Ha ha, and you thought I was done! No, there are a couple other situations in Oregon’s updated sexual harassment law where employers can be liable for the sexual harassment taking place in their work places and not even know it. We’ve covered all of the obvious ones so far, such as if a very high up official at the company is the one perpetrating the sexual harassment, or a supervisor type is doing the sexual harassment and using their authority to put a subordinate in an uncomfortable place, to fire someone, to not hire someone, or to otherwise damage their career because of gender.
We’ve also seen how in many cases of sexual harassment, an employer has to prove that they tried their best to prevent any cases of sexual harassment in order to avoid liability. For if an employer is found to have known about the case and not done enough to stop it, or to should have at least known about the case, then the employer is definitely liable there in many cases.
Another instance where liability comes into play is if the employee complaining about sexual harassment in fact once consented to the sexual activity or behavior previously. But as soon as the employee decided they didn’t like the sexual activity or became uncomfortable about it, then the employer should have stepped in, or should have known to step in, to put a halt to it.
Lastly, if sexual harassment occurs and the person getting harassed gives in in order to get a promotion, a raise, a new position, or any other kind of benefit because of it, the employer can be liable to all of those other employees in that department who could have gotten that promotion, benefit, or what have you—but did not get it because they did not succumb to the sexual harassment.
Believe it or not, the liabilities that employers in Oregon face because of sexual harassment doesn’t stop there, and nor do the updates to the sexual harassment law in Oregon. Let me continue: the employer in the state of Oregon can also be liable if harassment occurs by a co-worker or an agent of the company, even if that person doesn’t have an authority position over the other worker.
In this scenario, the employer is liable again getting back to the old notion that the employer should have known that the sexual harassment was going on. So even though the co-worker or agent didn’t have any sort of employment related leverage over the other employee, it is still considerer sexual harassment if the employer singles them out, teases them, touches them, or threatens to touch them—and the employer should have known, or did know and didn’t do anything about it.
The only way out of this scenario for you employers is to find out about this sort of sexual harassment misconduct and take immediate and authorized steps to put a stop to the sexual harassment.
Here comes another believe it or not: employers can even be responsible and liable in court for harassment that takes place carried out by a non-employee. So even if this person doesn’t work for you, as long as the harassment takes place in your work site, and you should have known about it—or worse, knew about it and did nothing to stop it—then you are still liable. This is true when a supervisor or agent at the work site is considered your proxy, or representative. In that case of course, as your proxy, the supervisor should have stopped the sexual harassment if they knew about it, or found out about it if they didn’t know about it.
Employer liability does not stop there. According to the revised Oregon labor Lawson sexual harassment, if a supervisor harasses a subordinate but doesn’t even use their authority role over the person to affect that person’s job, the employer can still be liable for that sexual harassment.
How is that possible? Well, there are certain scenarios. Let’s say that the employer knew that the supervisor was harassing their subordinate and did not act to stop it or did not punish the supervisor for his or her actions. In that case, the employer could be found liable for the harassment.
Another care could be if the employer didn’t know about the harassment by the supervisor—but should have known. If a court can find that the employer should have detected the harassment, or had some sort of system in place to isolate and discover and then punish the supervisor, then that employer could still be liable for the case.
How can an employer protect themselves in such situations? It sounds like perhaps an employer can be darned if they do and darned if they don’t. But the truth is that the employer must always show that they always exercised some sort of effort to prevent sexual harassment at their work sites, and that when they discovered any cases of it, that they promptly did their best to put a stop to it.
The employer could also prove their lack of liability by showing that they had a sexual harassment prevention and or treatment program in place, in order to help out employees who felt that they were being improperly singled out because of their gender or even picked on or groped because of it. But that the employee crying out that they were sexually harassed in court did not take advantage of these systems and safeguards when they had a chance to.
So when do I get to the changes in the state of Oregon’s sexual harassment laws? Well, soon enough. One must have patience and master the basics of the subject, my student, before the teacher can fill you in on the utmost complexities of the topic. Just kidding. The truth of the matter is that sexual harassment is such a serious topic that it surely doesn’t hurt for us to have a refresher on it. Employers in Oregon and all over the country are concerned about their legal liabilities with it, or at least they should be considering how the courts treat the issue nowadays.
And how do they treat it? At least in Oregon the revised law on sexual harassment has it that the employer is a proxy in sexual harassment cases. That means that the employer can be liable for harassment, especially in circumstances when the employee doing the harassing is somebody with a high-up position, even an executive or a manager type. In these cases, that high-up employee for all intents and purposes is a “proxy” of the employer as a whole. That employee represents the company, and the company’s authority over the employee being harassed.
Another instance when an employer is liable is when a supervisor is doing the harassing and uses his or her authority over another employee to gain leverage, stunt the person’s career, ask for sexual favors for advancement, etc.—any sort of case where the supervisor is using their employer-given authority over their subordinate in the whole sexual harassment process. This could include if the supervisor then fires the employee because they wouldn’t give them the sexual favors, or purely because of the employee’s gender, or if they choose not to hire somebody or promote somebody for the same reasons.
The rules on sexual harassment have changed slightly in the state of Oregon, enough so that employers in the state should take notice because of increased responsibility and liability that could be coming their way. And when I say liability, I mean the kind that lands you in court because a supervisor or somebody else under your watch ended up sexually harassing another worker, and that worker points the finger at you for not having a grip on your work sites.
The definition of sexual harassment in the state of Oregon hasn’t altered all that much, though. It still is the illegal discrimination on the basis of gender. It can include unwanted sexual advances, demands or request for sexual acts or favors, or any sort of out of place sexual conduct that is aimed at one worker specifically because of that worker’s gender.
Also included in the definition are if the person is made to feel that they have to submit to those demands for sexual favors, or else they may lose their job, or lose out on benefits or advances at their job. It could also go the other way, if the person feels that other people of the same gender in their office have gotten ahead because they have acceded to those sexual favors. Any sort of hostile or belligerent language directed at the employee, because of their gender, can also be considered sexual harassment if the person feels threatened, intimidated, offended or even frightened by it.
The determining factor for any of this behavior, to determine if it is in fact and in law some form of sexual harassment, is that it is intimidating or annoying or frightening enough that a “reasonable person,” if in the harassed person’s shoes, would feel the same way about that behavior directed at them.