There are two types of unlawful sexual harassment. One is quid pro quo harassment, which occurs when the terms of employment are conditioned upon acquiescence to the sexual harassment. The other type of sexual harassment is referred to as a “hostile environment,” which occurs when the conduct is sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment.
One key to understanding sexual harassment law is this: If an employer has a complaint process, employees should attempt to utilize that process to prevent or remedy sexual harassment. In addition to common sense considerations, an employee’s failure to report or to promptly complain about harassment can provide an employer with a defense to a harassment claim. There are a few instances in which reporting may be unnecessary or when a failure to report will be excused. For example, if a manager is perpetrating the sexual harassment and a “tangible employment action” has been taken against the employee (such as a demotion or firing), then the employer may not be able to defend on the grounds that the employee failed to complain or to report the harassment. It may also be impossible or futile for an employee to complain. For example, in a very small company there may be no one to turn to when the owner is both the harasser and the sole authority in the company. In some cases, the employee may not have a duty to report when the employer failed to properly advise its employees of the process for reporting harassment.
For advice concerning the proper approach to addressing harassment internally, you should consult with an experienced employment attorney who can provide you with guidance to protect your civil rights.
An Overview of Sexual Harassment Law
For harassment to be illegal, it must be unwelcome. See, e.g., Ellison v. Brady, 924 F.2d 872, 880 n. 13 (9th Cir. 1981) (“If sexual comment or sexual vances are in fact welcomed by the recipient, they [ ] do not constitute sexual harassment.”). Unlawful harassment in the workplace can range from a single, isolated incident (e.g., a sexual assault) to a series of incidents, perhaps minor in isolation, which cumulatively create a hostile work environment.
1. Quid pro quo sexual harassment
“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual . . . .”.
29 C.F.R. § 1604.11(a). Oregon also recognizes quid pro quo as a form of unlawful harassment. See Harris v. Pameco Corporation, 170 Or.App. 164 (2000).
2. “Hostile Environment” Harassment
A hostile work environment claim can be established by a showing that the workplace was “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)). The workplace must be “both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998); Nichols v. Azteca Rest. Enters., 256 F.3d 864, 871-872 (9th Cir. 2001). “In evaluating the objective hostility of a work environment, the factors to be considered include the ‘frequency of discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004) (quoting Nichols, 256 F.3d at 872).
The Oregon Administrative Rules (OAR) similarly define a “hostile environment” as, “Any unwelcome verbal or physical conduct that is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with work performance or creating an intimidating, hostile, or offensive work environment.” OAR 839-005-0010(3)(A). In addition to verbal or physical conduct manifesting sexual harassment, other evidence that often appears in sexual harassment cases includes pornography, offensive music, art, and jokes. Whether conduct will give rise to an actionable claim for sexual harassment is fact specific, and the analysis will center upon whether the behavior is severe and pervasive and whether it interferes with an employee’s ability to do his or her job.
Individual Liability and Vicarious Liability Under Federal and State Law
Under Oregon law, however, individual supervisors or other employees may be liable for aiding and abetting harassment. ORS 659A.030(1)(g): “(1) It is an unlawful employment practice . . . . (g) For any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to do so.”
Although individual supervisors cannot be held liable under federal law, the unlawful harassment of supervisors can give rise to an employer’s vicarious liability even if the employer was not aware of the harassment. In a pair of 1998 U.S. Supreme Court decisions, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the U.S. Supreme Court clarified that employers are always subject to vicarious liability for unlawful harassment by supervisors if the harassment culminates in a tangible employment action (e.g., firing, failure to promote, demotion, undesirable reassignment, or a decision causing a significant change in benefits, compensation, and work assignments).
However, if harassment does not result in a tangible employment action, the employer may be able to avoid liability (or limit damages) by establishing an affirmative Faragher-Ellerth defense. To invoke Faragher-Ellerth, the employer must establish two necessary elements:
That the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and
The complaining employee failed to take advantage of any preventive or corrective opportunities provided by the employer or failed to avoid harm otherwise.
The employer must prove both elements by a preponderance of the evidence. SeeValentine-Almeda v Municipality of Aguadilla, 447 F.3d 85, 99 (1st Cir. 2006) (Faragher-Ellerth defense is not available where there is no evidence that the harassment policy was distributed to employees or that employees were aware of it). The complexity of applying the Faragher-Ellerth defense to real world facts has generated many appellate court opinions since 1998. As mentioned in the Introduction to this article, the availability of this defense to employers is why it is so important for employees to understand their duty to report sexual harassment.
Incidents Outside the Workplace May Also Be Relevant to a Claim of Sexual Harassment
Third Party Harassment
Thus, an employer has a duty to protect its employees from harassment by third parties, including the employer’s customers and even passers-by. For example, in Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998), several male customers harassed a female waitress on a number of occasions. The waitress complained to management, but the employer denied her request to be excused from waiting on these men. After one of the men pulled the waitress’s hair and groped her breasts at the restaurant, a jury found the employer liable and awarded $200,000 to the employee. The Tenth Circuit Court of Appeals upheld the jury verdict, holding that the employer was liable for the hostile environment created by its customers because the employer was aware of the harassment and did nothing about it.
The same principles apply under Oregon law. According to the Oregon BOLI:
“An employer is liable for harassment by a non-employee if the employer knew or should have known of the conduct, unless the employer took immediate and appropriate corrective action. When evaluating a complaint, the Civil Rights Division considers how much control the employer has over the non-employee. For example, an employer is considered to have a great deal of control over an individual who is on the premises to fill a vending machine. An employer can call the vending company and request a different service person, can hire an alternate company, or can even have the machines removed. OAR 839-005-0030(7).”
Interns Are Now Protected from Discrimination and Harassment Under Oregon Law
If you feel that you have experienced unlawful sexual harassment in Oregon, you should immediately contact an employment lawyer to discuss your rights and options.