Sexual harassment is a specific type of workplace discrimination based on sex . It includes: unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature in which submission to or rejection of such conduct explicitly or implicitly affects and individual’s work or creates an intimidating, hostile, or offensive work environment.
Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from sexual harassment, making illegal to discriminate against someone on the basis of sex, among others facts.
The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Most states have rules that protect individuals from sexual harassment too. For instance, The New Jersey Law Against Discrimination (N.J.S.A. 10:5-12) (LAD) makes it unlawful to subject people to differential treatment based on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status. Whereas, the Rule 202 of the Pennsylvania code prohibits discrimination and harassment because of race, color, sex, sexual orientation, national origin, age, disability or religion.
Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
There are different types of sexual harassment recognized by the United States Supreme Court and the EEOC. The two most common types of sexual harassment are:
- Quid pro quo– Quid pro quo sexual harassment occurs when a beneficial condition of employment is premised upon an employee’s submission to sexual advances. Frequently, that claim is also raised when an employee rejects a sexual advance, and claims a connection between that rejection and a subsequent adverse job action. That action might be a denial of a raise or promotion, a termination, or a “constructive discharge” where an employee claims that the retaliation made his or her job conditions intolerable. This type of harassment is less common.
- Hostile environment– When unwelcome, severe and persistent sexual conduct on the part of a perpetrator creates an uncomfortable and hostile environment (e.g., jokes, lewd postures, leering, inappropriate touching, rape, etc.). This type of harassment constitutes up to 95% of all sexual harassment cases. However, there is no clear definition of “hostile environment workplace”. It can occur where jokes, suggestive remarks, physical interference with movement (such as blocking one’s path), pictures, cartoons, or sexually derogatory comments alter the circumstances of the workplace. Generally, repeated conduct is required to prove a hostile work environment, and a “stray comment” has been held not to alter the working conditions sufficiently to create a cause of action. However, some comments or conduct can be so severe that a single incident can create liability.
Research into sexual harassment provide that that there are a variety of circumstances involved in a case of sexual harassment:
- Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
- The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
The Equal Employment Opportuniy Commission, received 6,862 charges of workplace sexual harassment in 2014, a number that has been fairly stagnant over the past few years. 17.5% of it, are charges filed by males.
According to the United States Department of Justice, only approximately 30% of sexual assault cases are reported to authorities. Though a significant number of Americans are victims of sexual harassment in the workplace, many don’t report it out of fear of retaliation, worries their co-workers will make them feel ashamed by the experience and other concerns.
Suffering harassment at the workplace not only affects the person’s ability to work but creates emotional distress and physical reactions. The most common ones are:
- Poor concentration at work
- Stress on personal relationships
- Debilitating depression
- Sleep/weight problems
- Alcohol or drug use
- Staff turnover
- Increased absenteeism
- Tarnished company reputation
- Increased payouts for sick leave and medical benefits
- Vulnerability to hostile confrontations
- Legal and consultant costs
- Lower staff productivity
- Poor staff morale
- Less teamwork
Employers have the obligation to act if a sexual harassment incident occurs. An important component of harassment prevention is the creation and dissemination of a sexual harassment prohibition policy and reporting procedure. This policy is critical because under federal case law, an employer fulfills its obligation if it takes all reasonable steps to prevent harassment before it occurs, and to take effective steps to remedy harassment after it takes place. If an employer demonstrates those attempts at prevention and remediation, it might not be found liable for the act of harassment itself.
Elements of a proper sexual harassment policy are the following:
A policy statement. This is a document that prescribes acceptable methods or behaviors. It should set forth a broad definition of sexual harassment. It must ban all behavior that has the purpose or effect of unreasonably interfering with an individual’s work performance, or creating an intimidating, hostile, or offensive work environment. It should make clear that submission to any type of that conduct cannot be made, explicitly or implicitly, a term or condition of employment, or used as a basis for any employment decisions. It must be a non-retaliation policy, meaning that the company must practice and protect complainants and witnesses from any retaliation from any source as a result of initiating or supporting a sexual harassment allegation. It is important that it designates several appropriate individuals authorized to receive the harassment complaint. This will prevent the situation in which the alleged harasser is the person to whom the complaint would logically be addressed.
Specific procedures for prevention. The policy should make sexual harassment a disciplinary offense, and reserve the right to terminate an employee found in that conduct. It is recommended to establish training programs in sexual harassment prevention,
Urge employees to raise and resolve their concerns at an early stage: The policy must actively encourage victims of sexual harassment to report the behavior.
Once a complaint is arisen, employers must establish a formal investigative process to find out more about the facts. This might include interviewing the complainant, the alleged harasser and any possible witnesses. If the investigation finds that sexual harassment has occurred, some level of formal sanctions should be imposed. The range of sanctions could include a written reprimand, removal of management authority or duties, suspension, or termination; the proper remedy has to be determined on a case-by-case basis.
If you think you have been a victim of sexual harassment, the following actions may help, though you should contact one of our employment attorneys so that we can advise you further. Depending on the specific situation, other action may be more prudent:
- Say “no” clearly: Express verbally that behavior must stop.
- Document the harassment: Keep a written log, keep track of dates, times, and behavior.
- Look for co-workers that can act as witness of your situation at work.
- Talk to the individuals authorized to receive the harassment complaint in your company. They can be your supervisor, the Human Resources manager, the director or even the president. They should know about your situation and take immediate action. It is highly recommend it to write them about the incident/incidents and keep a copy for your records.
- Use e-mail to document your concerns where possible.
- Call us to receive a free assessment on your case.