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November 20, 2017 Experts Corner

Sexual harassment: What every employer needs to know

Shel Myers

With news out of Hollywood exploding with stories of sexual harassment, pressure is building on Connecticut employers to better understand and enforce the law on these matters. Title VII of the Civil Rights Act of 1964 and the Connecticut Fair Employment Practices Act explicitly prohibit sexual harassment in the workplace.

So what is sexual harassment exactly?

Any unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to such behavior is made a term or condition of an individual's employment, or impacts employment decisions affecting that individual.

Also, any conduct that unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive working environment is considered sexual harassment.

There are really three key elements to the definition of sexual harassment:

• The behavior is unwanted or unwelcome.

• The behavior is sexual or related to the sex or gender of the harassed person.

• The behavior usually occurs in the context of a relationship where one person has more formal or informal power than the other.

There are a number of workplace behaviors that are generally viewed as sexual harassment when they are unwanted. They include:

• Direct or indirect threats calling for unwanted sexual activity.

• Sexual innuendoes or jokes.

• Asking about or commenting on a person's sexual activities.

• Sexist remarks about a person's clothing or body.

• Sexually suggestive sounds or gestures, including sucking noises, winking and throwing kisses.

• Pestering a person for dates or sexual behavior.

• Touching, patting, striking, squeezing, tickling or brushing up against a person.

• Giving a neck or shoulder massage.

• Rating a person's sexual attractiveness.

• Ogling or leering, unwanted leaning over or cornering.

• Spreading sexually explicit rumors.

• Graffiti about a person's sexuality.

• Name calling such as “bitch,” “slut,” “whore.”

• Sexual ridicule.

• Written or oral communications of a sexual nature.

• Pejorative comments about males or females in general.

• Displaying pictures, calendars, cartoons or other materials with sexual content.

• Stalking.

• Attempted or actual sexual assault.

Infractions have consequences for employers

Employers found to have tolerated sexual harassment in their workplace have considerable legal exposure. Remedies available to employees can include a jury trial, reinstatement, back pay, front pay, lost fringe benefits and unlimited compensatory and punitive damages.

We often say that being an employer is not an easy task. But when it comes to matters of sexual harassment, there are preventative measures that can be taken that offer a degree of legal protection while improving the chances that your employees will enjoy a positive work experience.

What's the most important measure an employer should take?

Make sure you have a clear and visible anti-harassment policy and complaint procedure in place at all of your facilities. This solution should include adopting and publishing grievance procedures providing for prompt and equitable resolution of all sex-discrimination complaints.

Your ultimate goal (and best legal protection) should be to create a work environment in which all persons understand, through the policy statements and the actions taken in support of that policy, that sexual harassment will not be tolerated.

Shel Myers is a partner at the labor and employment law firm of Kainen, Escalera & McHale in Hartford.

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