Identifying the Legal and Ethical Issues of Sexual Harassment
The following blog is by Emily Henry. For additional information about her please see the last paragraph of the blog.
As more sexual harassment cases continue to be brought to light, this hopefully means that more people will feel safe to report instances of sexual misconduct in their workplace. In turn, it’s the responsibility of businesses and other organizations to be prepared for these scenarios. A thoughtfully developed workplace sexual harassment policy and investigation procedure will help alleviate any confusion on how to approach this serious matter.
In this article, I address the basics of what sexual harassment is, the pillars of a supportive organizational environment, and developing a fair sexual harassment policy and procedure.
What is Sexual Harassment?
Steven Mintz, aka The Ethics Sage, explains that 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.
Hostile Environment: 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. 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. Make sure your actions conform to the company policy on such matters.
Building on the above discussion, when developing a sexual harassment policy for your workplace it’s a good idea to carefully go over each of the following steps.
Developing the Policy
Write a policy statement that reaffirms your commitment to a safe work environment for every employee. In this statement, express an absolute zero tolerance for sexual harassment in your workplace. Emphasize that complaints will be handled with the utmost sensitivity, diligence, and respect. It’s important to reference any relevant federal and state law. This provides legal backing to your sexual harassment policy.
Some points to include in your policy definition are:
- According to the Equal Employment Opportunity Commission, sexual harassment is any form of unwelcome sexual conduct of any sort. This includes “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”
- The roles of victim and harasser are not limited to a specific gender.
- A harasser can be a co-worker, supervisor, or a client/customer.
Explicitly define the type of behavior that constitutes sexual misconduct. Specify examples, but stress that sexual misconduct is not limited to those examples. Include examples of physical verbal, and non-verbal sexual misconduct.
Developing your workplace sexual harassment policy is the easy part. As important as it is to have a clear sexual harassment policy in place, how you handle complaints in the organizational context matters more. Unfortunately, many businesses develop these policies simply for show. They might file the policy never to be taken out and used for training in sexual harassment matters. In the unfortunate event of an actual incident in the workplace, many businesses might willfully ignore their own policy.
Determining an investigation procedure helps to ensure all parties understand what to do in case a sexual misconduct in the workplace does occur. It’s important to adopt a procedure that supports the needs and respects the wishes of the victim.
To ensure the matter is handled with the utmost care, any individual or team who deals with the investigation should be trained specifically on sexual harassment management. If a designated team within the HR department will be handling complaints, a gender-balanced team is essential.
Outlining The Procedure
When outlining a procedure for a sexual harassment investigation, account for several scenarios such as the involvement of law enforcement, an informal resolution process, and a formal resolution process.
While each investigation might differ, the typical process should somewhat resemble these steps:
- Reassure the victim that the matter will be handled in a way that respects their wishes prioritizes their safety and keeps matters confidential other than discussing it with the accused.
- Record all relevant information about the incident based on the victim’s account.
- Inform the victim of their options outside of the workplace in case they wish to pursue justice through the legal system.
- Ask the victim for their desired resolution to ensure you have all the facts.
- Based on their desired resolution, explain the process to them and any additional steps to take.
- Listen to the alleged harasser’s response to the complaint to assess their position on the matter.
- In the event that the victim chose an informal resolution, mediate a conversation between the victim and alleged harasser perhaps by having an independent party conduct the mediation.
- In the event that the victim chose a formal resolution process, follow the appropriate steps for a formal investigation.
If the investigation finds the alleged harasser to be guilty of misconduct, determine the appropriate resolution for both parties taking into consideration the damage to the victim. One possible consequence for the harasser is termination. Beyond that, the handling of the resolution may be litigated in the courts.
When it comes to sexual harassment in the workplace, a well-developed policy and procedure helps to reduce the chances of this serious matter being mishandled. It’s important to remember that having a policy and procedure in place means nothing if it’s not diligently executed. Those involved in resolving the matter must treat both parties with respect, gather as many facts as possible, maintain confidentiality, and make an informed judgment.
Emily Henry is a hiring manager and writer at Simple Grad and Studydemic. She writes articles on protecting safety, equity, and inclusion in the workplace. Also, she is a tutor at Top writing services.
Blog posted by Dr. Steven Mintz, The Ethics Sage, on November 30, 2021. Steve is the author of Beyond Happiness and Meaning: Transforming Your Life Through Ethical Behavior. You can sign up for his newsletter and learn more about his activities at: https://www.stevenmintzethics.com/. Follow him on Facebook at: https://www.facebook.com/StevenMintzEthics and on Twitter at: https://twitter.com/ethicssage.