As the #MeToo movement that defined much of the second half of 2017 by outing prominent figures in business, entertainment, and politics as sexual harassers and abusers moves into its second phase — the new #TimesUp movement — it’s clear that the light being shone on sexual misconduct will not be dimmed any time soon.
For the record, that’s a good thing. Ferreting out the people who use their positions of power to take advantage of others through unwilling advances or worse should not just be a passing fad.
The heightened awareness of the impacts of sexual misconduct in the workplace has prompted a lot of companies to review their harassment policies and procedures, if not take a long, hard look in the mirror about what might have once been considered acceptable behavior.
From a legal perspective, there’s a lot that Wisconsin employers need to be aware of regarding how they respond to sexual harassment claims made by or against employees. Jessica M. Kramer, a partner at Kramer, Elkins & Watt LLC in Madison, specializes in employment law. She says employers should start by familiarizing themselves with the Wisconsin Fair Employment Act (WFEA), which has many similarities to federal fair employment regulations.
WEFA gives employees a right to be free from discrimination on the basis of a membership in any one of a multitude of protected classes — sex and sexual orientation included, explains Kramer. Harassment is one form of discrimination, defined as conduct that is sufficiently severe or pervasive so as to create a hostile work environment. This goes for harassment based on any protected classes, including sex and sexual orientation.
WFEA (Wis. Stat. s. 111.36) specifies:
(b) … permitting sexual harassment to have the purpose or effect of substantiallyinterfering with an employee’s work performance or of creating an intimidating,hostile or offensive work environment. … [S]ubstantial interference with anemployee’s work performance or creation of an intimidating, hostile, or offensivework environment is established when the conduct is such that a reasonableperson under the same circumstances as the employee would consider the conductsufficiently severe or pervasive to interfere substantially with the person’s workperformance or to create an intimidating, hostile, or offensive work environment.
However, the initial harassment is not usually enough to attach liability to the employer, notes Kramer. “It is the permitting of the conduct, and what happens thereafter, that turns it into a liability concern for the employer.”
There are generally three ways that an employer could find itself in trouble following sexual harassment of one employee by another employee:
- The employer knows about the harassment and fails to do anything to correct or stop the problem, leading to a hostile work environment for the victim of the harassment.
- The harasser is a supervisor of the victim, and the sexual harassment alters the conditions of the victim’s employment. In the classic case, the victim only gets promoted if she acquiesces to sexual advances of her boss. In other cases, it could be more subtle, where hours of work or types of projects may hinge on whether the victim resists sexual advances or not.
- The employer takes adverse action against the victim after becoming aware of the harassment. This is retaliation. The most glaring form of retaliation is termination of the accuser following a complaint of harassment. But this, too, can be subtler — any discipline of the accuser or change in the terms or conditions of employment following harassment could be considered retaliation. In Wisconsin, even if the employer had another basis for the changes, the WFEA allows proof of discriminatory conduct (retaliation) under a “mixed motive” test. In other words, if the harassment complaint was one of even several reasons for the adverse decision or action against the accusing employee, it could violate the WFEA.
Criminal conduct
An employer who finds itself on the receiving end of a claim of sexual harassment under the WFEA could end up being liable for back pay, in the event the employee was terminated, not promoted, or felt forced to quit due to the harassment, as well as reinstatement of the employee or front pay in lieu of reinstatement, notes Kramer.
Under Wisconsin law, front pay is limited to 1,000 hours (about six months of pay), but under federal law there is no such limitation. Under federal law, punitive damages may also be available to a successful plaintiff who has sued his or her employer for sex discrimination under Title VII of the Civil Rights Act of 1964. Additionally, the employer may have to pay the employee’s attorney fees, which often can be as much or more as the value of the underlying claim.
Finally, the Department of Workforce Development can order an employer to make changes to its workplace policies or procedures or to provide certain training.
“Perhaps most significant though is the public relations aspect — once an accusation comes out, the toothpaste cannot be put back into the tube,” comments Kramer. “Even if public image is not important, employee morale can really be impacted if word gets out — and it usually does. As we have seen with many of the high-profile cases, other victims feel empowered to come forward, creating a domino effect. If an employer had a bad apple manager who has been harassing people for years, unbeknownst to the employer, and one victim makes a claim, it could quickly go downhill from there.”
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Beyond the legal ramifications against an employer or company, there’s the legal fallout for the accused harasser to consider.
Dave Makovec, a criminal defense attorney with the Makovec Law Office in Madison, notes one potential criminal charge is defamation, which Wisconsin considers to be any communication to a third party “which exposes the other to hatred, contempt, ridicule, degradation, or disgrace in society, or injury in the other’s business or occupation.” Stories abound about rumors involving sexual activity spread by co-workers, says Makovec, which neatly fits into the category of defamation, a class A misdemeanor, subjecting the offender to potential penalties up to nine months in the county jail and/or up to $10,000 in fines.
Lewd and lascivious behavior is another topic that may arise in the workplace, which involves either an act of sexual gratification engaged in in the presence of others, or more commonly the public and indecent exposure of one’s genitals or pubic area. “Public” here has been construed by the Wisconsin Supreme Court to include situations in which the conduct assaults the sensibilities of unwilling adults, so an abuser here cannot hide behind the relative privacy of a closed office door if he or she is exposing genitalia to unwilling adults, Makovec says. Like defamation, lewd and lascivious behavior is a class A misdemeanor, with the same penalties.
Sexual assault ranges from a class A misdemeanor all the way up to a class B felony, which can lead to imprisonment up to 60 years, according to Makovec. Fourth-degree sexual assault, the least serious and most common offense, entails sexual contact without consent of the person contacted, where sexual contact can be touching either through clothing or direct, for the purpose of sexually degrading or humiliating the victim, or arousing or gratifying the offender. Sexual contact also includes intentionally touching the victim’s “intimate parts” with any body part or object, regardless of the purpose or desired effect, so long as consent is lacking.
Third-degree sexual assault is closest to the commonly accepted understanding of sexual assault, involving non-consensual sexual intercourse, which includes oral, anal, or vaginal sex, or the vaginal or anal insertion of any object or body part. Third-degree sexual assault is a class G felony, which can lead to up to 10 years in prison and a $25,000 fine.
“Sentencing judges can order that a defendant pay restitution for any damages, including the cost of any medical or related professional services, occupational therapy and rehabilitation, and lost income,” says Makovec. “Lost income, in particular, can be awarded either for a victim who was, for example, terminated as a result of being victimized by such a crime, or who quit in order to escape such treatment.”
For part 2 of this look at workplace sexual harassment, click here.
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