Bill Cosby, Bill O’Reilly and now Harvey Weinstein have one thing in common: Powerful men in the TV/Movie industry who have been plagued by Sexual harassment scandals. According to the New York Times, Harvey Weinstein, Co-Founder of The Weinstein Company (TWC), on numerous occasions spanning decades, made unwanted sexual advances towards women while offering to advance their acting careers. The narrative holds that at various times, women would be invited up to his luxury hotel room where he would propose a sex-for-stardom quid pro quo, sometimes threatening to ruin their career if rejected. As a consequence, Harvey – arguably, the most powerful man in Hollywood with movies released by Miramax and TWC having received over 300 Oscar nominations over the years – was fired by his own board on October 8, 2017. However, you do not have to be the CEO of a big Hollywood company or even make overt sexual advances towards your employee before being grabbed by the long hand of the law. Sexual harassment laws apply to small businesses both on the federal and state level and even in situations that are not as obvious as setting up shop in a hotel like the Co-Founder of TWC did. The following are 10 keys to understanding sexual harassment:
The Equal Opportunity Employment Commission (EEOC) and The Maryland Fair Employment Practices Act (MD FEPA) prohibits employment discrimination based on sex, marital status, sexual orientation, and unwelcome sexual advances or conduct of a sexual nature which unreasonably interferes with the performance of a person’s job or creates an intimidating, hostile, or offensive work environment. Generally, both Title VII and the substantive portions MD FEPA only cover employers with more than 15 employees. But Maryland courts have held that the statement of purpose in the MD FEPA clarifies that any form of sex discrimination in employment is contrary to Maryland public policy. This provides a legal path to seek recourse from your employer for sex discrimination if you work at a business with less than 15 employees.
There are two types of sexual harassment. The first is “Quid pro quo” harassment (e.g. this Weinstein matter) where a supervisor (or employee in position of power) demands sexual favor in exchange for job benefit. The other is “Hostile work environment” harassment where an employee’s persistent unwelcomed sexual conduct or persistent sexual utterances towards another suffices to interfere with the victim’s job performance by effectively creating a hostile, or intimidating or offensive work atmosphere. This includes unwelcome sexual advances, requests for sexual favors, unnecessary touching, and demeaning, crude or offensive language as well. The harasser does not have to be your superior and may include co-workers, customers, and vendors based on the Respondeat Superior
“Unwelcome” sexual conduct is determined by facts and circumstances specific to the incident based on a reasonableness standard. The employee offended by the conduct must communicate that the conduct is unwelcome. It need not be expressed verbally and can be communicated implicitly by walking away from sexual comments or removing the supervisor’s hand in a case of unlawful touching.
The person who commits the acts is liable individually while the organization (company) that the person works for may be liable for punitive damages depending on the severity of the conduct that led to the sexual harassment.
Sexual harassment claims are not limited to situations where male employees harass female employees; men can claim harassment by female employees. Also, same-sex harassment is illegal, and so Title VII can be violated by males harassing other males and females harassing other females.
You are required to investigate any sexual harassment claim brought to your attention. If an employee complains about sexual harassment by a co-worker or a supervisor, or even a customer, and if you fail to investigate, you can be liable under Title VII.
You can be liable if a supervisor or manager take some adverse action against an employee, such as firing or refusing to promote him or her because he or she refused the supervisor’s sexual advances or by continually making threats of adverse employment actions even without actually taking an adverse action.
Before an employee can file a lawsuit against you in court, he or she must file a sexual harassment complaint with the Equal Employment Opportunity Commission (EEOC), or the Maryland Fair Employment Practices Act (FEPA) if the employee is claiming a violation of a state law. The federal claim must be filed with the EEOC within 300 days of the claimed discrimination or a Maryland state claim within 180 days through Maryland Commission on Human Relations (MCHR). The EEOC or MCHR will investigate the matter, and if it thinks the employee has a valid claim, it will file suit against you on behalf of the employee. If it does not, it will typically give the employee a “right to sue letter,” which authorizes the employee to file a lawsuit against you.
There is no training requirement in Maryland but when deciding a sexual harassment case, MCHR will favorably consider steps employers took to prevent sexual harassment. Suggested steps include; establishing and implementing personnel policies regarding sexual harassers; establishing a complaint process that employees may access if they believe they have experienced sexual harassment; and making staff aware of personnel policies, and training staff to recognize and avoid sexual harassment.
For a victim to be successful, you must be as detail as possible and produce specific facts. File a complaint with your employer when any sexual harassment occurs. You should take advantage of any complaint procedures your employer offers; inform the harasser directly that you want them to stop and will pursue further action if they do not; and keep records of all incidents with names and dates, and keep your supervisor or human resources representative aware of any incidents that you feel constitute sexual harassment.
So, if your small business has employees, it is very critical that you contact an attorney to understand how the laws will treat sexual harassment to adequately protect your small business. On the flip side, if you are a victim of sexual harassment, you will similarly need to contact an attorney to assess the circumstances and viability of your claim.