Sexual Harassment
Monday, August 14, 2006
Contributed by: Dan L. Schaap
"Or" means "or"; it doesn't mean "and." Why should employers care? Because the 5th Circuit Court of Appeals has confirmed that conduct that is either severe or pervasive can be bad enough to create a sexually hostile work environment. In other words, one isolated incident of unwanted, inappropriate touching can be enough to constitute sexual harassment.
Prior to its decision in Harvill v. Westward Communications, L.L.C. (2005), the 5th Circuit often analyzed how much harassment had occured to determine, as a practical matter, whether the conduct in question was severe (bad or egregious) and pervasive (frequent or prevalent). Those days appear to be over, and employers will find it increasingly difficult to win these cases by proving the alleged harassment was not bad enough. On July 7, 2006, the Court of Appeals again confirmed the "or" standard in McKinnis v. Crescent Guardian, Inc.
So what does this mean for employers? Policies requiring employees to report harassment are even more important now. Reporting should not be optional, and the policy should provide more than one avenue for reporting in the event that the employee is not satisfied with the initial response. Once the complaint is received and investigated, the employer should commit the employee to a written statement of the events. Then, take prompt remedial action as appropriate.
Diligent employers should remind employees of their harassment policies on a regular basis, and (broken record time) these policies must be applied consistently across the board. Although "that's not bad enough" is now a harder defense to sell, diligent employers can still win these cases.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
