COUNSELOR’S CORNER What a year! We have all been focused on surviving outside forces that threaten us, such as manufacturers’ demands, data breaches, and ongoing consumer cases. However, we should never forget that one of the legal exposures to dealers comes from within, the employees. While the topics could be wide-ranging, let’s just talk about one: preventing sexual harassment. What can dealers do to prevent sexual harassment lawsuits from occurring within the workplace, and, should a claim arise, how can they properly handle claims of sexual harassment brought by employees? Generally, sexual harassment is defined as “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.” These requests constitute sexual harassment when submission to such conduct is made a term or condition of employment; submission to or rejection of such conduct is used as a basis for employment decisions that affect the individual; or when the acts have the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile or offensive working environment. Sexual harassment claims are categorized into two types of claims. The first is quid pro quo sexual harassment, in which a supervisor conditions an employment benefit or continued employment on the employee’s acquiescence in sexual behavior. Strict liability for the employer is associated with quid pro quo sexual harassment if a “tangible employment action” has been taken against the employee by a manager/supervisor. Tangible employment action means “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” If an employee does not allege that a tangible employment action took place, the employer can perhaps avoid vicarious liability if it can show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and, that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” The second type of sexual harassment liability is “hostile work environment.” This is by far the most common type of claim and is factually driven. Sexual jokes, suggestive comments, sexually derogatory comments or cartoons used by either management or any other individual entering the business environment can create a “hostile work environment.” It is very important to understand that the court’s focus is on the work environment and inappropriate actions, from any source, can create a “hostile work environment.” This can be extremely difficult to control when the source comes from the outside, such as vendors and even customers. Contrary to general understanding, sexual harassment based upon a hostile work environment claim is a term of art. A manager or employee asking someone out for a date or making a one-time offensive remark How Employers Can Protect Themselves from Sexual Harassment Lawsuits Johnnie Brown, Esq. Pullin, Fowler, Flanagan, Brown & Poe PLLC WVADA NEWS 18
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