Sexual harassment is no laughing matter!
You should watch your mouth and strengthen staff training.
Lately, sexual assault and sexual harassment in the workplace became one of the most controversial topics. Sexual assaults are relatively clear-cut cases where certain actions were taken without consent, but for sexual harassment, there is a wide range of actions that can constitute wrongdoing.
If sexual assault or harassment occurred at the workplace between employees and their supervisors, store owner and customers, or employees and their coworkers, the business owner is not free from responsibility. If an employee reports or complains about certain actions, a lack of response from the company can result in liability. Sexual assault or harassment does happen in beauty supplies. Let’s find out the state and federal laws about them, real-life examples, and language and actions to watch out.
Last year, a male customer at a beauty supply in Rochester Hills, Michigan was arrested for suspicion of sexual assault after making physical contact with employees.
The suspect asked for a bottle of perfume that was displayed on the bottom shelf in the pretense of shopping, and when an employee reached for the item, he pressed his body against her. He repeated the same act on three different employees, and the police officers deemed the action unlikely an impulsive act. He was charged with a fourth-degree sexual crime.
A Google Review for a beauty supply contained a complaint from a customer who felt the store owner’s stare felt offensive and possibly an act of sexual harassment.
Even if an action is not physical like that of a criminally charged Rochester Hills man, sexually offensive actions can be deemed sexual harassment.
How the victim felt about the incident is important. How do you measure?
The U.S. Equal Employment Opportunity Commission (“EEOC”) lists the following conduct as examples of sexual harassment.
You should take a good look at verbal harassment and sexual comments about body parts. If it is physical or visual harassment, you can have a certain standard. There are relatively clear-cut cases such as talking about sexual orientation in a vulgar manner, making a joke about it, and unwelcome advances or threats. However, for verbal harassment, it would be hard to say which words would be offensive.
If you tell an employee who looks different from yesterday “pretty” or “sexy”, can the employee file a lawsuit based on how they felt about the conversation? Regardless of your intent, if a person felt uncomfortable, your conduct can be considered sexual harassment. You cannot take it back by saying it was a joke or with a mere apology.The same is true for people of the same gender.
Especially, California has even more victim-oriented laws compared to federal law. Not to mention sexual comments, certain comments related to pregnancy and child birth can be considered sexual harassment.
If you look at a California court case in 2014, an employee named Max Taylor was continuously ridiculed by coworkers. Although he was a heterosexual, coworkers called him gay or a porn star. And he filed a lawsuit against the company that did not intervene to address the workplace harassment. At the conclusion of the trial, the company was ordered to pay $160,000 to the employee, and at an appeal, the appellate court reduced the damages to $150,000, citing lack of evidence.
A high school student in Duluth, Georgia was suspended for a year after hugging a female teacher at the hallway in 2013.
You can see from these cases that how the victim felt can play an important role at the court.
Cultural differences can lead to sexual harassment
You might hear about a story that in Korea, children playfully stick their fingers into each other’s anal region, but in North America, it could be deemed a sexual act. If you watched the Netflix series Kim’s Convenience, the Canadian’s interpretation of child play as a manual penetration of the anus would have probably made you nod. Even in South Korea, child play is increasingly considered sexual harassment and is on the track, to be banned.
While not being physical contact, ordinary conduct in Korea can make people uncomfortable in America. Patting a shoulder for encouragement, touching or groping other’s shoulder and back area even between people of the same gender, and praising one’s appearance overly can be such examples. Especially, not to mention the potentially sensitive areas such as breasts and buttocks, you should avoid comments on body parts.
That is why many Americans often say, “I love your shoes” or “I love your fashion today.” It is to avoid mentioning the appearance or body parts that could bring misinterpretation.
Although a business owner can be the perpetrator of sexual harassment against employees or customers, they may unknowingly get involved in workplace harassment between coworkers or a worker and a customer.
In 2021, a punitive damage lawsuit was filed against Tesla for ignoring complaints from a female worker. Jessica Barraza, 38, filed the sexual harassment lawsuit with the Oakland County court in California. She asked for action from the human resource department after reporting sexual harassment from her supervisor and coworkers, but the company did not respond, causing her to suffer post-traumatic stress disorder. CEO Elon Musk’s tweet was also an issue. She claimed that Musk’s tweet that contained a word reminding a female body part encouraged sexual harassment at the workplace.
As you can see from the case, a business owner can be a defendant in a sexual harassment lawsuit even if they did not perform an action or cause sexual harm to an employee because they failed to act.
As mentioned above, sexual harassment is a type of sexual discrimination, prohibited by state and federal laws. To avoid employer liability, you should take the following actions.
- Establish a strong policy that bans sexual harassment at the workplace and gives notice to employees.
- Include sexual harassment training in employee orientation.
- Inform employees of a procedure to report or file a complaint about sexual harassment.
- In case of an allegation of sexual harassment, you should investigate promptly and thoroughly and impose penalties on the responsible person.
- Monitor employees’ complaints and well-being through work reports.
Customers can also sue the business owner after experiencing uncomfortable situations in the store. A wink or a gaze can be enough to develop into a full legal action. Hence, lawsuits can possibly turn into a means of mental abuse. Many lawyers push for lawsuits. Insurance coverage can be a help, which was discussed in the Cover Story 2 of January issue. If you have Abuse and Molestation Insurance coverage, you can cope with a lawsuit easily. This coverage may not be included in the standard policy. You might need to add the coverage as an endorsement with certain insurance companies. When you renew or buy a new policy, you should always check.
An uncomfortable feeling does not always mean someone is guilty.
During fiscal years 2016-2020, on average, more than 50% of the sexual harassment reports were dismissed for no reasonable cause. Although the victim’s allegation makes a big impact, it can be overruled if not reasonable.
A former store owner who ran a beauty supply in Texas terminated an employee for laziness. The employee sued the owner claiming the inappropriateness of the owner’s question, “do you have a boyfriend?” The court was not persuaded. Although the question may be inappropriate, the question itself does not carry a sexual nuance.Also, the employer kept a work report and submitted the entries of her absence for answering phone calls during work hours, failure to fulfill her duties, and so on. The case was dismissed in the end.
One can file a lawsuit regardless of legal status
Some retail stores hire students or unauthorized workers as part-time employee. Many of them would not file a report despite being victimized because they are afraid of getting caught for unauthorized employment.
This often brings an opportunity for sex criminals to abuse the situation. You can easily find such a post in Korean online communities, but even people with illegal status can file a police report for crimes. If the victim keeps the evidence and hires an attorney, you might be responsible for a sizable damage.
Illegal aliens are protected from crimes in the U.S. In case of theft of personal property, physical assault, or threat or false imprisonment, illegal aliens afford legal protection. They can call the police and get help from the police department and the court.
How widespread is sexual harassment in America?
According to a report from the EEOC, during the fiscal years 2014-2021, a total of 98,411 reports were filed for harassment, and 27,291 of them were sexual harassment. For two years following October 2017, the onset of the Me-Too movement, sexual harassment allegations increased a little. 62.2% of harassment complaints during the fiscal years 2018-2021 and 78.2% of sexual harassment complaints were filed by women.
African Americans constituted the biggest portion of the complainants. 4.8% was filed by Asians, 16% by Whites, while a whopping 71.2% was filed by African Americans.
By region, the South had the greatest number of allegations of sexual harassment. Alabama, Mississippi, Georgia, Kansas, Tennessee, Arkansas, Missouri, Louisiana, and Columbus were the top ten regions.
Sexual harassment is a type of discrimination in America
The U.S. was the first country to establish a legal framework for sexual harassment. Subsequently, the federal government, state governments, and large companies promoted training on sexual harassment prevention and established the foundation. In America, sexual harassment is not just a sex crime, but discrimination based on sex.
Especially, workplace sexual harassment was equated with discrimination against women. Since the Civil Rights Act of 1964, Americans are protected from workplace discrimination based on race, the color of their skin, religion, and country of origin. Afterward, the meaning of sexual harassment and sexual discrimination expanded. Especially, sexual harassment includes not only direct, physical contact but also sexual favors for workplace benefit or promotion, including conduct that could be interpreted in that way by the victim or could offend a victim.
In early 1980s, U.S. courts sympathized with employees who were left in absence of company’s intervention where they felt they were sexually offended, and in 2004, California governor Arnold Schwarzenegger signed the new sexual harassment law that requires any company with 50 or more employees must have their managerial employees to complete a sexual harassment prevention training every other year, which was followed by similar enactments in other states.
Regional variation exists. You should know your state law.
- Statue of limitations for sexual harassment was increased to three years from one.
- Disclosure of the perpetrator’s identity in settlement agreement.
- Companies with 5 or more employees must have a mandatory sexual harassment and discrimination prevention training every other year.
- Employee handbook must include hot line numbers for sexual harassment and explicit prohibition of retaliation.
- Mandatory sexual harassment prevention training (New York City’s sexual harassment education materials can be used)
- The training must include complaint forms for sexual harassment and abuse, the fact that investigation of any complaints must be properly and secretly conducted, the remedy for employees, administrative and legal procedures, and case laws.
- Forbidding retaliation against a whistle blower on employer’s discrimination (Civil Rights Act violation).
- Duty to provide notice of the State of New York Hot Line for sexual harassment (1-800-HARASS-3).
Georgia is one of a few states that do not have a specific law about sexual harassment. However, according to the federal law, a victim may file a petition with the EEOC. Instead of sexual harassment, it is treated as a discrimination based on race, disability, age, or gender. Also, the federal law regarding sexual harassment applies to employers with 15 or more employees.
- Statute of limitations for sexual harassment increased from 180 days to 300 days (matching the federal law).
- In contrast to the federal laws that apply to workplace with 15 or more employees, Texas law in regard to sexual harassment lawsuit defines the employer as a person who employs one or more and the employee as a person who directly acts for the benefit of the employer.
- Employers must promptly take action to address sexual harassment after being given notice.
- Employers who discover workplace harassment must draft an employer’s response document. It should include when and how the incident was discovered, what has been done to address it, and the findings of the investigation.
- The statute of limitations on sexual assault is 300 days from the incidence.
- Employers who did not take action to prevent or stop sexual harassment at the workplace are subject to an official inquiry, and any retaliation against the plaintiff is forbidden.
- Employers with 15 or more employees can be investigated by the EEOC, and the Tennessee Human Right Commission and the EEOC share the duties of investigation for employers with 14 or fewer employees.
While states have varying rules employers must offer sexual harassment prevention training at the workplace and take appropriate actions upon discovery. While employers should avoid being a harasser, they should also keep a keen eye on everyone’s conduct at the workplace.
What should be included in the training?
The easiest way is to help employees to receive online training. Even if your state does not have official state-issued material, you can easily find relevant training offered by online providers. If you recommend the training to employees and keep their certificate of completion in the record, you can provide evidence that you tried to prevent any wrongdoing.
When many people interact in a small space, like in a beauty supply, the likelihood of sexual harassment may increase. Also, in addition to physical contact, inappropriate verbal conduct can lead to misunderstanding, so not only the employers themselves but the employees must be adequately trained regarding the prevention of workplace misconduct.