From Hollywood to Capitol Hill, high-profile allegations of sexual misconduct continue to make national headlines and spawn resignations, public apologies and denials. The recent scandals also have prompted employers and employees to rethink their office behavior in terms of what is appropriate and what constitutes harassment.
So what is considered unlawful in Nevada, and what can business leaders and employees do to protect themselves?
“In Nevada and in federal law, sexual harassment becomes unlawful and recoverable when it is subjectively and objectively severe and persuasive,” said attorney Christian Gabroy of Gabroy Law Offices in Henderson. “This can be difficult to prove, especially if the instances are far apart in time, or an act of harassment occurs just once.”
Under the Nevada Fair Employment Practices Act (FEPA), sexual harassment is considered a form of sex discrimination that violates Nevada state law and Title VII of the Civil Rights Act of 1964, according to attorney Nicholas Wooldridge of LV Criminal Defense.
What constitutes unlawful conduct?
According to guidelines put forth by the U.S. Equal Employment Opportunity Commission, conduct is considered unlawful if it creates a work environment that would be construed as intimidating, hostile or offensive to reasonable people.
Under these parameters, petty slights, annoyances and isolated incidents (unless extremely serious) will not rise to the level of illegality.
So what constitutes offensive conduct? While some behaviors are obvious — such as groping a woman’s breasts or a man’s rear-end, or rape — others might be murkier. Is it OK to give a coworker a compliment on a new suit or hairstyle? How about a congratulatory hug after a promotion or a job well done?
“Everybody has a different comfort zone, and some work environments are more playful and tolerant of certain interactions, so you need to know where you are in conducting yourself,” said attorney Paola Armeni of Gentile, Cristalli, Miller, Armeni, Savarese. “If someone puts their hand on my shoulder, should they be criminally charged? Battery is really any unwanted touching, and can be interpreted very loosely,” she added. “In today’s climate, everybody should be on their best behavior, and this is going to start changing how men behave.”
Here are a few rules of thumb from the EEOC for employers and employees regarding what constitutes offensive behavior:
• Unwelcome sexual advances
• Requests for sexual favors
• Offensive jokes, slurs, epithets or name-calling
• Physical assaults or threats
• Intimidation, ridicule or mockery
• Offensive objects or pictures
“Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment,” Wooldridge said.
The most effective weapon against harassment is prevention, he said. For employers to avoid potential liability stemming from sexual harassment as well as promote a safe work environment, it is crucial to establish a clear-cut zero-tolerance anti-harassment policy.
“If your company hasn’t come to terms with the potential for workplace harassment, this should become an immediate human resources priority,” Woolridge said. “Business leaders have an obligation to enforce a culture where managers and employees behave professionally at all times. In such a culture, demeaning or intimidating actions or offensive ‘humor’ have no place, and those in charge assume the responsibility of ensuring a work environment free of harassment.”
Companies should have a clear handbook (or handbook entry) to outline their anti-harassment and anti-discrimination policies, as well as precise reporting procedures in place, attorney Mary Chapman of Las Vegas says.
“Employees must notify HR and file a complaint in writing that includes specific actions that were taken and what protected class the offensive conduct is based on,” she said, adding that protected classes include sex, race, religion, gender identity and sexual orientation. “Complaints then need to be investigated and some type of discipline taken.”
Consequences are of paramount importance, says attorney Paola Armeni of Gentile, Cristalli, Miller, Armeni, Savarese.
“It’s important to give people a lifeline to be able to report the harassment, and then, after it is reported, action must be taken,” she said. “A lot of times, employers just talk about it, and it’s a smoke screen. It’s also important for employees to report harassment promptly to their supervisor or human resources or, in some cases, the police.”
Ann McGinley, a professor at UNLV’s William S. Boyd School of Law, says employers also must let employees know that there cannot be any behavior interpreted as retaliation after a complaint is filed.
“Retaliation is illegal even if the underlying behavior is not sufficiently severe or pervasive to create a hostile work environment,” McGinley said. “If the victim believes in reasonable good faith that she is the victim of illegal harassment, and the employer retaliates against her, she can pursue her claim.
“Employers are warned never to retaliate after an employee files a charge or a suit or complains about harassment,” she added. “In fact, if the person who complains is fired soon after the filing or complaint, that may be sufficient to prove retaliation.”
Corporate training and sensitivity programs can be helpful tools to nip misconduct in the bud. But their effectiveness may be based on how seriously the employer takes harassment and communicates the lack of tolerance for bad behavior and the need for respect among employees.
“It’s unclear how effective corporate training programs are,” Gabroy said. “Even if an employer has the best corporate-training programs on harassment, a business may still be liable for harassment if the business was aware, or should have been aware, of the harassment. From an employee attorney’s perspective, it appears that the greater focus for many large companies is merely to limit legal liability.”
Any workplace harassment policy is only as effective as the system in place to enforce it, says Daniele Dreitzer, executive director of the Rape Crisis Center
“Having a policy in a book on a shelf that people don’t understand, won’t enforce or don’t respect is just meaningless words on paper,” Dreitzer said. “But it appears that many companies/organizations are taking allegations much more seriously and demonstrating more support for those coming forward.
“Hopefully, if this movement continues in the direction it has taken over the past few weeks, the unfettered power of certain people — and particularly certain men — will be kept within an appropriate professional realm that holds people accountable for inappropriate behavior and abuse of power. At the same time, we hope the victim blaming and shaming that has gone on for so long will stop.”