SEXUAL HARASMENT: A PARADIGM FOR PREVENTION



HR Learning Solutions

Sexual and Workplace Harassment Prevention Training to Comply with State & Federal Laws

Employee Manual

RECOGNIZING AND PREVENTING

SEXUAL HARASSMENT

IN THE WORKPLACE

Introduction

Today’s diversified workforce is far more gender-balanced than it was years ago, and as the complexion of the employment force has changed, certain sensitivities have changed as well.

In today’s workplace, people of diverse backgrounds share common bonds, common dreams and common goals. In an effort for all of us to do the best possible job and produce the best possible results, it is important that we work as a team, take pride in what we do, and act responsibly and fairly towards those with whom we work. As well, that our conduct is always and without exception, courteous and professional– for there is behavior that is appropriate… and there is behavior that is inappropriate.

This guide will help you better understand what sexual harassment is, its impact on society, and how to ensure a harassment-free environment.

Table of Contents

What is Sexual Harassment? ……….……………………..…………...5

The Legal Definition of Sexual Harassment …………………… .........5

State and Local Laws on Sexual Harassment ………………................5

Dynamics of Sexual Harassment ….………………………..…........… 6

The Two Forms of Sexual Harassment ……………………................. 6

Quid Pro Quo Sexual Harassment ………………………………......... 6

Examples of Quid Pro Quo Sexual Harassment ………………..…..… 7

Dynamics of Quid Pro Quo Sexual Harassment ……..………….......... 7

Hostile Work Environment Sexual Harassment …………………...…. 7

Examples of Hostile Work Environment ………………………...........8

Dynamics of a Hostile Work Environment …..……….….......……….. 9

Standards for Identifying a Hostile Work Environment..……….…….. 10

Unwelcome Conduct ……..………………………………….......…….10

The Reasonable Person Standard ……………………………......…….11

First Amendment Rights in the Workplace ……………………......…..11

Same-Sex Harassment ……………………………………….....……...12

E-mail Harassment …………………………………………………….12

EEOC Guidelines to Include Non-Employees ………….….......……...12

Psychological Effects of Sexual Harassment ……………………....… 13

Psychological Symptoms of Sexual Harassment …………….......…… 13

Table of Contents

(continued)

Subtle Sexual Harassment …………………………………............….. 14

Asking a Co-Worker Out On A Date ……………………….......….......14

Office Romances – Dating in the Workplace ……………….......……. 14

Potential Downsides of Office Romances.…………………….......…...15

If You Feel You Are Being Harassed:

Suggestions on What to Do ……………………………………….…...15

Grievance Procedure ………………………………………….......….. 16

Discrimination ………………………………………………………....16

A Special Anti-Discrimination/Harassment Policy Reminder ………...17

The Goal …………………………………………………………..…...17

In Order to Create a Harassment-Free Workplace …………………….17

What Is Sexual Harassment?

Sexual harassment, either physical or verbal, is unsolicited, unwelcome and pervasive, offensive behavior that has a direct negative affect on the victim’s job performance.

Sexual harassment is a form of sex discrimination. It is a violation of Title VII of the Civil Rights Act of 1964, as well as the guidelines set forth by the Equal Employment Opportunity Commission, and is against the law.

The Legal Definition of Sexual Harassment

The Equal Employment Opportunity Commission guidelines state:

“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;

1. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or,

1. 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.”

State and Local Laws on Sexual Harassment

Besides the aforementioned federal guidelines, there are also state and local laws against sexual harassment. These laws vary from state to state.

Dynamics of Sexual Harassment

Sexual harassment is not just restricted to the unwelcome, persistent sexual advances or conduct of a male supervisor toward a female subordinate. Harassment dynamics include:

1. Male to Female

2. Female to Male

3. Same Sex

4. Supervisor to Subordinate

5. Subordinate to Supervisor

6. Co-Worker to Co-Worker

7. Employees to Third Parties (i.e. clients, salespeople, visitors)

The Two Forms of Sexual Harassment

8. Quid Pro Quo

9. Hostile Work Environment

Quid Pro Quo Sexual Harassment

Quid Pro Quo means “something given or received for something else”. An employer’s, supervisor’s or manager’s demand for sexual favors from a subordinate in exchange for employment benefits constitutes quid pro quo sexual harassment. The rejection of such sexual advances may result in any number of negative employment decisions including job termination.

Examples of Quid Pro Quo Sexual Harassment

10. Demanding or inferring that sexual favors will result in a pay raise, promotion, or other fringe benefit

11. The threat of job termination as a result of refusing to grant sexual favors

12. A qualified employee loses out on a promotion after the employee rejected the supervisor’s sexual advances

Dynamics of Quid Pro Quo Sexual Harassment

Although the most common cases of harassment involve a male supervisor and a female subordinate, sexual harassment also includes:

13. A female supervisor and a male subordinate

14. A supervisor and employee from another department

15. An agent of the employer (i.e. an independent contractor) and an employee

16. An employee and a non-employee (i.e. a client or salesperson)

Hostile Work Environment Sexual Harassment

A Hostile Work Environment goes beyond the dynamics of the supervisor/subordinate relationship and includes co-workers, where there is no clear-cut imbalance of power. Hostile Work Environment sexual harassment is any and all unsolicited, unwelcome and pervasive speech and/or conduct that a reasonable person would find so offensive, and would create such an abusive working environment, that it has a direct negative affect on the victim’s job performance.

Examples of Hostile Work Environment

17. Unwelcome Physical Contact – kissing, fondling, massaging, rubbing, pinching, etc.

18. Profanity and Other Kinds of Verbal Abuse – suggestive or off-color jokes, teasing, referring to individuals in the workplace as “Honey”, “Sweetheart”, “Baby”, etc.

19. Intrusive Questions of a Sexual Nature – asking a fellow employee to describe his or her sex life

20. Offensive Material in the Workplace – posters, calendars, drawings, any renderings of a pornographic or sexual nature

21. Ridiculing and Unfair Treatment of Employees Because of Sexual Preference – taunting, teasing, ridiculing a homosexual employee

22. Unfair Treatment Because of Gender-Based Favoritism – making different demands and requirements of either men or women based strictly on gender (i.e. asking a female subordinate to dress sexy for a prospective male client)

23. Obscene Gestures – any gestures which would be considered obscene to a reasonable person and provocative looks such as leering, staring and ogling

24. Graphic or Degrading Comments – describing an employee’s body or appearance

25. Persistent Unwelcome Compliments – any kind of excessive attention, even if it’s complimentary – such as constant flattery, gifts, notes, phone calls – create a hostile work environment if the attention is unwelcome and has been stated as such

26. Unwelcome Conduct – persistent hovering or lingering around the workplace of an employee or co-worker

27. Persistent Requests for Dates – “no” means “no”. There’s no harm in asking, but once the answer is “no”, the requests must stop

28. Sexual Pursuit of an Employee Outside the Workplace – repeated phone calls to an employee’s home or showing up at their home, despite the fact that it is outside the workplace, still constitutes a hostile work environment

29. Indirect Talk of a Sexual Nature – if a third party is not participating, but is in the presence of a conversation of a sexual nature, such conversation can create a hostile work environment for the third party

30. Rumors – as an example, spreading a rumor that a person slept his or her way to a promotion or other benefits

31. Retaliation – unfair treatment of a subordinate or co-worker for refusing a quid pro quo or other romantic or sexual offer (which includes retaliation by a supervisor against an employee for terminating a romantic relationship)

Dynamics of a Hostile Work Environment

A Hostile Work Environment may include any of the dynamics explained in quid pro quo sexual harassment. But, unlike quid pro quo, where there is a condition of employment placed on the subordinate by the supervisor, hostile work environment sexual harassment can take place between co-workers.

Standards for Identifying a Hostile Work Environment

The work environment is considered to be hostile if:

1. The conduct is severe or pervasive enough to alter the conditions of

the victim’s employment

2. A reasonable person of the same gender would find the conduct to be

hostile and abusive

Factors affecting this determination include:

1. Whether the conduct was physical, verbal, or both

2. The frequency of the conduct

3. The severity of the conduct

Unwelcome Conduct

The EEOC Guidelines define unwelcome conduct as…

“The conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable and offensive.”

Unwelcome conduct is evaluated on a case-by-case basis. Since certain behavior may not be considered offensive to some people but considered extremely offensive to others, it is the victim who defines unwelcome conduct.

The Reasonable Person Standard

The reasonable person standard is intended to protect against frivolous claims.

According to the EEOC Guidelines, harassment claims should be evaluated based on the following condition:

“Whether a reasonable person in the same or similar circumstances would find the challenged conduct intimidating, hostile, or abusive.”

To determine whether or not the reasonable person standard has been met, the EEOC Guidelines also state:

“Consideration is to be given to the perspective of individuals of the claimant’s race, color, religion, gender, national origin, age, or disability.”

First Amendment Rights in the Workplace

Can an employee hide behind the freedom of the First Amendment to defend the display of offensive material?

“A perpetrator may attempt to claim his [or her] First Amendment Rights are being violated if he [or she] is asked to remove offensive material such as a sexually explicit poster or cartoon from the workplace. The employees of private employers have no such rights in the workplace. If the presence of such material is offensive to others, the First Amendment does not protect the employee in this case, and the employer is within his legal rights to prohibit such material.”

Same-Sex Harassment

Section 615.2(b)(3) of the EEOC Compliance Manual states:

“The victim does not have to be of the opposite sex from the harasser. Since sexual harassment is a form of sex discrimination, the crucial inquiry is whether the harasser treats a member or members of one sex differently from members of the other sex. The victim and the harasser may be of the same sex where, for instance, the sexual harassment is based on the victim’s sex… and the harasser does not treat employees of the opposite sex that way.”

E-mail Harassment

In the workplace, e-mail harassment is defined as any inappropriate use of e-mail an employee sends that contains content that may reasonably be considered offensive or disruptive to other employees. These messages take many forms, including but not limited to:

32. Sexually explicit language and/or photos;

33. Questions about one’s physical appearance;

34. Questions about one’s sexual practices’

35. Threatening or hostile messages;

36. Promotion of discrimination on the basis of race, color, national origin, age, marital status, sex, political affiliation, religion, disability or sexual orientation;

37. E-mailing what would be considered offensive materials.

EEOC Guidelines to Include Non-Employees

In 1988, the EEOC amended its guidelines to include the behavior of non-employees. Code of Federal Regulations (CFR) 1604.11(e) states:

“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 the conduct and fails to take 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-employers.”

Psychological Effects of Sexual Harassment

38. A breach of faith between employees and management

39. Affects job performance and morale

40. Employees are out sick more often

41. Productivity goes down

Psychological Symptoms of Sexual Harassment

Victims of sexual harassment experience trauma. This trauma may manifest itself through:

Guilt

• Fear

• Depression

• Anxiety

• Shame

• Loss of Self-Esteem

• Loss of Productivity

• Loss of Appetite

• Insomnia

• Vulnerability

• Irritability

Subtle Sexual Harassment

Not all sexual harassment is blatant and explicit. Today, sexual harassment is more subtle and implicit than in years past. As a result, it can be harder to recognize because the victim may be psychologically manipulated. At first, the victim may not even feel she or he is being harassed. Since subtle sexual harassment is, at times, difficult to recognize, it can take place for a longer period of time before it is actually identified.

Asking a Co-Worker out on a Date

There is no harm in asking, unless the employer maintains a policy against it. When there is no quid pro quo implication, asking a co-worker out on a date is not sexual harassment. However, if the answer is “no” and the requests persist, this then becomes a case of sexual harassment.

Office Romances – Dating in the Workplace

Office romances can happen, and are by no means illegal. When the relationship is mutually consensual, dating in the workplace does not constitute sexual harassment. But there are risks, particularly when one person in the relationship is in a greater position of power.

Potential Downsides of Office Romances

42. The subordinate may be unfairly promoted, causing a problem within the ranks of the department – especially by those who were deservedly in line for promotion.

43. The supervisor may show signs of preferential treatment to the subordinate, causing resentment.

44. The supervisor, in an effort not to show preferential treatment, may go out of his [or her] way to treat that subordinate unfairly.

45. Should the personal relationship break up, the supervisor may retaliate against that subordinate, thus creating a hostile work environment.

If You Feel You Are Being Harassed:

Suggestions on What to Do

46. Tell the harasser to stop. The first course of action is to express your feelings and talk to that person. Hopefully, this will resolve the situation. If the harassment continues…

47. Document the scenario(s). Write down where and when the harassment(s) occurred and what was said and/or done, and include your response.

48. Get emotional support. You do not have to go through this alone.

49. Talk to your supervisor. If your supervisor is the harasser, go to someone else such as his [or her] supervisor or the Human Resources / Employee Relations Department.

50. Keep copies of performance evaluations and other documentation that attest to the quality of your work. The harasser may question your job performance in order to justify his [or her] behavior.

51. Look for witnesses and other victims. This may not be the first time the perpetrator has behaved this way. There may be other people who can corroborate your grievance.

52. Follow your organization’s “grievance procedure”.

Grievance Procedure

The purpose of a grievance procedure is to resolve matters internally – within the confines of the employer. It is a protocol that ensures that all claims will be investigated in a truthful, unbiased and confidential manner, and will protect the grievant from retaliation. A grievance procedure will provide counseling to the victim and/or time off, if needed, and will protect the employment position of the grievant. All employees are required to follow internal grievance procedures, to resolve any matter concerning workplace harassment, sexual harassment or discrimination.

Discrimination

The dictionary defines discrimination as:

1. The act of discriminating

2. The ability or power to see or make fine distinctions; discernment.

3. Treatment or consideration based on class or category rather than individual merit.

It is illegal to discriminate against others, on the basis of their race, color, creed, national origin, age, sexual orientation or physical and/or mental disability. Failure to respect this policy will result in disciplinary action, if not employment termination.

A Special Anti-Discrimination/Harassment Policy Reminder

We prohibit discrimination against anyone who works for us, or who applies to work for us, based upon their national origin or religious beliefs.

During our world's volatile times, fear and anger might cause some of us to begin losing sight of conduct that we might have found unacceptable just a week or so ago. All of us, and particularly those who supervise others, must be alert to this possibility and unafraid to intervene, in the event they witness or suspect this type of discrimination taking place. Employees and others who feel they have been discriminated, in any way, are to follow internal grievance procedures to resolve the problem.

The Goal

The goal in any workplace is to create and maintain a harassment-free environment.

In Order to Create a Harassment-Free Workplace:

• Be familiar with and abide by your employer’s policy on sexual harassment.

• When you go to work, don’t leave your common sense at home. Treat those in the workplace, as you would want yourself or a member of your family treated.

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