

Office Romance
Office Romance

In today’s economy, working longer hours are a way of life for those who want to get ahead or simply stay employed.  For many, these increased demands preclude the ability or desire to spend time dating.  As a result, many employees turn to the workplace to find their romantic partners.   Many single employees wonder whether dating in the workplace is a sensible option. It is no surprise that relationships blossom within the workplace when one considers that many rising stars in the business world are young and single.  Combine that with the close proximity and long hours employees spend together, and it is no wonder that coworkers start to develop romantic relationships.  In some cases, workplace romances have proven to be more successful than those outside of the office – a recent CareerBuilder survey shows that 31% of office romances even progressed into marriages.

But there are just as many pitfalls from office romance as there are benefits.  If you involved in a workplace romance, you consider these questions first.

Does My Company Have a Policy on Workplace Dating?

Some businesses gave policies which strictly forbid dating amongst coworkers.   These polices are typically created to reduce the business’s exposure in the event something goes wrong.  If your company policy states that employees may not have romantic relationships with other employees, then you put yourselves at risk if you continue to pursue the relationship.  You may also forgo rights to file a lawsuit for hostile work environment, sexual harassment, or other claims that may relate to your romantic relationship.   Lawsuits like these cost businesses money, so they build in protections that may limit your options if you choose to ignore them.

Do I Need to Declare My Relationship?

Other businesses might allow romantic relationships, but only if both employees bring the relationship to the attention of the company.  Again, this is usually so the employer can inform you of your rights and responsibilities, but may also require you both to sign a document that you are both consensually entering into the relationship and will not hold your employer accountable should anything go wrong.

Should I Avoid a Relationship with My Boss?

Think carefully before entering into a relationship with either your superior or someone who reports directly to you.  Not only could a relationship like that lead to gossip and discomfort among other coworkers, but there are legal ramifications there, too.  If projects or promotions are awarded within your relationship, others may claim favoritism.  If the relationship ends, there could be animosity or questions about punishment or retaliation.  If the relationship is your priority, consider requesting a transfer into another department so those issues will not cloud your judgment.

While more and more companies are enacting policies on dating in the workplace, it is increasingly important to know your rights and options.  If you are a business owner, enacting such a policy may help to protect you and your employees.  If you are an employee, make sure you know the rules before going forward with a workplace romance.

If you have questions about workplace relationships, the experienced employment lawyers at Granovsky & Sundaresh PLLC can help you.  Contact us today for a free initial consultation at 646.524.6001.