Unwanted Advances, a Hostile Work Environment, and Threatening Behavior that is Sexually Based has no Place in the Workplace
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 college teaching.
Many sexual harassment cases are filed under Title VII and involve charges of a hostile environment due to unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature.
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 do or say? When did he do it or say it? What did you say to him? How did he 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 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 it’s unwanted and unwelcome behavior and that it makes you feel uncomfortable. If he 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.
Employers must be committed to stopping sexual harassment to stem the tide of increasing incidents including female-male harassment and harassment based on sexual preference. To do so, employers must create and enforce sexual harassment policies and conduct sexual harassment training so that supervisors can recognize what is and what isn't considered to be sexual harassment. Supervisors are responsible for eliminating behavior that can lead to claims of a hostile environment in their departments.
A hostile work environment is more common than we think. It is defined to include: sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when such advances, requests, or conduct have the purpose or effect of unreasonably interfering with an individual's work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment.
In order to show a hostile work environment, an employee must prove the following.
- He/she was subjected to conduct of a sexual nature (e.g., inappropriate touching, sexual epithets, jokes, gossip, sexual comments, and requests for sex, sexually suggestive pictures and objects, leering, whistling, sexual gestures).
- The conduct was unwelcome.
- The conduct had the purpose or effect of creating an intimidating, hostile, humiliating, or sexually offensive work environment.
- The conduct unreasonably interfered with the employee's work performance or altered the terms and conditions of employment. (Note: This can hold true even when an employee does not suffer a tangible job detriment. Look at the totality of circumstances, including the nature, severity, and pervasiveness of the conduct and the psychological harm to the employee.)
It is ethically improper for someone to use his or her power and authority over another employee 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 that it is acceptable behavior, it becomes much more difficult to take appropriate action to end it in the future.
If you have specific workplace issues and would like my advice, click the box on my website to as a question: http://www.workplaceethicsadvice.com/.
Blog posted by Steven Mintz, aka Ethics Sage, on October 30, 2013