As an employer, you have a responsibility to maintain a workplace that is free of sexual harassment. This is your legal obligation, but it also makes good business sense. If you allow sexual harassment to flourish in your workplace, you will pay a high price in poor employee morale, low productivity, and lawsuits.
The same laws that prohibit gender discrimination prohibit sexual harassment. Title VII of the Civil Rights Act is the main federal law that prohibits sexual harassment. (For more information on Title VII, see Nolo's article Federal Antidiscrimination Laws.) In addition, each state has its own anti-sexual harassment law.
This article explains what sexual harassment is and provides some prevention strategies. If you need more detailed information on your legal obligations, or your company has been hit with a harassment complaint, pick up a copy of The Essential Guide to Handling Workplace Harassment & Discrimination, by Deborah C. England (Nolo).
What Is Sexual Harassment?
Sexual harassment is any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile, or offensive working environment. Any conduct of a sexual nature that makes an employee uncomfortable has the potential to be sexual harassment.
Given this broad definition, it is not surprising that sexual harassment comes in many forms. The following are all examples of sexual harassment:
• A supervisor implies to an employee that the employee must sleep with him to keep a job.
• A sales clerk makes demeaning comments about female customers to his coworkers.
• An office manager in a law firm is made uncomfortable by lawyers who regularly tell sexually explicit jokes.
• A cashier at a store pinches and fondles a coworker against her will.
• A secretary's coworkers belittle her and refer to her by sexist or demeaning terms.
• Several employees post sexually explicit jokes on an office intranet bulletin board.
• An employee sends emails to coworkers that contain sexually explicit language and jokes.
The harasser can be the victim's supervisor, manager, or coworker. An employer may even be liable for harassment by a nonemployee (such as a vendor or customer), depending on the circumstances.
Anyone Can Be Sexually Harassed
Sexual harassment is a gender-neutral offense, at least in theory: Men can sexually harass women, and women can sexually harass men. However, statistics show that the overwhelming majority of sexual harassment claims and charges are brought by women claiming that they were sexually harassed by men.
People of the same sex can also sexually harass each other, as long as the harassment is based on sex rather than sexual orientation, which is not a protected characteristic under Title VII. For example, if a man's coworkers constantly bombard him with sexually explicit photos of women, and this makes him uncomfortable, he might have a sexual harassment claim. If, however, a man's coworkers tease and belittle him because he is gay, that might not be illegal harassment under federal law as it is currently interpreted. (Of course, even if this type of behavior isn't illegal, it also isn't appropriate, and savvy employers will put a stop to it promptly so everyone can get back to work.)
The line between harassment based on sex and harassment based on sexual orientation becomes blurred when gender-based stereotypes are at play. For example, courts have held that Title VII is violated when a woman is harassed and discriminated against because she does not act sufficiently feminine; similarly, a man who is harassed for having effeminate mannerisms and gestures is protected by Title VII. These same employees might not be protected if their harassers relied more explicitly on homophobic slurs and remarks. Again, however, smart employers won't parse the legal details: This type of behavior detracts from productivity and morale and doesn't serve any valid purpose, so there's no reason to allow it to continue.
Strategies for Prevention
There are a number of steps that you can take to reduce the risk of sexual harassment occurring in your workplace. Although you may not be able to take all of the steps listed below, you should take as many of them as you can.
• Adopt a clear sexual harassment policy. In your employee handbook, you should have a policy devoted to sexual harassment. That policy should:
o define sexual harassment
o state in no uncertain terms that you will not tolerate sexual harassment
o state that you will discipline or fire any wrongdoers
o set out a clear procedure for filing sexual harassment complaints
o state that you will investigate fully any complaint that you receive, and
o state that you will not tolerate retaliation against anyone who complains about sexual harassment.
• Train employees. At least once a year, conduct training sessions for employees. These sessions should teach employees what sexual harassment is, explain that employees have a right to a workplace free of sexual harassment, review your complaint procedure, and encourage employees to use it.
• Train supervisors and managers. At least once a year, conduct training sessions for supervisors and managers that are separate from the employee sessions. The sessions should educate the managers and supervisors about sexual harassment and explain how to deal with complaints. To learn more about dealing with employee complaints, see Nolo's article Guidelines for Handling Discrimination and Harassment Complaints.
Sexual Harassment Training Requirements
Some states require certain employers to conduct sexual harassment training. For example, California law requires employers that have at least 50 employees to provide supervisors with two hours of interactive sexual harassment training every two year. Connecticut and Maine also require sexual harassment training. And other states strongly encourage employers to provide such training, even if it isn't legally required. Even if your state doesn't require or suggest training, it's still a good idea -- your managers will know what the law is and what to do when employees complain, and, if you find yourself in a lawsuit, you'll be able to show that you took steps to try to prevent harassment.
• Monitor your workplace. Get out among your employees periodically. Talk to them about the work environment. Ask for their input. Look around the workplace itself. Do you see any offensive posters or notes? Talk to your supervisors and managers about what is going on. Keep the lines of communication open.
• Take all complaints seriously. If someone complains about sexual harassment, act immediately to investigate the complaint. If the complaint turns out to be valid, your response should be swift and effective. For more about dealing with complaints, see Nolo's article Guidelines for Handling Discrimination and Harassment Complaints.
Preventing Sexual Harassment in the Workplace
Definition: Sexual Harassment
Sexual harassment is a form of discrimination, in the United States, that violates Title VII of the Civil Rights Act of 1964.
Sexual harassment occurs when one employee makes continued, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, to another employee, against his or her wishes.
According to a current issues update from the U.S. Equal Employment Opportunity Commission (EEOC), sexual harassment occurs, "when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."
Examples of Sexual Harassment
Sexual harassment can occur in a variety of situations. These are examples of sexual harassment, not intended to be all inclusive.
• Unwanted jokes, gestures, offensive words on clothing, and unwelcome comments and repartee.
• Touching and any other bodily contact such as scratching or patting a coworker's back, grabbing an employee around the waiste, or interfering with an employee's ability to move.
• Repeated requests for dates that are turned down or unwanted flirting.
• Transmitting or posting emails or pictures of a sexual or other harassment-related nature.
• Displaying sexually suggestive objects, pictures, or posters.
• Playing sexually suggestive music.
When an employee complains to a supervisor, another employee, or the Human Resources office, about sexual harassment, an immediate investigation of the charge should occur. Supervisors should immediately involve Human Resources staff. Employees need to understand that they have an obligation to report sexual harassment concerns to their supervisor or the Human Resources office.
Policies to Adopt to Prevent and Address Sexual Harassment
Your policy handbook needs a:
• sexual harassment policy,
• general harassment policy,
• policy about how sexual harassment investigations are conducted in your company, and
• policy that forbids an employee in a supervisory role from dating a reporting employee and that details the steps required should a relationship form.
I'm not a fan of non-fraternization policies. I think the workplace is one of the logical locations for people to meet and fall in love, as long as the employees engaged in the relationship follow common sense guidelines. But, dating your reporting staff is never appropriate. After creating these policies, you need to train all employees about these policies.
The Role of Managers in Harassment Prevention and Investigation
Managers and supervisors are the front line when it comes to managing employee performance and needs from work. First, and most importantly, you do not want a workplace culture that allows any form of harassment to occur. Out of your commitment to your employees and your company, harassment, in any form, is never to be tolerated.
In harassment, as well as in other law suit-engaging topics, as an employer, demonstrating that you took appropriate steps is crucial. In fact, demonstrating that you took immediate action and that the consequences for the perpetrator were severe, is also critical. And, the front line leader is usually the person initiating and following through on those steps, so they have to feel confident about what they are doing. Any form of harassment can create a hostile work environment including sexual harassment and how it is addressed. The court's definition of what constitutes a hostile work environment has recently expanded to coworkers who are caught up in the situation, too.
As you think about sexual harassment and other forms of harassment in your work place, keep these facts in mind.
• The employee harassing another employee can be an individual of the same sex. Sexual harassment does not imply that the perpetrator is of the opposite sex.
• The harasser can be the employee's supervisor, manager, customer, coworker, supplier, peer, or vendor. Any individual who is connected to the employee's work environment, can be accused of sexual harassment.
• The victim of sexual harassment is not just the employee who is the target of the harassment. Other employees who observe or learn about the sexual harassment can also be the victims and institute charges. Anyone who is affected by the conduct can potentially complain of sexual harassment. As an example, if a supervisor is engaged in a sexual relationship with a reporting staff member, other staff can claim harassment if they believe the supervisor treated his or her lover differently than they were treated.
• In the organization's sexual harassment policy, advise the potential victims that, if they experience harassment, they should tell the perpetrator to stop, that the advances or other unwanted behaviors are unwelcome.
• Sexual harassment can occur even when the complainant cannot demonstrate any adverse affect on his or her employment including transfers, discharge, salary decreases, and so on.
• When an individual experiences sexual harassment, they should use the complaint system and recommended procedures as spelled out in the sexual harassment policy of their employer. The investigation should be conducted as spelled out in the handbook.
• The employer has the responsibility to take each complaint of sexual harassment seriously and investigate. The investigation should follow these steps listed in How to Address Sexual Harassment Charges.
• Following the investigation of the harassment complaint, no retaliation is permitted, regardless of the outcome of the investigation. The employer must, in no way, treat the employee who filed the complaint differently than other employees are treated nor change his or her prior-to-the-complaint treatment. If it is determined that the employee lied, disciplinary action is necessary, however.