Recent media coverage of the #MeToo movement has brought a heightened awareness of sexual harassment in the workplace. As a result, employers may be more vulnerable to claims of sexual harassment by both their employees and the Equal Employment Opportunity Commission (EEOC).
According to an October 2018 press release from the EEOC, charges filed with the EEOC alleging sexual harassment went up by more than 12 percent in 2018 over the prior year. In addition, there was a 50 percent increase in the number of lawsuits filed by the EEOC against employers alleging sexual harassment compared to 2017.
In light of this news, now is the best time to review internal policies and practices to ensure employers and their employees understand the kinds of behavior that can create claims of sexual harassment.
In general, sexual harassment is any conduct of a sexual nature or based on a person’s gender when submission to or rejection of the conduct affects an individual’s employment; unreasonably interferes with an individual’s work performance; or creates an intimidating, hostile, or offensive work environment.
The Circuit Court covering North Carolina, South Carolina, Maryland, Virginia, and West Virginia recently expanded the scope of the kind of conduct that can be considered to form the basis of sexual harassment claims. Historically, courts were hesitant to treat sexual rumors as a form of Title VII discrimination. However, in February, the 4th US Circuit Court of Appeals held that baseless rumors that a female employee had a sexual relationship with her supervisor could support a sexual harassment claim.
The female employee’s male coworkers spread a rumor that she slept with her male boss to obtain a promotion. A manager participated in spreading the rumor, discussed it at a staff meeting with other employees, and blamed the employee for “bringing the situation into the workplace” when she tried to discuss her concerns about the rumor. He also told the female employee that “he could no longer recommend her for promotions or higher-level tasks because of the rumor.”
The court below granted the employer’s motion to dismiss and held that the “complaint as to the establishment and circulation of this rumor is not based upon her gender, but rather based upon her alleged conduct.” The 4th Circuit reversed the lower court’s opinion and held that the complaint “plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as ‘sluts’ or worse, prostitutes selling their bodies for gain.”
Regular sexual harassment training is important in any workplace. Typical online anti-harassment training is often ineffective. Sexual harassment training should be live and interactive whenever feasible and should be tailored to the individual workplace.
In addition, training should identify the behaviors that the employer believes are unacceptable in the workplace and communicate a clear complaint procedure. It is most effective to train supervisors and employees separately, so that supervisors can learn to identify and address sexual harassment. Separate training also fosters a more open discussion about specific behaviors that are actually occurring in the workplace.
Whether it is part of new sexual harassment training or updating an annual program, employers should specifically discuss how to deal with sexual rumors in the workplace in light of this decision. A supervisor’s initial reaction to workplace gossip may be to stay out of it and avoid getting involved in conversations about employees’ personal lives. While that approach may have been acceptable in the past, employers should train employees to address rumors that an employee “slept their way up the corporate ladder” under the company’s sexual harassment policy. That means reporting rumors to HR and taking affirmative steps to prevent them from spreading. Once they become aware of a sexual rumor about an employee, HR should immediately investigate to identify the source and scope of the rumor and discipline the employees involved.
In light of this expanded view of what constitutes sexual harassment and the recent climate surrounding these types of claims, it is important that employers conduct regular training and keep an ongoing open dialogue with their employees about sexual harassment.
Kate Dewberry is an associate attorney at Poyner Spruill LLP in Raleigh, North Carolina.
This article is for informational purposes only and does not constitute legal advice.