Sexual harassment
Legally Speaking
Clifford Warren Lober, MD, JD, presents legal dilemmas in dermatology every other month. He is a dermatologist in practice in Florida and a partner in the law firm Lober, Brown, and Lober.
By Clifford Warren Lober, MD, JD, February 1, 2020
Question: What is sexual harassment?
Answer: The U.S. Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.” The EEOC further recognizes that a remark or action does not have to be blatantly or purely sexual in nature to constitute harassment. For example, sexual harassment includes making offensive or negative comments about women in general. Similarly, an offender does not have to go so far as to grope his or her victim. Staring or repeatedly gazing at another person’s breasts, legs, or buttocks, for example, is usually viewed as offensive, unwelcome, and/or intimidating. Sexual harassment can occur without economic injury.
Q: Does an occasional casual joke constitute sexual harassment?
A: No. The EEOC has stated that “simple teasing, offhand comments, or isolated incidents that are not very serious” do not constitute sexual harassment. It becomes illegal, however, when it “becomes so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision.”
Q: Is sexual harassment illegal?
A: Sexual harassment is a violation of Title VII of the Civil Rights Act of 1964 which applies to employers with 15 or more employees as well as employees of the federal government. Most states also have laws that prohibit sexual harassment.
Q: Are there different types of sexual harassment?
A: Sexual harassment takes two forms: “quid pro quo” and “hostile work environment.” Quid pro quo (“this for that”) occurs when the offender requests a sexual favor in exchange for a promotion, good grade on an examination, or not getting fired. A hostile work environment is created when an employee is subjected to suggestive comments or sexual advances as part of his or her work environment. It is usually harder to prove the existence of a hostile work environment than quid pro quo harassment. Furthermore, these two types of harassment can merge when, for example, an employee is subjected to a hostile work environment because they did not submit to a requested sexual favor.
Q: What are the effects of sexual harassment?
A: Sexual harassment can cause the victim to experience anxiety, apprehension, depression, sleeplessness, headaches, and other symptoms. Persistent sexual harassment can lead to post traumatic stress disorder. For the employer, harassment of an employee may result in absenteeism, reduced job satisfaction, increased employee turnover, and expensive lawsuits.
Q: How do the courts decide if sexual harassment has occurred?
A: Unfortunately, there is no bright line rule defining where “simple teasing” or “offhand comments” end and frankly offensive, harassing conduct begins. Each incident is evaluated on a case-by-case basis. Courts consider the totality of the circumstances, usually focusing on the nature, frequency, context, and intensity of the offensive conduct. A single, isolated verbal comment, unless glaringly offensive, is usually not enough to be viewed as having created a hostile work environment.
Q: Does the offender have to be of different gender than the victim?
A: Absolutely not. Sexual harassment can occur regardless of the gender of the offender or that of the victim. Similarly, just as an employer can harass an employee, an employee can harass his or her employer physically or verbally.
Q: What should a medical practice do to ensure that sexual harassment does not occur at the workplace?
A: The employee handbook should specifically address sexual harassment and emphasize that the practice has zero tolerance for such behavior. This policy should be emphasized to new employees, reinforced at scheduled office meetings, and posted in the employee lounge. A mechanism must exist for employees to report alleged sexual harassment promptly, and employees should be aware of that opportunity. Any reported allegation should be taken very seriously, and the practice’s legal counsel should be consulted if the allegation is anything more than “simple teasing” or an “offhand comment.”
