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Understand Duties and Rights Regarding Sexual Harassment


Q: I frequently hear about sexual harassment.  Does the law specifically address it?
A:
 Though there is no specific, written federal or Ohio law regarding sexual harassment, a number of court decisions based on state and federal laws against sex discrimination have addressed the subject.  As these decisions become part of the “common law,” they are used to decide future cases involving sexual harassment. Cases involving sexual harassment most often concern workplace behavior, which is the subject of this article.

Q: What is considered “sexual harassment” in the workplace?
A:
 Sexual harassment is severe or pervasive conduct that can take many forms, including unwelcome sexual advances, requests for sexual favors and inappropriate sexual comments or references.  Often, sexual harassment is physical, verbal or visual, and involves an express or implied expectation that harassing actions must be tolerated in order to get or keep a job.  Such an expectation also may be considered “sexual harassment” when used to make employment decisions (e.g., giving raises or promotions), or when inappropriate sexual behavior creates a hostile or intimidating work environment. 

Q: What are some examples of sexual harassment?
A:
 Generally, circumstances determine whether conduct is considered sexual harassment. Examples may include sexual teasing, jokes or comments, massages or sexual touching, certain personal gifts, the display of sexually suggestive material and personal questions about an individual’s sexual life. 

Q: Why should an employer be concerned about sexual harassment?
A:
 First, it is good business for employers to foster a positive work environment.  Second, employers have a legal duty to provide a working environment that is free from sexual harassment.  Employers and employees who act unlawfully may face legal liability.

Q: Are all workplace relationships prohibited?
A:
 No.  The laws against sexual harassment do not prohibit consensual relationships between co-workers.  An employer may, however, enforce reasonable rules concerning workplace relationships.

Q: I own a small company.  What should I do about sexual harassment?
A:
 First, make it clear, in writing, that sexual harassment will not be tolerated.  Make sure each of your employees is aware of your written policy, which should contain information about how and to whom complaints can be made.  Second, promptly investigate any allegation of sexual harassment, even if the reporting employee does not want an investigation.  Conducting an investigation is the best way to find out if any other incidents of sexual harassment may have occurred.  Third, take reasonable steps to eliminate any existing sexual harassment.

Q: What are my responsibilities as an employee?
A:
 Make sure your conduct cannot be construed as sexual harassment.  If you believe you have been subject to or have witnessed sexual harassment, confront the alleged harasser if possible.  “Going along” sends the wrong message.  Also, you should follow the company’s harassment policy and report sexual harassment to the appropriate individual.

Q: How can I tell the difference between sexual harassment and consensual conduct?
A:
 Whether conduct is sexual harassment depends on the circumstances.  Courts will consider all of the factors.  Usually, the question is whether a reasonable person would perceive the conduct to be sexually harassing in nature.  Generally, the issue is not whether the alleged victim engaged in some sexual discussions or jokes, but whether the conduct is unwelcome.  Employees should not assume, however, that certain comments or jokes are acceptable simply because others have not complained.  Although not a legal test, one way to identify unacceptable conduct is to consider how much embarrassment a newspaper report of the actions or comments might cause.

Q: What rights do I have if my boss is sexually harassing me?
A:
 You can file a charge of discrimination with the Ohio Civil Rights Commission (OCRC) or the Equal Employment Opportunity Commission (EEOC). You also have the right to file a lawsuit in state or federal court.  Generally, you may file a federal lawsuit only after having filed a charge of discrimination with the EEOC and receiving a “right to sue” letter.  If you bring a lawsuit and it is successful, the court could grant you monetary damages for back pay as well as compensatory damages and even attorney fees.

5/7/2009

Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association (OSBA).  This article was prepared by attorney Marc Fishel, a partner in the Columbus firm of Downes, Hurst & Fishel.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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