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January 15, 2016
The grounds for modern sexual harassment in the workplace cases were established in the now famous Ellison v Brady case. Over the past decades, the law has taken a stricter approach. Employers need to be aware that even behavior that could be viewed as innocuous may be frowned upon by the law— leaving employers open to litigation and liability claims.
An employer may be held liable for creating or failing to prevent a hostile work environment. The most common actions are based on suggestive comments, language, jokes, and the display of sexual photographs. Whether or not an incident will be viewed as sexual harassment is likely to depend on whether or not the incident is continuous or isolated. Its impact upon the victim and the annoyance or distress caused will also be considered. It is not likely that small issues will be considered harassment. The Supreme Court stated in Oncale v Sunflower Offshore Services Inc, 523 U.S. 75 (1998) that Title VII of the Civil Rights Act 1964 is “not a general civility code.” This means that although employers should take preventative measures to put a halt to harassment, isolated incidents and playful conversation will not amount to sexual harassment.
In Montana the Human Rights Commission in Dernovich v. City of Great Falls held that jokes that offended the female complainant, even though they were not directed at her, counted as harassment. In addition, Cardin v. Via Tropical Fruits, Inc held that the display of sexually themed cartoons of both men and women created a demeaning atmosphere. Georgia has no state law that prohibits sexual harassment, but employers that have fifteen or more employees are obliged to comply with the federal law in Title VII of the Civil Rights Act 1964. In Reeves v. C.H. Robinson Worldwide, Inc., the 11th Circuit Court of Appeals held that a hostile work place can include constant subjection to offensive language, even when it is not targeted at one specific person. In that case, the female employee claimed that she was constantly subjected to conversations and radio programs that degraded women.
This means that employers need to be careful. Even language that is not directed at one employee can be construed as sexual harassment. However, employers should also note that allegations of a hostile work place are judged on the facts of each particular case. In order to prove an allegation, an employee would need to prove 1. Intentional, unwanted discrimination due to gender, 2. That behavior or speech was severe or pervasive, 3. That it negatively affected the work place, 4. That it would adversely affect a reasonable person of the same sex, and 5. That management was aware of the situation, or ought to have known, and failed to stop it.
The best precaution employers can take to protect themselves against sexual harassment lawsuits is prevention. They should clearly educate employees on appropriate language and behavior, keep an eye out for any problems and stop them as soon as they occur. What some employees may consider a joke may translate into massive liability costs.