Sexual harassment that you may unconsciously conduct at workplace
Sexual harassment may not always occur intentionally from the perspective of the person committing the harassment. However, the intent of the person who is alleged to have committed such behavior may not be relevant to determining whether a violation has occurred. The relevant determination is whether a reasonable person similarly situated could have reasonably considered the alleged behavior to be sexual harassment.
Not all interpersonal activity in the workplace will be defined by law as sexual harassment.
What is “unwelcome sexual conduct?”
Sexual conduct in the workplace is unwelcome when an employee does not solicit or initiate the conduct and when the employee regards the conduct as undesirable and offensive. If a complaint or protest is made at or near the time the sexual activity occurs, that is good evidence that the conduct is unwelcome. If someone in the company comes to a manager or supervisor with a complaint, remark, offhand comment or other statement expressing concern about sexual conduct in the workplace, this should be taken as a sign that the conduct is unwelcome. Further investigation of the conduct should take place.
Unwelcome activity of a sexual nature is classified as sexual harassment under the law. Sexual conduct is unwelcome when:
- acceptance or rejection of the conduct is used to make employment decisions (hiring, promotion, work assignments, pay increases) that affect the person claiming harassment;
- the conduct has the purpose or effect of unreasonably interfering with the victim's job performance; or
- the conduct creates an intimidating, hostile, or offensive work environment.
Two forms of sexual harassment
Sexual harassment in the workplace occurs when any employee is made to feel uncomfortable because of unwelcome conduct at work based on sex. Typically, this occurs in one of two ways—it’s either “quid pro quo” or it’s “hostile work environment” sexual harassment.
1. Quid pro quo harassment.
“Quid pro quo” means “something for something.” This type of harassment occurs when a harasser makes unwelcome sexual conduct a condition of employment or the basis for an employment decision. For example, saying "go out to dinner with me if you want that raise or if you want to keep your job."
Sexual favoritism can give rise to complaints of sexual harassment. If one employee is granted a promotion in return for sexual favors, other male and female coworkers can allege sexual harassment by showing that they were denied an equal opportunity for promotion because of the improper sexual conduct.
2. Hostile environment harassment
This is relentless and continuing unwelcome sexual conduct in the workplace that interferes with an employee's work performance or that creates an intimidating, hostile, abusive, or offensive work environment. Hostile environment harassment includes;
- Obscene or “dirty” language, remarks or jokes
- Sexual gestures
- Inappropriate touching
- Sexual advances
- Comments of a sexual nature about a person’s body
- Acts of physical aggression or intimidation
- Comments based on gender — “sexual stereotyping”
- Talking about the sexual activities or desires of the harasser, harassee or other person
Sexual harassment you may unconsciously conduct
The point is how a victim perceives the sexual conduct, not the harasser. It doesn’t matter whether the person engaging in the conduct considers the behavior offensive. Instead, sexual or gender-based conduct is evaluated through the eyes of the victim, and it will be considered harassment if he or she reasonably regards it as offensive.
Here are common situations that may involve sexual harassment that you may not aware of:
- Pinups in the workplace. Pinups containing sexual material (such as centerfolds), can create a hostile work environment. Don't allow these in the workplace.
- Asking a coworker for a date. This by itself is not harassment. But if the person refuses the offer, continued asking can become harassment and should be stopped if a complaint is made.
- Rude treatment of women/men. A supervisor who treats women/men rudely, or who constantly demeans the ability of women/men to perform work, can be guilty of sexual harassment since adverse actions are being taken on account of the employees' gender.
- Verbal abuse and jokes. Comments about a person's appearance or jokes of a sexual nature can constitute harassment if they occur often and are unwelcome. You should make it a policy to stop all types of sexually oriented comments in the workplace.
- Physical contact. Physical harassment may even be seen as touching oneself in front of someone. If it is done in a sexual manner and it makes someone feel uncomfortable, then it can be classified as sexual harassment.
Some important facts to remember about sexual harassment are:
- Both men and women can be victims of sexual harassment.
- Either a man or a woman can be a harasser. According to a Supreme Court decision, illegal sexual harassment may be found even where the victim is the same sex as the harasser.
- The person complaining of sexual harassment does not have to be the person at whom the conduct was directed — it can be someone else who was affected by the conduct.
- Harassment can occur at work, at company-sponsored events, or between coworkers away from work.
- Harassment situations can be peer-against-peer, supervisor-against-employee, or third- party-against employee (such as when a customer or supplier harasses a worker).
- ALL COMPLAINTS MUST BE TAKEN SERIOUSLY.
Customers, vendors, or other third parties can also engage in sexual harassment. If an employee complains that a customer is making unwelcome sexual advances, you are obligated to tell the customer to stop.
What managers can do to prevent workplace sexual harassment
If you, as the business owner or manager, have some degree of control to stop unwelcome sexual behaviors, that harassment can be your problem as well. In fact, judicial interpretation has established that sexual harassment is a form of unlawful discrimination protected under Title VII. Therefore, you have an affirmative duty to maintain a working environment free of harassment.
You may be able to avoid liability by properly communicating and distributing company policy prohibiting sexual harassment and providing complaint procedures. It may be a good idea to set stricter rules against sexual activity in the workplace or between co-workers. And set standards for employees that exceed the minimum limits of workplace behavior allowed by the law.
Back Office Remedies can help you create sexual harassment policies as well as a customized employee handbook. We also offer sexual harassment avoidance training for managers and employees. It’s important to educate your employees to recognize and confront harassment. And managers and supervisors should be educated about the appropriate actions to take to prevent and remedy the misconduct and should be trained to enforce the policy. Contact us today for more information.
Updated on May 8, 2017 11:52