Harassment in the Workplace in Colorado
Sexual Harassment in the Workplace
Sexual harassment in the workplace is a form of discrimination prohibited by Title VII of the Civil Rights Act of 1964 and the Colorado Civil Rights Act. Title VII classifies sexual harassment claims into two categories: “Quid Pro Quo” and “Hostile Work Environment.” See EEOC-Guidance-Sexual-Harassment-Title VII.
Quid Pro Quo sexual harassment takes place when a supervisor or someone with authority over a particular job demands sexual favors in exchange for his/her assistance in hiring, promoting, or retaining an individual, or for obtaining some other tangible job benefit. When this person with authority, explicitly or implicitly conditions a job or a job benefit (or agrees to refrain from causing a job detriment) in return for a person’s acceptance of sexual conduct, this constitutes Quid Pro Quo sexual harassment if the conduct was unwelcome. The evidence of the conduct being unwelcome can be established by showing emotional distress; deteriorating job performance; avoidance of the harasser by the employee; the reporting of the unwelcome conduct to co-workers, friends, family, or other company representatives; or similar types of conduct indicating that the person is experiencing unwelcome employer harassment.
Hostile work environment sexual harassment includes any unwelcome remarks, conduct, or behavior regarding sex, gender, or sexual orientation. Hostile work environment sexual harassment is not limited to making inappropriate sexual or romantic overtures. Instead, sexual harassment includes any unwelcome verbal or physical conduct that creates a hostile environment in the workplace, such as:
- Sharing sexually inappropriate images or videos, such as pornography, with co-workers
- Sending sexually suggestive letters, notes, or e-mails
- Displaying inappropriate sexual images or posters in the workplace
- Telling sexually oriented jokes, or sharing sexual anecdotes
- Making sexual gestures
- Staring in a sexually suggestive, lewd or offensive manner, or whistling
- Making sexual comments about appearance, clothing, or body parts
- Inappropriate touching, including pinching, patting, rubbing, or purposefully brushing up against another person
- Asking sexual questions, such as questions about someone’s sexual history or their sexual orientation
- Making offensive comments about someone’s sexual orientation or gender identity
These are just a few limited examples of sexual harassment. Any action that creates a sexual hostile environment is considered sexual harassment, and the victim of the harassment may not be just the target of the offense, but anyone who is affected by the inappropriate behavior.
Non-Sexual Harassment in the Workplace
Harassment in the workplace is not limited to sexual harassment. Other actions regarding religion, race, age, gender, disability, or skin color, for example, can also be considered harassment if the actions create a hostile work environment for another employee. See EEOC-Harassment-Race-Color-Religion-Title VII
Instances of workplace harassment or employer harassment include discrimination such as:
- Making negative comments about an employee’s personal religious beliefs, or trying to convert them to a certain religious ideology
- Using racist slang, phrases, or nicknames
- Making remarks about an individual’s skin color or other ethnic traits
- Displaying racist drawings, or posters that might be offensive to a particular group
- Making offensive gestures
- Making offensive reference to an individual’s mental or physical disability
- Sharing inappropriate or offensive images, videos, e-mails, letters, or notes
- Offensively talking about negative racial, ethnic, or religious stereotypes
- Making derogatory age-related comments
- Wearing clothing that could be offensive to a particular ethnic group
Non-sexual harassment isn’t limited to these examples. Non-sexual harassment includes any comment, action, or type of behavior that is threatening, insulting, intimidating or discriminatory and upsets the workplace environment.
Employer Liability for Workplace Harassment
The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor’s harassment at work or elsewhere results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.
Proactive Steps to Minimize Potential Liability for Workplace Harassment
Employers should have a written policy prohibiting harassment at work, and should review that policy with employees to communicate the policy and emphasize that any form of harassment is strictly prohibited. A complaint mechanism should be implemented. All claims of sexual harassment should be investigated promptly, fairly and objectively. Human resource personnel, in-house attorneys, and outside attorneys, can be used to investigate claims of harassment at work. If the alleged harasser is a high level executive, it may be a good idea to hire someone from outside the company to conduct the investigation of the employer harassment in order to avoid a claim of a biased investigation, and to avoid putting the subordinate employee in a position of investigating his/her boss. Generally, it is a good idea to have two investigators, one male and one female. The alleged victim should be required to prepare a full and complete written complaint containing all of his/her allegations of harassment along with the date(s) of each incident, what was said, who may have witnessed the incident, etc. The complainant should understand that his/her identity will be disclosed to the alleged harasser except in exceptional circumstances (such as those situations where the safety of the complainant may be at risk). If the alleged harasser fails to cooperate, the investigation should continue with the understanding that a failure to support one’s denial of facts may be considered in evaluating the harasser’s credibility. Investigators should retain full and complete notes of all interviews and should prepare a report which evidences their conclusions that harassment has or has not occurred. The report should be thorough and factual.
If you would like additional information regarding workplace harassment issues, please feel free to contact Baird Quinn’s Colorado workplace harassment lawyers. You may obtain additional information regarding our labor and employment lawyers by clicking on the following link.