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Types of Sexual Harassment Claims
Sexual harassment claims come in two forms:
- Quid Pro Quo: This is the demand for sexual favors in exchange for some job benefit (literally translated from Latin as “this for that”). This form of sexual harassment is sometimes thought of in terms of “something for something.” An example is a supervisor’s demand that an employee have sexual relations with him or her to receive a promotion. The US Supreme Court says a quid pro quo sexual situation is harassment even if the harasser doesn’t follow through with the promise of the threat or benefit.
- Hostile Environment: This is when harassing conduct unreasonably interferes with an individual’s work, or creates a hostile, intimidating, or offensive work environment. This type of harassment may include offensive language, jokes, gestures, or comments, as well as offensive pictures, calendars or graffiti. Keep in mind that a hostile work environment determination is based on how the possible victim perceives the behavior, not on stereotyped notions of acceptable behavior.
Unlawful “hostile work environment” generally involves a pattern of offensive conduct. However, the more severe the harassment, the less need to show that there is a series of offensive incidents. In fact, a single, unusually severe incident of harassment may be sufficient to constitute a Title VII violation. For example, the Equal Employment Opportunity Commission presumes that the unwelcome, intentional touching of an individual’s intimate body areas is sufficiently offensive to alter the condition of the working environment and constitute a violation of Title VII.
Same-Sex Sexual Harassment
In 1998, the Supreme Court ruled that same-sex sexual harassment is prohibited by Title VII of the Civil Rights Act. The court said that critical issue for same-sex harassment (as well as opposite-sex harassment) is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. In recent years, the number of harassment complaints filed by men has risen, with most of the complaints alleging harassment by other men.
Harassment Based on Sexual-Orientation
Discrimination based on sexual-orientation is not expressly covered under Title VII, but many state and local laws do prohibit this type of discrimination. Many employers have adopted nondiscrimination policies on sexual orientation even in states with no laws prohibiting sexual orientation discrimination.
Preventing Sexual Harassment
Prevention is the best approach to eliminating sexual harassment in the workplace. Employers can take steps to prevent sexual harassment, like clearly communicating to employees that sexual harassment will not be tolerated. Employers should also provide sexual harassment training to all employees. There may be cases in which, despite your best efforts, sexual harassment occurs; establish an effective grievance process and take immediate and appropriate action when an employee reports an incident.
The following are 10 guidelines to help prevent and respond to sexual harassment:
- Clearly communicate harassment won’t be tolerated. A written policy that clearly states that sexual harassment won’t be tolerated is essential. The policy should also communicate the company’s anti-retaliation efforts against individuals filing complaints or participating in an investigation of alleged harassment. The policy should be acknowledged by all employees upon hire and distributed regularly to serve as a reminder of its importance.
- Enforce policy consistently. Consistent enforcement of anti-harassment and anti-retaliation rules is one way to assure employees that the company is serious about preventing harassment and encouraging employees to come forward with complaints. To this end, employers should take all complaints seriously and protocols should be established for responding to harassment and protecting against retaliation.
- Post the EEO notice. All employers are required to post a notice describing the federal laws prohibiting harassment and other forms of employment discrimination. The poster is titled Equal Employment Opportunity is the Law and is available in the State & Federal Resources section of the website. Conspicuously posting this notice demonstrates compliance with posting requirements and also raises awareness pertaining to harassment and discrimination.
- Provide effective training. Both employees and supervisors should receive sexual harassment training. Employee training should cover the employer’s policy, provide definitions and examples of sexual harassment, and identify procedures for reporting harassing behavior. Supervisor training should also address responsibilities pertaining to preventing and responding to harassment. Note: In some states, such as California, Connecticut, and Maine, supervisor sexual harassment training is required. Check your state law to ensure compliance with your requirements.
- Establish a complaint process. A process should be established by which employees can report violations of the company’s harassment policy. Employees should be urged to report inappropriate conduct immediately and without fear of reprisal, whether they are the victims of harassment or are witnesses. There should be multiple avenues through which employees may file complaints (i.e., more than one official outside an employee’s chain of command).
- Ask employees about working conditions. Rather than waiting for employees to file a complaint, employers can actively seek information from their employees pertaining to working conditions. Supervisors should have regular discussions with their staff to uncover any concerns they may have. If information about alleged harassment is obtained during these conversations, employers have a duty to investigate and take appropriate corrective action.
- Investigate complaints promptly and thoroughly. Once you receive a complaint, investigate immediately. Those conducting investigations should be thorough, impartial, and specifically trained in effective investigation techniques. Interviews with the accuser, the alleged harasser, and witnesses are necessary for gathering evidence and determining appropriate corrective action.
- Consider interim measures. Pending the conclusion of an investigation, employers may choose to take interim measures to prevent any further harassment. Interim measures may include transferring the accused, making schedule changes to avoid contact between the accused and the accuser, or placing the accused on paid leave pending the conclusion of the investigation. Keep in mind that interim measures must not burden the complainant.
- Take corrective action. If it has been determined that harassment occurred, the employer should take immediate and appropriate corrective action. Disciplinary measures should be proportional to the severity of the offense and administered on a consistent basis. It is also advisable to follow-up after the investigation to make sure the remedy was effective. Failure to follow-up can result in liability if the misconduct continues.
- Document. Keep detailed training records as well as records of harassment complaints, investigations, and any corrective action taken. Not only do these records provide documentation of your harassment prevention efforts, but they may also be referred to when investigating future complaints and evaluating patterns of harassment.
The affects of sexual harassment are often felt beyond just the harasser and the victim. Sexual harassment has an effect on morale, self-esteem, productivity, and the reputation of your business. Educating your employees can help protect potential victims, and inform potential harassers of the types of behaviors that will not be tolerated. Prevention is the best way for companies to deal with sexual harassment.
Employer and Employee Responsibilities
Preventing sexual harassment in the workplace is beneficial to both the employer and the employee. The key is to create a safe and friendly environment that will foster the growth and the development of each individual employee as well as the organization as a whole. As a result both the employer and the employee have responsibilities in order to achieve this objective.
Employees also have their own responsibilities in the prevention process. Some examples include:
- Act professionally
- Communicating unwelcome behavior
- Keeping offensive material out of the workplace
- Understand company policy
- Report inappropriate behavior
Be proactive by communicating to your employees that a lack of knowledge or ignorance is not a defense.
Keep in mind that as an employer when there are instances of sexual harassment you have the responsibility to investigate the incident even if the alleged victim was not offended by the behavior. The reason why you must do this is that while the alleged victim may not have been bothered by the behavior or considered it serious, there may have been other employees who were subjected to, or will be subjected to the same behavior in the future from the same individual. Maintaining a professional atmosphere is important to protecting all employees as well as the integrity of the work environment as a whole. If an individual is a victim of sexual harassment but refuses to file a complaint you should contact an attorney. Often times alleged victims will be asked to sign a statement that he or she requested and is comfortable with the circumstances.
Recognizing Sexual Harassment
While only unwelcome conduct that is sufficiently severe or pervasive is unlawful under Title VII, an employer’s policy may go further by prohibiting behavior that it deems inappropriate or otherwise unprofessional on the job. It is essential that supervisors and managers are trained to identify and react to overt and subtle forms of inappropriate behavior and both informal and formal complaints of harassment. Supervisors and managers should receive effective training on enforcing the employer’s policies.
Unlawful sexual harassment can occur in a variety of circumstances, including, but not limited to, the following:
- The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
Remember, an employee or supervisor may not always be aware that their behavior is making others uncomfortable. If supervisors witness inappropriate behavior by an employee, they should be assertive and inform them that their behavior is inappropriate and use the proper channels and procedures to report and discipline the individual.
Employees should be encouraged to tell an individual that his or her behavior is unacceptable and unwelcome if that is the case. In some instances, this can immediately resolve a behavior.
An example of this is a supervisor who likes to put a hand on someone’s shoulder when leaning over to point something out. An employee should be able to politely tell the supervisor that this is unwelcome behavior without fear of retaliation. A supervisor may be unaware that they even have this behavioral tendency and should accept the feedback constructively.
If that does not stop the harassment however, or there is a negative result from expressing the discomfort, the victim should then report the activity according to the company procedure.
Below is a list of some additional tips for managers:
- Remain professional. Managers should make sure they do not tolerate, or engage in, inappropriate behavior. Tolerating cases of hostile environment as, “just joking around” or as “harmless teasing” only further perpetuates the stereotypes that these behaviors are acceptable. Take a clear stance on sexual harassment, and let your employees know it.
- Communicate what constitutes inappropriate behavior. Explicitly inform all employees as to what types of behaviors are unacceptable.
- Make sure all employees understand company policy. Postings, staff training, and the development of complaint procedures. Have employees sign acknowledgment forms stating they understand, and agree to, the policy. Communicate the importance of your sexual harassment policy.
- Be observant of workplace behavior. If you recognize a situation as a hostile environment, immediately report the behavior to the appropriate personnel. Keep in mind, a business can be held liable for instances of sexual harassment if they fail to take action.
Sexual Harassment & Technology
Before the age of technology, sexual and other unlawful harassment was typically confined to the office. But, times have changed, and so has the outlet for harassment. In today’s digital world, there is the potential for harassing behavior to occur 24/7 with a click of a button.
Below are a few examples of how technology can be used as a means for harassment:
- An employee sends a text message to a co-worker asking her out on a date
- Two employees are instant messaging and one sends a sexually suggestive message to the other
- An employee posts a message on Facebook about a co-worker’s physical appearance
Text messaging, social networking sites, and instant messaging all demonstrate the changing face of sexual harassment. And, even though this type of contact may take place outside of normal work hours, it doesn’t mean employers are no longer responsible for addressing it.
Since the avenues for sexual harassment can be more discrete these days, employers need to be extra vigilant in thwarting inappropriate behavior. Below are ways employers can help prevent sexual harassment:
- Update your policy. The foundation of any anti-harassment policy should be prevention. As obvious as it may be, clear language prohibiting sexual harassment is important for demonstrating the severity of the issue and your company’s commitment to preventing inappropriate behavior. Clearly indicate that actions, words, jokes, comments, or any other conduct related to one’s sex, race, ethnicity, age, religion, or any other protected characteristic will not be tolerated. And, because some harassers are now turning to the Internet or cell phones to engage in inappropriate behavior, employers should consider updating their policies to include these types of examples.
- Redistribute your policy. After updating any policy, it’s important to redistribute it so employees are aware of the changes. Given the importance of your company’s anti-harassment policy, you may also want to consider having employees acknowledge the policy on an annual basis. Bringing sexual harassment prevention to light can help demonstrate your good faith efforts at curbing the issue.
- Set standards for after-hours conduct. It’s important to communicate to employees that your anti-harassment policy not only pertains to employee conduct during normal business hours, but outside the office as well, such as at company parties or off-site conferences. It should also be clear that the policy applies whenever employees communicate with one another, whether in person or not. This relates to communication via phone, text, email, or the Internet.
- Recommend “safe surfing”. If employees are concerned about mixing personal and professional contacts, they should be reminded that they have the option to maintain private Internet profiles on most social networking sites. Also, there are a variety of professional networking websites, such as LinkedIn, which may be preferred by employees who wish to keep their work-related contacts separate.
- Demonstrate commitment. Employers should take every claim seriously and communicate to employees that all complaints will be investigated. Employees will be more likely to report inappropriate behavior when they know their concerns will be addressed. Inform employees that they are expected to cooperate with an investigation and that providing false information during the course of an investigation is grounds for disciplinary action, up to an including termination of employment.
- Document prevention efforts. It is important to document and record all preventative actions taken. Documentation can be extremely useful in proving that the employer took reasonable measures to prevent inappropriate behavior. This means documenting proactive steps, such as trainings held, as well as reactive steps, such as investigative findings and disciplinary sanctions.
Employers have an obligation to take all steps necessary to prevent harassing behavior from occurring. Given the growing use of technology, those efforts may need to be re-evaluated. Regular communication pertaining to the issue as well as a formal plan for responding to such situations is of utmost importance.