Avoiding Sexual Harassment Claims

Countless American companies have already faced claims of sexual harassment; countless others will face such claims in the near future. As the agencies who receive and investigate these charges have recently reported, claims of sexual harassment have increased dramatically and make up, in some jurisdictions, the biggest portion of new case filings. Such claims are often expensive to resolve and, while pending, can have a debilitating affect on company management and work relationships. Sometimes the negative effects on the workplace far outlast the dispute itself, and the cost of litigation may prove to be modest compared to the business costs of a real harassment problem. When harassment occurs in the workplace, employee morale and productivity will certainly diminish, managers will be distracted from dollar-producing functions, and in severe situations, company performance and profitability may decline.

High technology companies are no exception to this trend. Long hours, frequent business travel and pressure-cooker working conditions combine to create an environment in which companies must be eternally vigilant in order to avoid the business and legal consequences of sexual harassment claims. Not surprisingly, wise and responsible employers are taking precautionary measures.

The first step in an effective plan of prevention is to understand what constitutes sexual harassment and the scope of the employer's responsibility to prevent it. The following commonly asked questions, and their answers, are illustrative:

Does sexual harassment occur only when the victim has experienced unwanted physical contact or sexual advances? No. The United States Supreme Court and the Equal Employment Opportunity Commission have recognized that sexual harassment occurs in two ways: "harassment that involves the conditioning of concrete employment benefits on sexual favors, and harassment that, while not affecting economic benefits, creates a hostile or offensive working environment." Accordingly, even where there is no claim or evidence of "quid pro quo" harassment or unwanted touching, an employee can nonetheless prove harassment.

Is all conduct of a sexual nature in the workplace unlawful? No. The touchstone of whether harassment has occurred is whether the challenged conduct is unwelcome. In a hostile environment type claim, this means that the victim must demonstrate that a reasonable person would find the working environment hostile and abusive, and...