Last month I wrote that conduct that is sexual in nature does not necessarily constitute sexual harassment unless it is directed at a person because of his or her sex. But what about conduct that is not necessarily sexual in nature, but really creepy? In other words, can stalking be considered sexual harassment, even if it is not overtly sexual? If so, can an employer be liable when a customer or some other third party is doing the stalking? In a recent case involving Costco, the Seventh Circuit unequivocally found that it can and was.
Wait, what? If the conduct directed at an employee is sexual in nature or has sexual connotations, doesn't that automatically make it unlawful sexual harassment? Not necessarily.
With the ever increasing coverage and commentary regarding sexual harassment issues (even Speaker Mike Madigan's office recently) there have been two (2) very interesting developments in the arena of sexual harassment/sexual abuse that Employers should be aware of.
As we open the book on Calendar 2018, there are various concerns for Employers. Obviously, the recent passage of a major overhaul of the United States Tax Code will present many opportunities to Employers, both from an accounting perspective (alleged tax savings) and also from a perspective of handling payroll systems. Obviously, this will be a continuing concern in 2018, but there are three (3) other areas that may "bode ill" for Employers.
Unfortunately, no. The answer to stopping sexual harassment problems in a company is more complicated and difficult than just hiring an extremely dedicated and motivated Human Resources Department. Every person in the Company must be fully trained to understand the total unacceptability of sexual harassment (and, at the most basic level, fully understand what sexual harassment is-and how to complain when observing and/or experiencing it).
Over the past few months (and if you go back a little longer, over the past few years), allegations of sexual harassment have permeated the media. Whether it be Bill Cosby, Harvey Weinstein, Bill O'Reilly, Al Franken, or Roy Moore, the media has had a field day in discussing sexual harassment issues. There have been numerous articles written about why "our culture" has allowed this phenomenon to exist. From the extremely high judicial standard in the Courts establishing within the Law proof of sexual harassment, to the fear of individuals to report sexual harassment because of its disdain, potential skepticism and shunning of the alleged victim, to the inability to fully investigate and document claims, all have been analogized as potential problem areas giving rise to the persistence of sexual harassment.
In springtime, it is a very good time for employers to give consideration of how to manage "office romances" and avoid potential liability that may result from them. Remember that in the current and constantly changing work environment, these "office romances" may not just involve the traditional male and female (they may involve two members of the same sex), but all office romances must be treated the same way.