COURSE OBJECTIVES
- Identify workplace behavior that may constitute unlawful sexual harassment.
- Learn the parameters of acceptable social interaction at work.
- Gain tools in assessing behavior.
- Understand and take steps necessary to satisfy the legally imposed obligation to ensure a workplace free of sexual harassment.
- Learn how to respond to complaints of sexual harassment.
- Understand the concept of retaliation.
HOW DOES THE LAW DEFINE SEXUAL HARASSMENT?
Sexual harassment is UNWELCOME conduct of a SEXUAL NATURE that occurs in the workplace and takes one of two forms:
Quid Pro Quo Harassment: when submission to or rejection of sexual conduct is used as the basis for making employment decisions, such as promotions, pay increases, hiring and firing; or
Hostile Environment Harassment: sexual conduct that has the purpose or effect of unreasonably interfering with an employee's work performance or creates an intimidating, hostile, or offensive working environment.
Quid Pro Quo Sexual Harassment
- "This for that."
- An exchange of sexual conduct for an employment benefit.
- If convinced that a supervisor has demanded sexual favors in exchange for an employment benefit, most employers will terminate that supervisor.
Determining When Sexual Conduct Is Unwelcome
- Did the employee indicate, by her/his conduct, that the sexual advances or conduct were unwelcome?
- Notice of the unwelcome conduct may be explicit or implicit.
- The "totality of the circumstances" will be evaluated such as:
- Whether the employee contemporaneously complained about the conduct;
- If no complaint was made, the reason the employee did not come forward, i.e., fear of retaliation;
- Whether the employee's conduct was consistent or inconsistent with the claim that the sexual conduct was unwelcome; and
- Whether the individual initiated the conduct.
- Employees should be encouraged to professionally and politely inform the other employee that his/her conduct was inappropriate and unwelcome.
Determining Whether The Conduct Is Sexual
- "Sexual" is broadly interpreted by the courts.
- Not necessarily graphic or egregious conduct.
- Romantic gestures, e.g., asking somebody out on a date, will be considered "sexual" conduct under the law.
- Same-sex harassment is unlawful; it does not need to involve allegations of gay or lesbian conduct.
Determining Whether A Work Environment Is Hostile
- Intent is irrelevant. Harassing conduct has the "purpose or effect" of interfering with an employee, even if the harasser meant no harm. "I’m just joking" or "I didn’t mean anything by it" are not adequate excuses.
- The conduct must be sufficiently severe or pervasive so as to alter the conditions of the employee's employment. Trivial or merely annoying conduct will not sufficiently alter an employee's working conditions. Hypersensitive employees will not automatically be entitled to relief.
- A pattern of offensive conduct is generally required. Unless severe, a single incident or isolated incidents of sexual conduct or remarks will not be sufficient to show environmental harassment.
- The conduct will be evaluated from the objective viewpoint of a reasonable person facing the same conditions.
For example, a workplace in which sexual slurs, displays of pinups and other offensive conduct are commonplace can still be a hostile environment even if many employees deem it to be harmless or insignificant.
The EEOC Sexual Harassment Guidelines
Sexual Harassment
| (a) | Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. | |
| (b) | In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case-by-case basis. | |
| (c) | Applying general Title VII principles, an employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as "employer") is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The Commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acts in either a supervisory or agency capacity. | |
| (d) | With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. | |
| (e) | An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees. | |
| (f) | Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned. | |
| (g) | Other related practices: Where employment opportunities or benefits are granted because of an individual's submission to the employer's requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied the employment opportunity or benefit. |
California Fair Employment And Housing Act
How State Law Defines Sexual Harassment
In its regulations, the California Fair Employment and Housing Commission defines sexual harassment as including, but not limited to:
|
State Definition |
Examples |
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Verbal harassment: epithets, derogatory comments or slurs. |
Name-calling, belittling, sexually explicit or degrading words to describe an individual, sexually explicit jokes, comments about an employee's anatomy and/or dress, sexually oriented noises or remarks, questions about a person's sexual practices, use of patronizing terms or remarks, verbal abuse, graphic verbal commentaries about the body. |
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Physical harassment: assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual. |
Touching, pinching, patting, grabbing, brushing against or poking another employee's body, hazing or initiation that involves a sexual component, requiring an employee to wear sexually suggestive clothing |
|
Visual forms of harassment: derogatory posters, cartoons or drawings. |
Displaying sexual pictures, writings or objects, obscene letters or invitations, staring at an employee's anatomy, leering, sexually oriented gestures, mooning, unwanted love letters or notes. |
|
Sexual favors: unwanted sexual advances which condition employment benefit upon an exchange of sexual favors. |
Continued requests for dates, any threat of demotion, termination, etc., if requested sexual favors are not given, making or threatening reprisals after a negative response to sexual advances, propositioning an individual. |
What Are The Obligations And Liabilities Of Employers And Supervisors?
Key Responsibility: Employers and supervisors must take steps to prevent sexual harassment, and respond promptly to stop harassment that is brought to their attention or which should have been known to them.
Responding to Complaints:
- Supervisors should be aware of the employer’s harassment policy and complaint procedure.
- Supervisors should disseminate the policy and complaint procedure to their work groups.
- Supervisors should respond promptly to complaints of sexual harassment.
- Do not enter into secrecy pacts; explain what confidentiality means.
- Take notes and gather all factual information.
- Relay complaint to appropriate personnel for the employer, e.g., human resources.
The nature of the legal obligations and potential liability depend upon whether the alleged harasser is exploiting a position of power to obtain sexual favors.
| Supervisor | ---> | Employee |
| Employee | ---> | Employee |
| Customer/Vendor | ---> | Employee |
| Employee | ---> | Non-employees in a business, service or professional relationship |
Supervisor ---> Employee (power relationship)
- Quid Pro Quo Harassment: The employer will always be liable where a supervisor has made or threatened to make an employment decision based on the refusal to participate in sexual conduct. The use of authority and position to obtain sexual favors may result in liability even when the sexual advances or conduct occurs during non-working hours or off the employer’s premises.
Supervisors may also be held personally liable for such conduct.
- Hostile Environment: The employer is automatically liable for environmental harassment created by the conduct of a supervisor. Under federal law, employers may have a defense if (1) there has been no tangible job loss or detriment; (2) the employer has an established and disseminated sexual harassment policy and complaint procedure; and (3) the complainant unreasonably failed to complain about the unwelcome conduct.
Supervisors may be held personally liable for their own wrongful conduct.
Employee ---> Employee (neutral power relationship)
- An employer becomes liable for sexual harassment between employees when it knows or should have known of the conduct and fails to take immediate and appropriate corrective action. Employers will be viewed as knowing of harassment which is openly practiced in the workplace.
- Employees have been held personally liable in California for their unlawful conduct.
Members of the Public / Customers and Vendors ---> Employee
-
The same standard will be used as with harassment which occurs between two employees.
Employee ---> Non-Employees In A "Professional Relationship"
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An employee ( and potentially a person’s employer) is liable for sexual harassment committed by the employee to a non-employee if:
- A business, service or professional relationship exists — such as physician, psychotherapist, dentist-patient, attorney-client; banker; trust officer; real estate agent; accountant; loan officer; teacher-student; or other "substantially similar" relationship;
- The non-employee cannot easily end the relationship without tangible hardship;
- Sexual advances, solicitations, sexual requests; or demands for sexual compliance have been made;
- The conduct was unwelcome and persistent or severe;
- The conduct continued after a direct request to stop; and
- The non-employee has suffered or will suffer economic loss or disadvantage or personal injury as a result.
Preventing Workplace Sexual Harassment:
What No One Is Telling You
1. The Litmus Tests
If you have any question about whether your comments, compliments, jokes or conduct will be considered unwelcome, don't do it. If you need help drawing a line for workplace comments or conduct, use any of our three "litmus tests."
| a) | Would you say the same thing or allow such a comment to be said to a loved one of whom you feel especially protective, e.g., a daughter, son, niece, nephew, sister or brother? If you wouldn't want such a comment said to that person, then don't say it and don't allow it to be said to others. | |
| b) | Would you make the same comment or act in the same manner if your spouse/partner and the other person's spouse/partner were present? If not, don't say it and don't allow it to occur. | |
| c) | Would you want to read about your comments or conduct on the front page of the morning newspaper? If that is a distasteful thought, then do not make the comment or engage in the conduct. |
2. Alcohol: Moderation Or Temptation?
A surprising number of sexual harassment issues arise when co-workers drink alcohol. Often this conduct occurs at the employer’s functions, such as holiday parties, and the excessive consumption of alcohol prompts embarrassing and regrettable conduct. Alcohol loosens inhibitions and causes you to look differently at that co-worker you have known for years. Suddenly, your co-worker is unbelievably more attractive and more witty than you ever thought he or she could be. A possible solution is to avoid drinking alcohol with co-workers unless: (1) it is just one drink; (2) you know the person well enough to avoid any misunderstandings in communication; or (3) both parties' spouses/partners are present. The presence of spouses/partners serves to dramatically counteract the effect of alcohol consumption.
3. Wait For The Return Arrow
The law does not prohibit you from asking a co-worker out on a date one time. However, if the person you ask declines without indicating that he or she is interested in going out another time, then don't ask again. Wait for the person to return Cupid's arrow by asking you out socially.
4. Compliments Don't Include Body Parts
It is perfectly acceptable to compliment co-workers if the remarks have no sexual component. "That is a nice tie" or "Those are nice earrings" are appropriate comments and do not constitute sexual harassment. However, by including body parts in the compliment, you introduce a sexual element in the comment. "You have great legs" objectifies the person's body and should be avoided.
5. Know Your Limitations
If you have been involved in prior incidents in which co-workers misunderstood your intentions, then be especially cautious in how you interact with others. Be sensitive to how you are being perceived.
6. "I Was Just Joking" Is No Excuse
The law on sexual harassment clearly states that an individual's sexual conduct that has the purpose or effect of unreasonably interfering with an employee's work performance or creates a hostile environment can be found to be unlawful. Everyone understands that deliberately creating a hostile environment would be unlawful. However, many people don't understand that intent is irrelevant — merely creating the effect is sufficient. "I didn't mean to do anything. I was just joking around." These are common excuses, but they are not ways to escape liability.
7. Listen And Pay Attention
Almost all sexual harassment complaints could be resolved without involving a supervisor or the human resources department, if everyone in the workplace paid more attention to the verbal and nonverbal cues of others. An employee usually gives some indication that the objectionable conduct from another employee is unwelcome. Pay attention and respect that individual's wishes.
8. A Co-Worker Is A Co-Worker
Many employees make the mistake of believing co-workers are their friends based on "friendly" interaction in the workplace and, therefore, often unwittingly step over the line of acceptable behavior. Unless you truly have a relationship outside of work, then a co-worker is a co-worker, not a friend.
9. Confidentiality; Not Secrecy
Anyone who complains to management about unwelcome and offensive conduct should expect the complaint to be handled in a confidential manner. However, you must understand that confidential does not mean secret. Rather, it means that the matter will only be addressed with those who have a legitimate business need to know the information.
10. Do Not Fish Off Your Own Pier
Numerous issues are raised when supervisors date subordinates. Under the best of circumstances, you create morale, credibility and supervisory problems. The worst case scenario is exposure to sexual harassment complaints and possible liability. There are many fish in the sea, just don’t fish off your own pier.