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Sexual harassment: Workplace guidelines

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in Discrimination and Harassment,Human Resources

Many sexual harassment cases filed under Title VII involve charges of a hostile environment due to unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature. 

Employers must create and enforce sexual harassment policies and conduct sexual harassment training so that supervisors can recognize what is and what isn't considered to be sexual harassment. Supervisors are responsible for eliminating behavior that can lead to claims of a hostile environment in their departments.

1. What is the difference between quid pro quo and hostile environment sexual harassment?

Quid pro quo harassment occurs when an employee with authority or control over the terms and conditions of another employee's work offers him/her a work benefit or advantage in exchange for sexual favors or gratification or denies a work benefit or advantage due to the employee's refusal to respond to, or rejection of, the request.

In order to show quid pro quo harassment, an employee must prove the following.

1. The alleged harasser made sexual advances or sexual requests, or otherwise engaged in conduct of a sexual nature.

2. The sexual conduct was unwelcome.

3a. He/she rejected the advances, requests, or conduct, and the terms or conditions of his/her employment were then adversely affected; or

3b. He/she submitted to the advances, requests, or conduct in reasonable fear of an adverse employment action.

A hostile work environment is defined as: sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when such advances, requests, or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment.

In order to show a hostile work environment, an employee must prove the following.

  1. He/she was subjected to conduct of a sexual nature (e.g., inappropriate touching, sexual epithets, jokes, gossip, sexual comments, requests for sex, sexually suggestive pictures and objects, leering, whistling, sexual gestures).
  2. The conduct was unwelcome.
  3. The conduct had the purpose or effect of creating an intimidating, hostile, humiliating, or sexually offensive work environment.
  4. The conduct unreasonably interfered with the employee's work performance or altered the terms and conditions of employment. (Note: This can hold true even when an employee does not suffer a tangible job detriment. Look at the totality of circumstances, including the nature, severity, and pervasiveness of the conduct and the psychological harm to the employee.)
2. Can "dirty" pictures, vulgar language and jokes, etc., be considered harassment in the workplace if nobody actually files a complaint?

An employer cannot be expected to provide employees with a completely antiseptic workplace, so a certain amount of vulgar language, etc., is allowable. However, employers are generally held liable for harassment that they knew or should have known about, but failed to remedy. So it's better to be safe than sorry. Even if no employees have actually filed formal complaints about it, you must keep your eyes and ears open for those who may feel too intimidated to complain, for example, especially when top executives are involved. You should have a formal harassment policy in place that includes an employee grievance procedure.

3. Do name-calling, gossiping, and slanderous remarks directed toward an employee constitute sexual "harassment" when they are not explicitly sexual or gender-related?

A hostile environment exists when the victim belongs to a protected class; he/she is subjected to unwelcome harassment; the harassment is based on a protected characteristic; and the harassment was "severe or pervasive" enough to alter the employee's work environment and "create an abusive working environment." This is the definition for sexual harassment hostile environment under Title VII. (Note: Courts have ruled that hostile environment claims may also exist under the Americans with Disabilities Act and the Age Discrimination in Employment Act.)

Harassment does not have to be explicitly sexual in order to be illegal. If a person is being harassed because of his/her sex, the behavior may be considered illegal harassment. For example, the lone woman on an otherwise all-male sales staff was subject to a hostile environment that, a court ruled, "would not have occurred if she were not a woman."

4. Can one inappropriate act constitute a hostile environment?

It could.  The standard for evaluating a hostile work environment claim is whether the harassing behavior is sufficiently "severe" or "pervasive" to alter the victim’s employment and create an abusive working environment.  Under extreme circumstances, such as rape or physical assault, one incident may be sufficient to constitute a hostile environment.  The more severe the harassment, the less there is the need to show a repetitive, or pervasive, series of incidents.

5. Is same-sex harassment actionable under Title VII?

Yes.  The victim as well as the harasser may be a woman or a man.  The victim and the harasser do not have to be of the opposite sex in order for a sexual harassment complaint to be valid.

6. Can an employee sue under Title VII for sexual harassment when his supervisor harasses him about his sexual orientation?

Sexual orientation is not a protected characteristic under Title VII.  However, some courts have allowed homosexual employees to file claims of sex discrimination based on their failure to conform to gender stereotypes.

Be sure to check your state's anti-discrimination law, which may explicitly cover sexual orientation and/or gender identity. 

7. Can an employer insulate itself from liability for sexual harassment by creating an anti-harassment policy?

In 1998, the U.S. Supreme Court redefined sexual harassment liability with two landmark decisions — Burlington Industries, Inc. v. Ellerth (No. 97-569) and Faragher v. Boca Raton (No. 97-282) — in which it ruled that employers can be held responsible for supervisory sexual harassment that they knew or should have known about.  The Supreme Court held that an employer is always liable for a supervisor's sexual harassment if it culminates in a tangible employment action (e.g., termination, promotion, demotion).  If there is no tangible employment action, an employer may avoid liability by proving: 

  1. it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and

  2. the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 

Implementing an anti-harassment policy and complaint procedure is one of the main ways employers can show they have "exercised reasonable care to prevent and correct harassment."  While creating a policy does not guarantee insulation from liability, failure to do so will make it difficult for you to prove that you exercised reasonable care.

Your anti-harassment policy and complaint procedure should contain, at a minimum, the following elements:

  • a clear explanation of prohibited conduct;

  • assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;

  • a clearly described complaint process that provides accessible avenues of complaint;

  • assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;

  • a complaint process that provides a prompt, thorough, and impartial investigation; and

  • assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred. 

The policy and complaint procedure should be written in a way that will be understood by all employees.  You should provide every employee with a copy of the policy and complaint procedure, and redistribute it periodically; other measures to ensure effective dissemination include posting it in central locations and incorporating it into employee handbooks. 

If feasible, provide training to all employees to ensure that they understand their rights and responsibilities.  You should also take care to ensure that your organization's supervisors and managers understand their responsibilities under the anti-harassment policy and complaint procedure.  Periodic training of those individuals should explain the types of conduct that violate the anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

8. What steps should an employer take when investigating a sexual harassment complaint?

Here's a step-by-step procedure that will ensure that you get all the information you need when investigating a sexual harassment complaint.

Note: The pronoun used here is "she," but it could also be "he."

Step 1. Interview the harassed employee. What does she say happened? Who does she name as harasser? Where and when did the incident take place? How did she react? Were there witnesses? Was it an isolated incident or part of a series? Has she spoken to anyone else about the incident?

Step 2. Interview the accused harasser. Stay objective. Assume nothing. Put every statement in writing. Remember, your notes may end up in court.

Step 3. Interview all witnesses. Phrase the questions so you don't give any information or influence the comments. For instance, it's better to ask, "Have you heard anyone say something to Ann that made her uncomfortable?" rather than, "Did you hear Frank proposition Ann?"

Step 4. Weigh all the evidence. Consider the credibility of each party, based on the reputations of the employee and the alleged harasser. Is there any possibility the employee is trying to make up for a poor performance review or a disciplinary action? Are there any previous complaints against the accused harasser?

Step 5. Take action. Once you have all the facts, ask yourself if any sexual harassment did occur. If you decide the accusation is without merit, write a detailed report explaining why, and have the evidence to back it up. If harassment did occur, you should follow the disciplinary procedure specified in your company policy.

9. Should an employer launch an investigation if it hears about the sexual harassment of an employee through the company grapevine, even though the victim has not filed a complaint?

Employers are responsible for sexual harassment by one employee against another if they knew about it or should have known about it and did nothing to stop it. Therefore, you must take every complaint of sexual harassment seriously, and investigate it thoroughly.

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