This may sound like a routine matter, but a recent case has strengthened the position of women at work, reinforcing that all workers – including temps – who are subjected to sexual harassment by colleagues or supervisors are protected.
Title VII prohibits discrimination on the basis of sex and other attributes like color, religion, ethnicity and national origin which are an accident of birth rather than choice. Though Title VII applies to employers with 15 or more employees, states and municipalities have their own laws against discrimination and harassment which expand the liability of companies who fail to eliminate workplace harassment. The law protects against retaliation when workers oppose unlawful employment practices or participate in a formal process to investigate and address harassment claims.
In a precedent-setting ruling governing such a case of harassment, EEOC v. New Breed Logistics; Sixth Circuit (covering Ohio, Michigan, Tennessee and Kentucky) has recently ruled that an employee’s action in telling a supervisor to ‘stop’ the behavior which constituted the harassment is a protected activity under Title VII. This ruling was passed with regard to three women – two company employees and one temporary worker – who were terminated after they asked their supervisor to stop sexual comments and inappropriate physical contact. The company argued that, since the workers directed their complaint to the individual that was doing the harassing, they were not engaged in “protected activity” associated with filing a complaint or participating in its investigation. The court wasn’t buying it!
The case also has important implications for treatment of temporary workers. It established that a temporary employee has the same rights of title VII protection as a permanent employee. The company had not included its temporary employees when distributing its anti-harassment literature.
Supervisors are expected to uphold the rights of the people working under their direction, and misbehavior from them could cost an organization dearly. This makes it imperative for businesses to train supervisors on their obligations. As importantly, companies must consider, “who is watching the watchers?”
A supervisor who threatens to demote or penalize someone who rejects their personal advances is definitely considered as harassing that worker. Further, the supervisor can be held liable if failing to take appropriate action when informed of potential sexual harassment committed by a subordinate or even by a co-worker. In the end, the task of containing such behavior falls on the company itself, with everyone in the supervisory chain personally and collectively liable. It is important to note that such harassment is illegal whether it happens between individuals of the same sex or opposite.
All harassment may not be actionable. How can a person prove that the work environment is hostile in subtle and insidious ways? The harassment could manifest in the form of rejection, exclusion, ridicule, slights, and unfair treatment or just through indifference. In an earlier blog, we spoke about Ellen Pao, who failed to demonstrate that her employer penalized and eventually dismissed her for complaining about gender imbalance. As stressed in last week’s blog, ‘Gender Diversity is Good for the Bottom Line’, the answer lies in increased education, more women in visible senior positions, and men who have the courage to serve as proactive sponsors of gender equality in their companies. If positive steps are not taken, the day is not far away before another precedent-setting case comes along to attempt to set matters right. Do you agree?
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