One of the unfortunate realities employees and employers must deal with in todays culture is the problem of sexual harassment in the workplace. Here are some common questions people have regarding sexual harassment and some basic information regarding the topic.
Sexual harassment is often defined as any kind of sexual behavior that is unwelcome and/or inappropriate for the work place or environment. Sexual harassment includes verbal harassment, such as derogatory comments or dirty jokes; visual harassment, such as derogatory or embarrassing posters, cartoons; physical harassment such as inappropriate touching; and sexual favors, such as sexual advances or confrontation with sexual demands.
Sexual harassment also includes animosity that is gender-based and a sexually charged work environment. In the work place, sexual harassment can come from the owner, supervisor, manager, lead person, foreperson, co-worker and/or customer. However, sometimes sexual harassment does not restrict itself to the work place. Sexual harassment can come in many forms. Sexual harassment can also be found in schools.
Quid pro quo sexual harassment takes place when a supervisor or someone with authority over a persons job demands sexual favors from the person in exchange for his/her assistance in promoting, hiring, or retaining you. The demand for sexual favors can be express, e.g. “If you sleep with me, I will make sure you keep your job or get a raise”, or it can be implied from unwelcomed physical conduct such as touching, grabbing or fondling.
An employee has a right to work in an environment that is free of discrimination, intimidation, insult and ridicule. If such a work environment is not provided there is a potential claim for hostile work environment. There is a claim if the sexual harassment unreasonably interferes with the employees work performance or creates an offensive or intimidating work environment. In order to have a claim for hostile work environment, the employee must be able to prove that there was more than a single incident of harassment you may also have to show that the sexual conduct was unwelcome.
Some examples of a hostile work environment include: Being the butt of sexually-charged jokes or pranks; being grabbed or whistled at; sexual advances; requests for sexual favors or other verbal, visual, or physical conduct of a sexual nature. Conduct that makes the workplace sexually charged does not need to be directly aimed at the person being harassed in order for it to be actionable. For example, being subject to pornographic posters/pictures or profanity can still create a hostile work environment.
The law does not prohibit all sexual behavior or relationships. For example isolated and trivial behavior does not rise to the level of sexual harassment and consensual conduct is not harassment.
Isolated and trivial behavior. The law does not prohibit gender-based behavior that is both isolated and trivial. A sexual joke or an off-hand gender-related comment by itself will not constitute illegal conduct. The United States Supreme Court has said that the law is not intended to be a “general civility code.”
Consensual conduct. Relationships and conduct which are truly consensual do not constitute sex harassment. Consensual conduct is equally desired, mutually agreed-on, and willingly permitted by both parties. The fact that a person has “voluntarily” submitted to certain conduct; does not inform the other party that the conduct is offensive or undesirable; or, may have benefited from it does not necessarily mean that it is consensual. If the conduct was unwanted by that person, it may constitute harassment.
Once the employer knows or should know about the harassment, the employer has a duty to take immediate and appropriate corrective action to end the harassment. The employer’s response must be reasonably calculated to end the harassment and if earlier discipline did not end the harassment, more severe discipline is required.
One of the best ways to reduce sexual harassment claims is to maintain good policies and procedures to deal with any problems. Some of those policies include:
1. Drafting and publicizing an anti sexual harassment policy;
2. Implementing a procedure for employees to follow if they feel they have been the victim of sexual harassment; and
3. Conducting company wide sexual harassment prevention trainings.
Hopefully the information provided in the article gave you a better understanding of the law of sexual harassment. However, every situation is unique so do not consider this article as legal advice or rely on it in dealing with your individual situation. If you have specific questions about your situation consult with the EEOC or an attorney who is familiar with sexual harassment law.