In the wake of the Harvey Weinstein scandal, reports of sexual harassment against celebrities, politicians and businessmen have dominated the media. The fallout from the Weinstein scandal has led to the emergence of the #MeToo movement, which encourages women (and men) to share their experiences of sexual harassment via social media among other platforms.
The #MeToo movement sparked increased attention to sexual harassment in the workplace and even prompted some lawmakers to respond quickly by evaluating current laws and proposing new legislation. With potential changes in the law as a result of the current spotlight on sexual harassment, it's imperative that employers be proactive. Employers will want to:
Sexual harassment in the workplace is not new or uncommon. In a 2006 study, the U.S. Equal Opportunity Commission found that based on the most widely used measure of sexual harassment, 60% of women reported that they had experienced sexual harassment in the workplace - ranging from unwanted sexual attention, sexist behavior, or sexual coercion. Shockingly, though, 90% of workers who said they've experienced sexual harassment stated they never formally reported it.
With the outpouring of support for victims of sexual harassment in today's society and an increased dialogue regarding accusations of sexually inappropriate behavior, employers will begin seeing increased numbers of sexual harassment allegations. But what exactly qualifies as actionable sexual harassment?
There are two types of sexual harassment that qualify as unlawful sexual discrimination under Title VII of the Civil Rights Act of 1964:
In evaluating whether conduct is sufficiently severe or pervasive, courts employ both a subjective and objective standard - that is, both the plaintiff and a reasonable person would find the complained-of conduct as severe or pervasive. Courts consider the totality of the circumstances surrounding the alleged harassment by considering:
The #MeToo movement continues to take social media platforms by storm and is unlikely to go away anytime in the near future. In fact, to date, #MeToo has been used as a hashtag over 12 million times on Twitter and Instagram. Now is the time for employers to evaluate workplace culture and consider whether they need to make changes to current policies and practices or even create new ones.
By: Mia A. Conza
Mia A. Conza is an attorney in the Firm’s Labor and Employment Practice Group. If you have any questions or concerns about this issue or any other matter, please contact Mia directly at 813-223-1099.
Chari R. Feldbum & Victoria A. Lipnic, U.S. Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace (June 2016), https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998).
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67-68 (1986).
Harris v. Forklift Sys., Inc. 510 U.S. 17, 21 (1993).
Id. at 21.