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Aspan and Cremin: What you need to know about workplace sexual harassment law

October 22, 2017

By: Molly A. Aspan and J. Patrick Cremin

Tulsa World

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“ME TOO!!!!”

If you are on Facebook or any other social media site, you’ve seen those words repeatedly from women reporting they’ve been sexually harassed (or worse) and are no longer remaining silent. Some of the strongest, brightest women around have posted a “ME TOO” to the surprise and chagrin of their friends and associates. Now many men are also posting — some who have been victimized, others seeking forgiveness for their past boorish behavior.

Harvey Weinstein has unleashed the torrent. His alleged incredibly sexist and predatory behavior has shined a high intensity spotlight on an American dilemma: sexual harassment and assault by men of power over women they feel superior to in the workplace. The assault on women by men in power is suddenly the center of traditional media and social media. Politicians, entertainers, media moguls and CEOs are being outed, in a clamor of battle cries and defiance.

Such actions by people in power place their companies at risk for large verdicts and damning publicity. While contract cases muster little interest and less publicity, a tawdry tale of impropriety by a supervisor or public figure may end up on the front page of this and every other newspaper. The harm to the workforce, the lingering emotional toll on victims, and the stress on familial relationships to the accused are impossible to value, but the cost is prohibitive in all these groups.

“You also don’t want it to lead to a witch hunt atmosphere, a Salem atmosphere, where every guy in an office who winks at a woman is suddenly having to call a lawyer to defend himself. That’s not right either.” So says Woody Allen, who has dealt with his own lurid charges in the past. Ironically, the writer who chronicled Weinstein’s misanthropic acts is Allen’s son, Ronan Farrow of The New Yorker. Allen’s comment sums up the view of many powerful and self-important public figures. Such cavalier attitudes and corresponding behavior often result in costly verdicts and settlements.

So what is sex harassment? Courts have recognized two types of sexual harassment in the workplace.

The first — quid pro quo — occurs when a person with supervisory authority solicits sexual favors by offering workplace benefits or threatening adverse employment actions. The allegations against Weinstein epitomize these cases.

The second — hostile work environment — occurs when a supervisor, co-worker, customer, or vendor engages in offensive conduct that is so severe or pervasive it alters the terms and conditions of employment. The frequency and nature of the offensive conduct are critical factors. The plaintiff must establish she perceived the conduct as hostile and offensive and that any reasonable person in her position would objectively believe the same. In such cases, the plaintiff may not have suffered any monetary loss but can recover for pain and suffering, punitive damages and her attorney’s fees.

In both cases, the offensive conduct and the employer’s failure to stop it can result in significant legal liability. Employers must realize jurors in a sexual harassment cases are captivated by the story. Every courtroom juror can imagine such happening to them, their daughter, wife or mother. No employer wants to be in that spot.

To avoid and successfully defend against such liability, employers must first train employees to recognize sexual harassment when it occurs. The employee handbook should not only prohibit such conduct but also provide a clear procedure for reporting it.