By Kathy Danforth / Published January 2018
Somewhere between teasing and assault lies the unpleasant but headline-grabbing realm of sexual harassment. Though complicated by the breadth of subtleties—or lack thereof—in personal interactions, changes in societal norms, and personal differences, harassing or discriminating against a person because of that person’s sex was banned by the Civil Rights Act of 1964. The Act applies to all employers with more than 15 employees, but state laws will apply to smaller entities and also other types of harassment, so there is not a permissible employment setting for inappropriate behavior.
According to the Equal Employment Opportunity Commission (EEOC), “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when 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.” The harassment does not have to be sexual, however, and can consist of making offensive comments about men in general, for example.
The EEOC further clarifies that the harasser and victim can both be of either sex; the harasser can be a supervisor, agent of the employer, co-worker, or non-employee; a victim can be anyone affected by the offensive conduct; harassment does not have to include economic injury or discharge; and the harasser’s conduct must be unwelcome. The EEOC also states, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal where it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”
Matthew Zifrony, attorney with Tripp Scott Attorneys at Law, observes, “Among other things, sexual harassment occurs when a person in the workplace feels that he or she is being harassed based on gender. A big key is that it is impossible to know the sincerity or sensitivity of different people; a joke to one person could be harassment to another. Sometimes the harassment is not intended, but in most cases, the person believes she is being harassed.”
Jeffrey Rembaum, attorney with Kaye Bender Rembaum, notes, “If someone is creating the impression that a sexual favor must be performed as a condition of continued employment, that is blatant sexual harassment (referred to as quid pro quo). Thankfully, as legal counsel to countless community associations over the past 20 years, it has not been an issue. However, from time to time, allegations of a hostile work environment are brought to my attention.”
“Discrimination in employment on the basis of sex is related to, but is not the exact same issue as, creating a hostile work environment,” though both are covered by the law, points out Ryan Poliakoff, attorney with Backer Aboud Poliakoff & Foelster. “In order to be a hostile work environment, actions would have to be fairly hostile, extreme, and pervasive.”
Donna Berger, attorney with Becker & Poliakoff, notes, “Sometimes people act discourteously or unfa-irly in business, but not everything bad or unfair that happens is a result of a gender bias. That is not to say that there’s not truly sexual harassment that takes place in a workplace or community setting, where someone has an inherent bias against a certain gender or may have an unnatural attachment or obsession with someone. I have yet to be contacted by an association saying that someone is being sexually harassed by a member of the board or community, or a manager or employee. What I have found is general harassment, with someone being verbally abusive in an antagonistic and hostile manner. It has been because of their position or what they are doing, though—not because of who they are.”
However, Zifrony notes, “Times have changed, and political correctness is rampant. There are things that you could say 10 years ago that you aren’t allowed to say at all now. It is a very subjective situation.”
Claims of harassment may involve teasing of a sexual nature. Rembaum shares, “In the case of teasing, there are two common sense tests. First, how does the individual being harassed feel? And second, what would an ordinary, prudent person think if she was there and saw any suggestiveness involved?”
If someone believes she is being harassed, the EEOC encourages the individual to let the harasser know the behavior is unwelcome and must stop. “For companies, there’s not a punishment just because something happened,” advises Zifrony, “but there needs to be a process in place for the person to report the harassment. The individual’s superior and the company have a responsibility to investigate to determine if harassment took place and to take corrective measures.” An investigation would involve talking to both parties, determining what was said and why, and interviewing any witnesses. The EEOC looks at the whole record—the circumstances, the nature of the sexual advances, and the context. A passing slap by a sports coach may have a different message than the same action in an office.
“There are a number of factors that go into determining if harassment exists,” according to Berger. “Who is the harasser, and who is the person being harassed? Is it a superior and subordinate? Is there an age difference, or is there a minor or someone very young involved? How long has it been going on? Is it one comment or a sustained pattern? What words were there, and where? Were there threats or any contact?”
In any case of harassment, Berger says, “There should be swift retribution and punishment to correct it and level the playing field. What we want is a level playing field so everyone knows the rules and has a fair opportunity to succeed. You take other factors that would create an uneven playing field out of the equation.”
After the investigation, a company will be accountable for their handling of the situation. “Corrective measures can include separation of individuals, firing someone, sensitivity training, or other actions,” notes Zifrony. “If the allegation was made, it was determined there was harassment, and the employee committing the harassment was fired, that would serve as a defense for the company. If it is a case of one person’s word against another’s, a company may want to take some measures anyway. It is very important to have procedures to document the investigation and findings. Keeping a record of everything is so important.”
Having policies in place to address sexual harassment is the key to both prevention of the situation and prevention of legal problems for an organization. “If a company has that policy in place, then an allegation of sexual harassment does not mean that a company would be automatically liable if a claim is brought,” Zifrony explains. “But in a lot of instances if the company does not have a process or policy, the allegation may be enough to create the liability because the employee has no recourse.”
“In today’s world, it would be a wise thing to create a policy in advance,” advises Rembaum. “If a problem arises and there is no pol-icy, deal with it head-on and quickly. Then create a policy.”
“For companies with a large number of employees, I recommend an employee handbook prepared by an attorney who specializes in labor law,” notes Berger.
In cases where behavior is not strictly covered by EEOC laws, there can still be a tort for harassment, sexual or otherwise. According to Zifrony, harassment would include “deliberate conduct that is malicious and causes anxiety, distress, or other harm. Harassment restricts the ability to live a free life.”
In addition to a handbook and policy to address sexual harassment and provide a means of recourse to an affected individual, educational seminars for employees can be helpful. And lastly, Zifrony recommends, “Manage people. Keep your eyes and ears open. Pull someone aside and take corrective measures or terminate the individual if needed. Do even more after a complaint. If you knew or should have known of the conduct, you cannot practice ‘willful blindness.’ You can be just as responsible if you intentionally and willfully ignore a situation.
“Like everything else, there are periods when people are more sensitive,” Zifrony notes. “Right now, there is a heightened sensitivity to sexual harassment, and everyone needs to be aware of what society is going through. Be more observant and conscientious of what is said to people. If a male normally goes out one-on-one with a female employee, he may want to instead go in a group. If you’re sharing jokes, make it suitable for a 12-year-old. It behooves everyone to be more conscientious instead of continuing to do the same things and dealing with the consequences.”
Yes, investigating sexual harassment claims can be difficult. Zifrony says, “We see the Harvey Weinstein rule—any time there is a relationship between a male in a higher employment position than the female, it is viewed as harassment. In many cases, it is harassment. However, there is the situation where a subordinate or job applicant uses sexuality to their advantage, which primarily causes unfair bias/economic benefit toward that individual and against the other employees and applicants. And then there are the cases of an affair or relationship, which, while inappropriate, is not harassment. It’s a slippery slope,” Zifrony acknowledges. “How do you make rules protective enough for those truly being harassed without catching those who are just having an affair?”
“Check for coverage under your Employee Practices Liability Insurance,” advises Berger. She also recommends prevention through proper screening protocols. “That’s the best way to go, rather than dealing with the situation after the fact.”
Sexual harassment can bring about injustice, shame, negative publicity, and financial/legal hardship, plus possible additional consequences for a victim. And as the media prove, it will not just “go away” with time. It is well worthwhile to develop awareness, training for prevention, and proper provision for any incidents, both to prevent abuse now and to avoid ongoing reverberations of trouble in the future.
Harassment on the Homefront
In a community association, there are many possible interactions that can be problematic. “We see all types of harassment occur in society, and we see the same kinds of harassment occur in the world of condominiums and homeowner associations,” relates Ryan Poliakoff. “I’ve seen harassment, sexual or otherwise, between one owner and another owner, between owners and employees of the association, or between a manager and subordinates. For example, I’ve seen situations where owners inappropriately touch employees, or a manager sends inappropriate texts to a subordinate.”
Jeffrey Rembaum notes, “I have not seen instances of quid pro quo, but rather what I’ve seen from time to time has been when one person inappropriately bothers another person. It doesn’t happen often, but when it does it is typically a young manager being bothered by a middle-aged or older board member. When it happens, we write a cease and desist letter and make sure the conduct is brought to a stop immediately. The community may be held liable if the manager is being harassed, it’s reported, and no action is taken.”
“Most associations come up a bit short on having written policies,” according to Rembaum. “A sprawling association with 20 employees is more likely to have procedures within the association than an association with a portfolio manager. Even without employees, it is best to create a policy.”
“These days I recommend that each association have a code of conduct for the board,” shares Donna Berger. “This wasn’t borne out of what we’re seeing recently regarding sexual harassment, but because we are living in fairly uncivil times. Today’s boards need to think about a lot of things that boards 10 or 20 years ago did not have to think about, such as email communication and use of technology. The code can also discuss appropriate behavior amongst board members and between board members and employees, owners, residents, and the manager. Boards need to be having this conversation.”
“Typically, neighbor-to-neighbor disputes are a private issue rather than an association issue,” comments Rembaum, “but when discrimination is an issue in an association, the association may have a duty to act, depending on the circumstances. At a minimum, the board should seek an opinion from the association’s legal counsel.”
“I’ve seen complaints about behavior between owners,” recalls Poliakoff, “which ordinarily are not something that an association would get involved in. However, it gets much more complicated if the conduct is occurring on common grounds. If a person using the gym is harassing others using the gym, then that becomes a problem the association may have to address.
“How it is dealt with depends on the behavior—whether it is harassment or a crime. If it’s criminal—assaulting or touching someone, which is essentially assault—call the police. There are statutes dealing with verbal harassment, which is usually fairly extreme. Foul language or calling names is not usually a crime. For criminal issues, the owner must press charges; the association can’t, though I’ve seen cases where the owner was hesitant but wanted the association to act.”
One resident harassing another is not an association problem except within the scope of the association documents. “An association responsibility comes from their documents,” Matthew Zifrony says. “Sometimes documents contain generic language that it is a violation for one resident to harass another resident, so an association may have an obligation to send a letter and follow up.”
Poliakoff notes, “There may be tools in the governing documents that an association can use. A nuisance prohibition is a comparatively weak tool, the problem being that occasional conduct is not usually considered a nuisance. In contrast, a prohibition against illegal activity means that if touching/assault on common property has been reported to the police, the association now has a tool to suspend use rights, levy fines, or ask a judge to issue an order prohibiting further bad conduct. But if something is illegal, it’s also appropriate to pass the buck and call the police. It is not the job of a private corporation to stop illegal activity, though that can provide teeth for an enforcement action if desired.”