A Sometimes Fine Line
By MARYLOU FABBO, Esq.
Make no mistake. Subjecting an employee to sexual harassment in the workplace, at a company-sponsored event, or on a business trip is unacceptable and should be punished.
MeToo has had a strong, positive impact on encouraging victims to come forward with valid claims that had been unreported or overlooked. Everyone who complains of sexual harassment should be heard, but should everyone be believed? Most people — men and women — are not sexual abusers, and yet most individuals would say they have experienced some form of sexual misconduct. Most also would agree that some sexual behavior, such as grabbing a co-worker’s breast, exposing oneself to another employee, or telling an employee that he or she will get a promotion if he or she sleeps with the boss are clear-cut cases of sexual harassment.
Still, even if sexual comments or behaviors are inappropriate for the workplace, not everything of a sexual nature rises to the level of illegal sexual harassment under the law. This leaves the door open to unfounded and/or, in some cases, intentionally false claims, which can have a damaging impact on company image and the accused person’s professional and personal life.
Sexual Harassment Defined
Title VII and Massachusetts law prohibit sex discrimination in the workplace, and sexual harassment is a form of sex discrimination. The harasser and the victim of sexual harassment can be the same or opposite gender and have the same or different sexual orientations.
Although this article addresses sexual harassment in the workplace, sexual harassment is also prohibited in places of public accommodation, educational facilities, and housing.
There are two types of sexual harassment: ‘quid pro quo’ harassment and ‘hostile work environment’ harassment. Quid pro quo harassment includes sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when a term of employment or employment decision depends on whether an employee accepts or rejects those advances.
Many of the accusations asserted against producer Harvey Weinstein fall into the quid pro quo category. Actors have come forward stating that Weinstein promised them career advances in exchange for a positive response to his sexual advances; they also have stated that Weinstein failed to help them out if they chose not to meet his sexual demands. That’s unambiguous quid pro quo harassment.
In Massachusetts, employers are strictly liable for quid pro quo harassment, which means the business is on the hook for damages even if it did not know about the harassment.
The other type of sexual harassment is hostile work environment sexual harassment. Under Massachusetts law, illegal sexual harassment occurs when “requests for sexual favors and other verbal or physical conduct of a sexual nature unreasonably interferes with an individual’s work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment.”
Complaints about Matt Lauer and Charlie Rose’s actions fall into the sexually hostile work environment category. Lauer is accused of exposing himself to staff, and the accusations against Rose included making lewd phone calls and groping women’s breasts. In both cases, the individuals’ employers have been accused of knowing about the harassment and doing little to stop it.
Subjectively and Objectively Offensive
An employee who is offended by sexual behavior may file a claim of harassment with the Mass. Commission Against Discrimination (MCAD), believing that the actions were illegal simply because they were of a sexual nature.
However, to constitute illegal sexual harassment in the workplace, the behavior must be offensive both to the recipient and the general public. Ask yourself this question: if an employee shows co-workers vacation pictures on his phone that include friends in bikinis, is that sexual harassment? What about the long-term manager who refers to women as ‘girls,’ gives hugs occasionally, and makes jokes about the lack of sex in his long-term marriage?
Some may find those comments and actions offensive, and others may not. Is the manager just ‘old school’? If an employee subjectively perceives the behavior as hostile, intimidating, humiliating, or offensive, then the conduct may constitute sexual harassment. But that’s not enough — the question becomes whether a reasonable person in the employee’s position would find the conduct offensive.
Conduct of a sexual nature also must be unwelcome in order to constitute illegal sexual harassment, but it is almost impossible to be absolutely sure whether the conduct is welcome or unwelcome. The fact that an employee appears to be a willing participant in sexual discussions about weekend conquests may suggest that the employee was not opposed to the sexual discussions by the water cooler on Monday mornings. Yet, the employee may have actually been cringing on the inside.
Under the law, even if an employee makes sexual comments or jokes, or engages in sexual conduct, those actions do not automatically mean that all behavior is welcome. A disgruntled employee who appeared to be a willing participant may later claim that behavior that was welcome was in fact unwelcome.
Nimrod Reitman, a former NYU graduate student, accused his school adviser, Avita Ronell, of sexually harassing him over a three-year period. He claimed that she referred to him in e-mails by names such as “my most adored one” and “sweet cuddly baby,” and kissed and touched him repeatedly and required him to lie in her bed, among other things. Ronell did not deny the behavior but denied the harassment and claimed that the behavior had been welcomed.
While that case doesn’t arise in the employment context, it provides an example of one reason employers should implement zero-tolerance policies when it comes to sexual banter in the workplace. What may have been considered welcome sexual commentary or behavior may have actually have been unwelcome and could subject them to a lawsuit.
False Accusations of Sexual Harassment
Why would one make a false accusation of having been sexually harassed at work? It cannot be disputed that some people fabricate claims of sexual harassment in the workplace because alleged victims have admitted to making up allegations against co-workers or management for many different reasons.
In some cases, sexual-harassment claims may be made to ward off terminations because employers are fearful of being accused of illegal retaliation if they take (warranted) disciplinary action after an employee has come forward with a sexual-harassment complaint. Disgruntled employees have been found to have made false accusations against someone they believe is responsible for an adverse personnel action the employee received, such as a demotion or termination from employment.
Employees have admitted that they have intentionally made sexual-harassment complaints against co-workers for vindictive reasons or for attention.
Unfortunately, it is often difficult to determine whether specific allegations are true or false, as there usually are no witnesses or hard evidence. Because of this, businesses may overreact or react harshly without having all of the facts.
Nev Shulman, star of MTV’s Catfish, was accused of sexual assault. He denied the claims, but the show was suspended anyway. Upon a later investigation, the claims were deemed not credible, and the show was reinstated. A Sacred Heart University student falsely reported having been raped by two school football players and has since faced criminal charges. The leader of the New York City Ballet was accused of sexual harassment and retired. He was later cleared of any wrongdoing.
Collateral damage follows baseless accusations of sexual harassment. Valid harassment claims are devalued and may be looked upon skeptically. When it becomes known that an accusation was false, it raises the possibility in individual’s minds that the next allegation of a similar nature may also not be credible.
Being falsely accused of sexual harassment is also a downfall to the accused’s career. Prior to having their names cleared, alleged harassers may quit or be required to resign, and they sometimes remain under suspicion even after the complaint is found to have been fabricated. The fact that a sexual harassment lawsuit has been filed against a company may be covered in the media, but when, years later, it is dismissed by the court before it gets to the jury stage because the case is without factual support, that information often is not made available to the public — perhaps forever leaving a bad mark on the employer in the eyes of its customers as well as employees.
Marylou Fabbo is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. She specializes in employment litigation, immigration, wage-and-hour compliance, and leaves of absence. Fabbo devotes much of her practice to defending employers in state and federal courts and administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, and compliance; (413) 737-4753; firstname.lastname@example.org