Sexual Harassment at Work

Sexual harassment, sexual assault, and sexual misconduct allegations have been surfacing at an alarming rate. It’s troubling to see so many lives hurt, but it’s good that so many individuals are finding the courage to speak up. Problems can only be solved if they’re clearly identified. The focus has been on celebrities and high profile individuals (Harvey Weinstein, Kevin Spacey, Al Franken, etc), but make no mistake, sexual harassment is not limited to Hollywood or Politics.

But what exactly is sexual harassment?  How does it differ from sexual assault or more general harassment?  Most importantly, what can you do to make sure your team isn’t doing anything to make others uncomfortable or committing crimes that put your company at risk.

Definitions:

Sexual Harassment

Per the U.S. Equal Employment Opportunity Commission:

It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Sexual Assault

Per The United States Department of Justice:

Sexual assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape.”

Harassment

Per the U.S. Equal Employment Opportunity Commission:

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA), and the Americans with Disabilities Act of 1990, (ADA).

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:

  • The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
  • Unlawful harassment may occur without economic injury to, or discharge of, the victim.

Prevention is the best tool to eliminate harassment in the workplace. Employers are encouraged to take appropriate steps to prevent and correct unlawful harassment. They should clearly communicate to employees that unwelcome harassing conduct will not be tolerated. They can do this by establishing an effective complaint or grievance process, providing anti-harassment training to their managers and employees, and taking immediate and appropriate action when an employee complains. Employers should strive to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed.

Employees are encouraged to inform the harasser directly that the conduct is unwelcome and must stop. Employees should also report harassment to management at an early stage to prevent its escalation.

Employer Liability for Harassment

The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.

When investigating allegations of harassment, the EEOC looks at the entire record: including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis.

If you believe that the harassment you are experiencing or witnessing is of a specifically sexual nature, you may want to see EEOC’s information on sexual harassment.

Sexual Misconduct

Sexual misconduct is a blanket, non-legal, term used to encompass a myriad of sexual crimes including harassment, and assault.

Examples of Sexual Harassment or Harassment:

  • Sexual Jokes
  • Sexual emails, texts, or imagery
  • Unwanted verbal and physical contact (touching, rubbing, brushing, hugging, kissing, fondling, etc.)
  • Repeated letters, telephone calls, texts, visits, emails, social media posts, etc. for dates or sexual favors
  • Repeated & unwanted flirting
  • Stalking-like behavior
  • Quid pro Quo (aka This for That)

Is it Sexual Harassment or Harassment?

The line between Sexual Harassment and Harassment can be fine.  For example, “I like the way that dress fits on you” could be argued under Sexual Harassment or Harassment.  We’ll be writing a piece soon covering more on Harassment.

What you can do:

If you’re in HR:

  • Know what training is required in your state (requirements may differ for supervisors). We recommend training even if it isn’t required to avoid these types of issues, and help mitigate legal liability if an issue does arise.
  • Understand that employees may not report unwelcome conduct or behaviors due to fear (loss of job, retaliation, etc.).
  • Encourage employees to report any incident to HR.
  • Be aware that the company may be held liable.

If you’re a Manager:

  • Understand that employees may not report unwelcome conduct or behaviors due to fear (loss of job, retaliation, etc.).
  • Encourage employees to report any incident to HR.
  • Be aware that the company and you may be held liable.
  • Take quick, appropriate action if an issue comes to your attention.
  • Model appropriate behavior
  • Create and maintain an appropriate workplace environment

If you’re an Associate:

  • Model appropriate behavior
  • Take quick, appropriate action if an issue comes to your attention.

 

Sexual Misconduct is a complex and toxic issue in the workplace.  Taking the necessary precautions and appropriately addressing issues, helps you, your team, and your organization avoid criminal behavior, attrition, inefficient production, and an inhospitable working environment.  Training should be conducted on a continuous basis.  Initial training should occur during onboarding, and subsequent trainings should occur as legal updates are made and in accordance with your state’s laws.  For more information on training, contact us at [email protected] or 1-800-350-9114!

 

Disclaimer: We are not Lawyers and this should not be seen as legal advice.  If you have a legal matter you’d like to discuss, we’d be happy to refer you.

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