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Sexual Harassment

This page provides an overview of federal and state sexual harassment laws that apply to Washington State local government agencies, including related court decisions and examples of local anti-harassment policies.


Overview

Even though federal and state laws have been in place for several decades, instances of sex discrimination are still occurring in the workplace. Sexual harassment is illegal and no worker should have to tolerate it; it is a form of illegal sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments, employment agencies, labor organizations and the federal government. Workplace sexual harassment is any unwelcome sexual advance or conduct that creates an intimidating, hostile, or offensive working environment.

Municipal liability for the sexual harassment of employees by other employees is a serious issue for local governments, because Supreme Court cases hold that employers may be liable for all actionable sexual harassment by supervisors, regardless of whether the employer was aware of the harassment. The cases also create liability for an employer's failure to create a workplace free of a sexually harassing atmosphere.

According to Title VII of the Civil Rights Act of 1964, sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

  • An employee must submit to the behavior to keep their job or to get a promotion, a good job assignment or some other job benefit; or
  • The behavior unreasonably interferes with work performance or creates an intimidating, hostile or offensive working environment.

See 42 U.S.C. § 2000e-2(a)(1) and 29 C.F.R. § 1604.11(a)(3).

The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces the federal law.


Washington State Law Against Discrimination

Washington State laws against discrimination in employment are contained in Ch. 49.60 RCW. They prohibit sex discrimination in employment, which includes sexual harassment. Under this law, individuals may file a lawsuit in state court or file a complaint with the Washington State Human Rights Commission. RCW 49.60.180 establishes a legal right for an employee to sue an employer for hostile work environment, sexual harassment, quid pro quo sexual harassment, and disparate treatment based upon gender. For more information, see MRSC's page on Discrimination.


Practical Advice for Government Employers

To comply with both state and federal law, local government employers should make it known to all employees that the agency has zero tolerance for sexual harassment in the workplace. Employers need to develop a formal but easily understood policy against sexual harassment with a sensible complaint procedure, and then they must effectively communicate this policy to all employees. Additionally, employers must exercise reasonable care to promptly correct any sexually harassing behavior.

  • Develop a written anti-harassment policy and proactive workplace program and make sure that all employees have a copy of it. To make sure that all employees have received and understood the written policies, ask employees to sign a statement confirming their understanding of the policy, and keep a copy of the signed form in each employee's personnel file.
  • Notify employees of their rights, including how to report incidents of harassment.
  • Establish a clear complaint procedure that establishes a process for handling complaints, investigating and documenting charges, and correcting misconduct. Create an open atmosphere in which complaints can be raised without fear of retaliation.
  • Educate and train managers and supervisors about their responsibilities under the anti-harassment policy.
  • Educate and train all employees regarding responsible behavior in the workplace and appropriate procedures for reporting incidents of harassment.
  • Investigate complaints promptly and thoroughly.
  • Take prompt and effective remedial action.

Examples of Anti-Harassment Policies

Below are examples of anti-harassment policies from various Washington jurisdictions that establish a clear complaint procedure. Most address sexual harassment as a form of discrimination and therefore also include anti-discrimination procedures in their policies. The Kitsap County, Yakima County, and Spokane County examples, as well as the Seattle and Lake Whatcom Water and Sewer District examples are particularly thorough and comprehensive in their descriptions of the process to use if harassment occurs. 

Counties

Cities

Special Purpose Districts


Court Decisions

The court decisions listed below are a selection of the critical cases that have established the reach of sexual discrimination law.


Employer is liable for conduct of supervisors.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) - The Supreme Court ruled that when a supervisor has, in addition to creating a hostile work environment, taken some tangible employment action against the victim (e.g., demotion, undesirable work assignment, or denial of a raise), the employer is automatically liable for the supervisor's conduct. In other hostile environment cases, however, the employer may avoid liability by establishing both prongs of the following affirmative defense: (i) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Burrell v. Star Nursery, Inc., 170 F.3d 951 (1999) - Employer is liable for conduct of supervisors even when they neither knew nor should have known that the misconduct was occurring. However, an employer may not be held liable for the harassing conduct of co-workers unless it was aware (or should have been aware) of the misbehavior.


Men and women are entitled to protection from a sexually abusive work environment.

EEOC v. Prospect Airport Services, 621 F.3d 991 (2010) - Men as well as women are entitled under Title VII to protection from a sexually abusive work environment. Having an employment policy is not enough to avoid liability for hostile work environment harassment. All complaints of harassment should be processed in accordance with your policy including prompt investigation and effective punishment for any instances of harassment that are found to have occurred.


Employer is subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim.

Faragher v. City of Boca Raton, 524 U.S. 775 (1998) - Employer is liable for actionable discrimination caused by a supervisor, but is subject to an affirmative defense looking to the reasonableness of the employer's conduct as well as that of the plaintiff victim. As a result of this decision, women who experience sexual harassment at work must find out whether their employer has a sexual harassment policy or other grievance procedure in place. If employees do not avail themselves of the procedures and their protections, they must be prepared to show evidence that their decision was reasonable. Otherwise, they will be precluded from recovering on a claim of sexual harassment.


School district is liable for teacher's actions.

Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998) - In this case involving teacher-student sexual harassment, the Supreme Court determined that for an educational institution to be liable for damages for sexual harassment under Title IX, an appropriate school official must have had knowledge of the harassment and, in the face of that knowledge, been deliberately indifferent.


Importance of agency's prompt response

Herried v. Pierce County Transp., 90 Wn. App. 468 (1998) - Employee could not prove that she was the subject of gender-based discrimination, or that Pierce Transit was negligent in supervising an employee who allegedly discriminated. This case demonstrates how important it is for an agency to promptly and thoroughly respond to employee complaints of sexual harassment.


Employer may be held vicariously liable for hostile environment and sexual harassment created in the workplace by nonemployees.

Lockard v. Pizza Hut Inc., 162 F.3d 1062 (1998) - An employer may be held vicariously liable under Title VII of the 1964 Civil Rights Act for hostile environment and sexual harassment created in the workplace by nonemployees, if it knows or should know of harassing conduct and fails to take prompt and appropriate corrective action. "An employer who condones or tolerates the creation of such an environment should be held liable regardless of whether the environment was created by a co-employee or a nonemployee, since the employer ultimately controls the conditions of the work environment" (at 1073-1074).


Not all offensive acts constitute sexual harassment.

MacDonald v. Korum Ford, 80 Wn. App. 877, 912 P.2d 1052 (1996) - An isolated indiscretion, although offensive and inappropriate, cannot support a claim of hostile work environment sexual discrimination. A claim of quid pro quo sexual harassment is not established unless there is evidence that the perpetrator of the unwelcome act sought sexual consideration from the victim.


Same-sex harassment

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) - Workplace harassment can violate Title VII's prohibition against "discriminat[ion] . . . because of . . . sex," when the harasser and the harassed employee are of the same sex.


Disparate treatment based on gender

Schonauer v. DCR Entertainment, 79 Wn. App. 808 (1995) - RCW 49.60.180 (2),(3) provides that it is an unfair practice for any employer to discharge or otherwise "discriminate against any person in compensation or in other terms or conditions of employment because of . . . sex." It makes actionable hostile work environment sexual harassment and quid pro quo sexual harassment. Even where sexual harassment is not involved, it makes actionable disparate treatment based on gender.


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Last Modified: April 19, 2018