February 13, 2012
Sexual Harassment and OSHA: Is Sexual Harassment a 'Recognized Hazard'?

by David Galt, BLR Legal Editor

Sexual harassment in the workplace is connected to the overall health and safety of harassment victims and their coworkers. Even so, workplace safety and health laws administered by the Occupational Safety and Health Administration, or OSHA, are limited in their authority and reach concerning workplace harassment.

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The connections between sexual harassment and worker safety and health include:

  • Increased stress for victims, which can lead to a variety of physical ailments
  • Inability of victims to focus on doing a job correctly and safely
  • Inability of coworkers and managers to effectively respond to or deal with sexual harassment
  • Intimidation that causes victims to be reluctant to raise legitimate safety issues for fear of being ridiculed
  • Workplace violence, if harassment takes the form of actual or threatened physical contact

About 12,000 workers file sexual harassment charges under Title VII, the federal anti-bias law with the U.S. Equal Employment Opportunity Commission (EEOC) each year. The allegations in many of these cases include verbal threats, confinement, and physical assault, which also qualify as workplace violence.

Hostile Work Environment a Form of Sexual Harassment

Sexual harassment comes in two forms:

  1. Quid pro quo (or “something for something” in Latin) harassment when an employee's submission to or rejection of unwelcome sexual conduct is used as a basis for employment decisions about that employee.
  2. A hostile work environment that is sufficiently severe or pervasive to alter the victim's employment conditions and create an abusive working environment.

Is Sexual Harassment a “Recognized Hazard”?

Although currently there are no specific federal workplace safety and health standards to address problems of sexual harassment, the federal Occupational Safety and Health Act (OSH Act), in Section 5(a)(1), provides that “each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. ”

In a workplace where the risk of violence and serious personal injury are significant enough to be “recognized hazards,” the General Duty Clause would require the employer to take feasible steps to minimize those risks. Failure of an employer to implement feasible means of abatement of these hazards could result in the finding of an OSH Act violation.

On the other hand, the occurrence of acts of violence which are not “recognized” as characteristic of employment and represent random antisocial acts which may occur anywhere would not subject the employer to a citation for a violation of the OSH Act.

Factors to Consider in Recognizing Sexual Harassment as a Recognized Hazard

Whether or not an employer can be cited for a violation of Section 5(a)(1) is entirely dependent upon the specific facts, which will be unique in each situation. The ability to recognize and foresee the hazard, and the feasibility of the means of abatement, are some of the critical factors to be considered in determining if a specific sexual harassment case is a recognized hazard.

Be Alert--Sexual Harassment-Related Stress Can Cause Accidents

Remember that high levels of stress are not compatible with safety, since employees that are upset and distracted are going to be more susceptible to mistakes that lead to accidents. If you sense high stress levels among employees:

  • Be alert for signs of what may be causing it--including sexual harassment.
  • Remember that seemingly innocent remarks, banter, or pranks with sexual overtones can cause a problem if even one employee takes offense at them.
  • Make sure that you are not guilty of intentionally or unintentionally acting in a way that could be perceived as demeaning, insulting, or offensive.

Sexual Harassment Resources

David Galt is a Legal Editor for BLR’s environmental and safety publications, focusing primarily on training and safety and health-related topics. He has spent 15 years in the environmental regulatory field as a lobbyist and policy analyst, and has a Master’s Degree in environmental management from the Yale School of Forestry and Environmental Studies. Dave serves on the national Certified Environmental, Safety and Health Trainer (CET) Board of Certification.

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