Ohio Chamber: Sexual Harassment Claims in the ‘Me-Too’ Era

Originally published in Ohio Matters (November/December 2018).

By Barry Freeman

Read the full article on OhioChamber.com.

Unless you have been stuck without internet in the wilderness, you are aware of the “me-too” movement and its focus on the continuing problem of sexual harassment in the workplace. Roughly a year after “me-too” began, what have been its effects and ramifications?

THE LAW
For the most part, the law has not changed in 20 years, since the U.S. Supreme Court issued three decisions defining the modern law of sexual harassment. In sum, that law is:

If there is sexual harassment by a non-supervisor (including coworkers and third parties), an employer’s liability is based on negligence. If the employer knew or should have reasonably known about the harassment but failed to take reasonable action, the employer is liable. As the plaintiff, it is the harassee’s burden to prove negligence.

If there is sexual harassment by a supervisor and the supervisor takes tangible action against the harassee (for example, firing him or her for not submitting to a request for sexual favors), the employer is liable, no ifs, ands or buts.

If there is sexual harassment by a supervisor, but the supervisor does not take tangible action, the employer is presumed to be liable. This is subject to an affirmative defense (for which the employer bears the burden of proof ) that the employer took reasonable steps to prevent and remedy any harassment, but the harassee unreasonably failed to take advantage of those reasonable steps.

SEXUAL HARASSMENT CLAIMS IN THE ‘ME-TOO’ ERA
THE PROBLEMS
With that legal standard background, harassment problems continue in the workplace. [Read the full article.]

Barry Freeman is a Partner in the Employment & Labor Practice Group. He can be reached at:

p| 216.736.4223
[email protected]