Sexual harassment can destroy lives, sink careers, and end businesses. People spend most of their time at their work place and consider it to be a place where they have a right to be comfortable and safe. With almost every company, it is mandated to establish a community of security and respect – the very things that harassment violates. This is articulated in the Government Code sections 12940(a), (j), and (k). Furthermore, sexual harassment is defined as being unwanted sexual advances, or verbal, visual, or physical behavior that is sexual in nature. This can be because of a person’s sex or gender, or harassment based on childbirth, pregnancy, or other medical condition.
Maine has always taken the forefront in acknowledging the importance of sexual harassment prevention.
In 1991, it was the first state in the nation to require workplace sexual harassment training. The rigorous course mandates the participation of all employers with 15 or more employees. The session educates both supervisors and employees.
The existing Maine employment law states that any harassment based on sex is a clear violation of the Maine Human Rights Act. This includes any requests for sexual favors, plus any unwelcome explicit verbal or physical advances. There can be no hint of retribution if an individual should reject such advances, considering it sexual harassment.
Maine Sexual Harassment Laws
The Sexual Harassment Regulations of the Maine Human Rights Commission are as follows:
1. Harassment on the basis of sex is a violation of Section 4572 of the Maine Human Rights Act. Sexual harassment becomes a factor when:
- submission to verbal or physical conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
- submission to or rejection of such sexually based conduct by an individual is used as the basis for employment decisions affecting such individual; or such sexual conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.
- An employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as “employer”) is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment. When the supervisor’s harassment culminates in a tangible employment action, such as, but not limited to, discharge, demotion, or undesirable reassignment, liability attaches to the employer regardless of whether the employer knew or should have known of the harassment, and regardless of whether the specific acts complained of were authorized or even forbidden by the employer. When the supervisor’s harassment does not culminate in a tangible employment action, the employer may raise an affirmative defense to liability or damages by proving a preponderance of the evidence:
- that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
B. that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
- With respect to persons other than those mentioned in paragraph 2 of this section, an employer is responsible for acts of sexual harassment in the workplace where the employer, its agents or supervisory employees knows or should have known of the conduct. An employer may rebut apparent liability for such acts by showing that it took immediate and appropriate corrective action.
Examples of Workplace Sexual Harassment
Here are a few examples of sexual harassment that could take place in the workplace:
- The precise action of targeting a person based on his or her gender
- Making any verbal sexual innuendos and questions that are often lewd in nature
- Leering and name calling that appear sexual or aggressive
- Offensive or lewd jokes
- Possessing or sharing overtly sexual images and pictures
- Any and all undesired sexual advances
- Making a promise of an improved work situation in direct exchange for sex. Examples include promotion, raise or a promised bonus
- Any and all physical touching that is deemed sexual in nature
Maine Employers and Sexual Harassment
All employers and employees are responsible to report harassment of any kind as well as sexual harassment. Employers are also expected to take reasonable care to prevent and promptly correct any unwanted sexual harassment in the workplace. In Maine, the employer is often deemed responsible for the actions of their employees and supervisors.
MaineCanDo.org Educates About Sexual Harassment in the Workplace
With a couple of recent high-profile incidents, Tarana Burke’s #MeToo movement has sprung to the forefront in Maine. Employers and employees are sitting up and taking notice to create sweeping changes.
Betsy Peters has worked tirelessly to form a truly diverse group of local businesses, nonprofit and legal specialists to form an online resource for all employers, managers, board members, workers, and investors who may have suffered or witnessed workplace sexual harassment. At MaineCanDo.org there are many tips, tools and links that focus on preventing on-the-job sexual harassment and offer crucial information on how to deal with it properly when it happens.
The Ramifications of Sexual Harassment in the Workplace
Sexual harassment in the workplace has a detrimental impact on victims, but it can also devastate the involved business and even have huge ramifications on Maine’s economy. A prime example is a recent case that involved Venture Hall. The Portland-based business accelerator was forced to shut down when one of its founders, Jess Knox, admitted to ‘inappropriate behavior’ towards two fellow female employees. The closing of Venture Hall caused Maine to lose a $475,000 grant that was supposed to spur local startup companies.
Undoubtedly, as the above recent case outlines, sexual harassment or even allegations of such behavior have a detrimental effect on any business and can lead to huge financial losses – and even force a company out of business.
The Maine Human Rights Act
All employers should familiarize themselves with the ME Rev. Stat. Tit. 5 Sec. 4551 et seq., better known as the Maine Human Rights Act, which covers all public and private employers within Maine, regardless of size. The Maine Human Rights Act is straightforward and easy to understand. It prohibits discrimination based on sex, pregnancy discrimination, childbirth-related discrimination, and any/all medical conditions related to an employee’s sex.
Also, within this classification are the following:
- Sexual Orientation: This is considered a person’s sexual identity in relation to the gender to which they are attracted (examples are: heterosexual, bisexual, pansexual, transgender, or homosexual.)
- Gender Identity: Gender identity is considered a person’s own personal experience with their own gender. They are allowed to think they are whatever gender they feel like inside. This means that they do not have to outwardly express their true gender, but can decide to change their physical gender anatomy using transsexual gender surgery.
- Gender Expression: Gender expression refers to how a person decides to outwardly express their gender through the use of clothing or hairstyle.
Maine Employment Rights
These are the employment rights laid forth by the state of Maine Human Rights Act:
- Equal Employment Rights
- The RIGHT to freedom from discrimination in employment.
- The opportunity for an individual to secure employment without discrimination… is declared to be a CIVIL RIGHT.
- The Maine Human Rights Act prohibits discrimination because of race, color, sex, sexual orientation, age, physical or mental disability, genetic pre-disposition, religion, ancestry, or national origin.
- The Maine Human Rights Act also prohibits discrimination because of filing a claim or asserting a right under the Worker’s Comp Act or retaliation under the Whistleblower’s Act.
Unlawful Employment Discrimination in Maine
- For any employer to fail or refuse to hire an applicant
- For any employer to discharge an employee
- For any employer to discriminate against an employee with respect to recruitment, tenure, promotion, transfer, or compensation
- For any employment agency to fail or refuse to classify properly or refer for employment an applicant
- For any labor organization to exclude from apprenticeship or membership an applicant
- For any employer, employment agency, or labor organization prior to employment or admission to membership of an individual to ask questions, keep as a record, use the application form, issue any notice, employ a quota system
- For any employer, employment agency, or labor organization to retaliate against a person who has opposed a violation of the Maine Human Rights Act because of race, color, sex, sexual orientation, age, physical or mental disability, genetic pre-disposition, religion, ancestry, or national origin or because of asserting a claim under the Worker’s Comp Act or Whistleblower’s Act
Sexual Harassment Training Requirements
Under Maine’s law, employers with more than 15 employees must provide sexual harassment training to all employees. (26 M.R.S.A S807). All supervisors must also be provided with training within one year of attaining a supervisory position. Employers must provide the training within one year of hiring a new employee. By law, all employers are required to keep detailed records of the sexual harassment training they have provided for a minimum of three years. The records should include the name of each employee who participated in the training, the dates and times of the training, and a list of the written materials provided at the time of training. Ideally, employers should have each employee sign a form stating they participated in the class.
What Must be Included in the Training Content?
Employers must use a detailed checklist prepared by the Maine Department of Labor (MDOL) to develop and host their sexual harassment training programs. The Maine Sexual Harassment training law requires the following be included in the mandatory course:
- A written notice of the illegality of sexual harassment
- A description that outlines sexual harassment under Maine’s state law and provides descriptions.
- An outline of the internal complaint process
- The legal recourse and complaint process available through the Maine Human Rights Commission
- A review of all directions on how to contact the Maine Human Rights Commission
- An explanation of the protection against retaliation, as provided pursuant to Maine law (Title 5, section 4553, subsection 10, paragraph D.)
- The specific responsibilities of supervisory and managerial employees
- The methods that supervisors and managers should immediately take to ensure prompt and appropriate corrective action that addresses any and all sexual harassment complaints
Sexual Harassment Workplace Posting Requirements
In addition to sexual harassment training, all employers must post in a “prominent and accessible location in the workplace” a poster that “may meet but may not exceed 6th-grade literacy standards.” The Maine Human Rights Commission provides free posters to employers.
The poster must include the following:
- The definition of sexual harassment plainly outlined with all included illegalities
- A description of what constitutes sexual harassment with outlines or examples
- The necessary steps needed to start the complaint process through the Maine Human Rights Commission
- Clear and concise guidelines on exactly how to contact the Maine Human Rights Commission
Sexual Harassment Penalties Faced by Maine Employers
Any employer who fails to provide training, provide an annual notice, and post a notice in the workplace regarding the illegality of sexual harassment faces penalties of up to $5,000 per violation. Maine law (Title 26 M.R.S.A §807) states that an employer who does not provide the required training may be assessed a fine by the Maine Department of Labor.
Violations are as follows:
First violation: Fine of $1,000
Second violation: Fine of $2,500
Third or subsequent violation: Fine of $5,000
Penalties for Failure to Offer Sexual Harassment Training Classes
Maine law (Title 26 M.R.S.A §807) states the following penalties for failure to offer sexual harassment training classes:
First violation: The first violation can incur a fine of up to $25 per day, but it shall not to exceed $1,000
Second violation: The second violation must occur within three years of the prior violation. It incurs a minimum fine of $25 per day, up to $50 per day, but shall not exceed a total of $2,500.
Third violation: The third violation must occur within three years of two or more or the prior violations. It incurs a minimum fine of $25 per day or up to $100 per day but shall not to exceed $5,000.
Although the reality of penalties is a strong incentive for employers to comply by offering sexual harassment training courses and maintaining a poster outlining the law in the workplace, all employers should also take the reality of a changing work environment seriously.
With the #MeToo movement, many employees subjected to sexual harassment are now gaining the courage and support they need to step forward. Harassment claims can be incredibly costly to defend. All employers should take the necessary legal steps to ensure that they educate their employees.
Our Portland Attorneys Have Experience With Sexual Harassment Cases
Nichols & Tucker can successfully negotiate sexual harassment cases that occur in the workplace. It is all too common that victims of sexual harassment are so full of fear and of losing their job that they never come forward about what is really going on.
It can be very daunting to openly speak about what has been going on – oftentimes embarrassment plays a part, as well. By having a lawyer on your side that understands how delicate the situation is makes a big difference.
Everything will be handled with dignity and class in order to make sure you are able to work in a place with total safety and peace. As a victim in the entire situation, you will be able to finally focus on your work and not have to feel uncomfortable in your own office.
Nichols & Tucker, P.A. stays up to date on all federal and state laws pertaining to sexual harassment in the workplace. Please contact us today to discuss your options.