Sexual Harassment in the Workplace

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment 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.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
• The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
• The harasser's conduct must be unwelcome.

The victim should directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.

When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

What should you do if you think your boss may be doing something improper? Is it sexual harassment? It’s a question I deal with all the time in my ethics class. Sexual harassment is a form of sex discrimination. The legal definition of sexual harassment is “unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment.” Two specific legal definitions of sexual harassment have been established in employment law: quid pro quo harassment and hostile environment sexual harassment.  

Quid Pro Quo Harassment:  "Something for something.” Let’s assume your boss threatens to stifle your career advancement unless you sleep with him. This is unlawful whether you submit and avoid the threatened harm or resist and suffer the consequences. Your first step should be to make it clear to your boss this is an unwelcomed advance. At the same time, you should determine the company policy on reporting such matters. If the offensive behavior persists, I recommend you talk to a trusted advisor and/or attorney. It may become a legal issue pending resolution of the matter. In all likelihood your advisor will tell you to go to the Human Resources department where Equal Employment Opportunity Commission (EEOC) matters are dealt with.

Be sure to document your concerns – what did he or she do or say? When did he or she do it or say it? What did you say to the harasser? How did that person react to your concerns? Give a copy of the document to a trusted advisor or lawyer for possible use in a future legal action. The advisor can attest to the fact you provided the document on a specific day so that it wasn’t created after the fact.

If the HR department does nothing or your boss doesn’t change his or her behavior, it’s time to file a formal sexual harassment complaint with the federal EEOC and/or your state’s fair employment agency. You must first file with the EEOC before you file a lawsuit in federal or state court. Generally, you have 180 days to file the complaint. After you file a formal complaint with the EEOC or your state’s fair employment agency, you can also consider filing a lawsuit. You can sue for money damages, to get your job back, and you can also ask the court to make your employer change its practices to prevent future sexual harassment from occurring.

Hostile Environment Sexual Harassment:  This occurs when an employee is subjected to
comments of a sexual nature, offensive sexual materials, or unwelcome physical contact as a regular part of the work environment. Let’s assume your boss has a habit of sizing you up. He looks up and down your body with a sexually suggestive facial expression. Tell him or her it’s unwanted and unwelcome behavior and that it makes you feel uncomfortable. If your boss persists in being a jerk, then follow the steps above. Generally speaking, a single isolated incident will not be considered a hostile work environment. The courts look to see whether the conduct is both serious and frequent. Supervisors, managers, co-workers and even customers can be responsible for creating a hostile environment.

I’ll conclude with a few final comments. Both men and women can be victims of sexual harassment. In Fiscal Year 2010, the EEOC received 11,717 charges of sexual harassment down from the recent high of 13,867 received in 2008. The percentage of claims filed by men increased from 15.9% to 16.4%. The amount of monetary benefits paid out to victims, not including those obtained through litigation, increased from $47.4 million to $48.4 million indicating a greater success rate for the EEOC.

A recent Louis Harris & Associates poll indicates that 62% of sexual harassment targets took no action. Remember, it’s ethically improper and outright wrong for someone to use his or her power and authority over you to exact favors or create a hostile work environment. Speak out if this happens to you. Do not show any kind of interest in going along with advances or tolerating repeated offensive gestures, comments, or actions. Once you start to demonstrate by your words or actions (or inactions) that it is acceptable behavior, it becomes much more difficult to take appropriate action to end it in the future.

Blog by Steven Mintz, aka Ethics Sage, June 21, 2012