Sexual harassment is a term used to describe a variety of illegal, discriminatory actions—from unwelcome sexual advances to verbal conduct of a sexual nature—that create a hostile or abusive work environment. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as follows: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact 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. (2) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals. (3) 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." But legal experts warn managers and business owners that definitions of sexual harassment extend beyond the above borders. "Most people think that sexual harassment necessarily involves conduct of a sexual nature," wrote Theresa Donahue Egler in HRMagazine. "But, sexual harassment includes conduct that is not overtly sexual but is directed at an individual based on his or her gender. Thus, conduct such as profanity and other rude behavior … may give rise to liability so long as it is based on gender."
Savvy business owners and managers will adopt a proactive stance to make certain that employees know that inappropriate behavior—whether taking the form of displaying sexually explicit photographs, using offensive language, making suggestive or otherwise inappropriate comments, badgering an employee for dates or other interactions outside the workplace, or suggesting that one gender is inferior to another—will not be tolerated in their company. Indeed, firms that do not do so leave themselves open to financial loss via lawsuits as well as other problems (low morale, employee turnover, absenteeism, etc.) that can ultimately affect financial performance. As EEOC guidelines state, "with respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action."
A 1998 U.S. Supreme Court ruling pushed the envelope even further. The Court ruled—under Title VII of the Civil Rights Act of 1964—that an employer can be held liable for sexual harassment even if the employer is unaware of the incident. "The stakes are high and getting higher," concluded Ellen J. Wagner in Sexual Harassment in the Workplace. "In an increasingly litigious society and in an era of ever-increasing employee rights and employer responsibilities, sexual harassment allegations are particularly hazardous." Nation's Business contributors Robert T. Gray and Donald H. Weiss agreed. "All the signs point to sexual harassment becoming a more complex issue in the courts as well as in the workplace, and employers must be ready to respond accordingly," they wrote. "While that response can be prolonged and even difficult, the experts say that the depth of a company's commitment to preventing such conduct can be determined by one step at the moment of the filing of a complaint. That step: Take it seriously."
Sexual harassment has become a subject of considerable discussion during the 1990s. Previous generations of business owners and managers rarely had to address the issue. Business historians and social observers point to several possible factors for this. Some note that women used to comprise a much smaller component of the workforce, and that various societal pressures may have made them less likely to come forward with complaints. Others point out that many of the legal protections that are now in place against harassment have only developed over the last 30 years. Still other observers contend that the rise in sexual harassment claims simply reflects a general decline in civility in American society. Whatever the reasons, sexual harassment complaints have risen steadily in recent years. In fact, the number of sexual harassment claims that were filed with the EEOC increased from 6,883 in 1991 to 15,889 in 1997. "Because an agency complaint is a prerequisite to suit under federal and many state laws, these numbers forecast a corresponding increase in sexual harassment lawsuits in the coming years," wrote Egler. "When it is considered that many more potentially explosive situations are quietly resolved (some at substantial cost) before reaching the complaint stage, it is readily apparent that sexual harassment is a risk that requires proactive management."
But business owners and managers need to make sure that in their zeal to protect the legitimate rights of employees not to be harassed in the workplace, they do not trample on the rights of those accused of misbehavior. "While sexual harassment is clearly a pervasive reality, every case needs to be reviewed on its own merit," said Wagner. "Just because harassment is a significant social and corporate problem does not mean it has in fact occurred in a particular instance." Indeed, an employee who is punished or dismissed on the basis of a frivolous sexual harassment claim has the same recourse to the law as the victim of sexual harassment who is left unprotected by indifferent managers/owners. Business owners and managers thus need to consider the rights of all parties involved when investigating sexual harassment complaints.
Over the past several years, human resource professionals and business consultants alike have pointed to some fundamental changes in sexual harassment demographics. The overwhelming number of employees who are victims of sexual harassment continue to be women, but increasing numbers of men have found themselves targeted as well. From 1990 to 1994, for instance, the number of men who filed sexual harassment complaints with the EEOC tripled. Same-sex harassment charges have been on the rise as well. Observers note that some companies have been slow to treat such complaints as seriously as the more prevalent woman-as-victim, man-as-harasser complaints, with sometimes disastrous financial consequences for the businesses.
Some analysts expect women-as-harasser complaints to continue to rise, as the number of women business owners and executives grows. "Many would say that sexual harassment is nothing but an issue of power—that is, one person exercising power over another and using sex as the tool of power," attorney Gary Oberstein told Industry Week's Michael Verespej. "[Women are now] in a position to see this as a tool, just as men have seen it as a tool for years." Verespej points out, however, that the nature of sexual harassment does seem to vary with the gender of the harasser. 'When a male is the victim of harassment by a female, more than 50% of the cases allege a demand for sex—quid pro quo—in order to retain a job or receive a promotion," he reported. "By contrast, less than 15% of the cases in which a female is the victim of harassment by a male is there a demand for sex; the majority allege a hostile work environment."
The attention given to high-profile sexual harassment cases in the late 1990s has created an increase in other types of harassment cases. For example, employees have brought successful lawsuits against employers charging harassment based on age, AIDS, ethnic group, and activity by a union official. "The prevalence of harassment suits in a variety of contexts indicates an enormous area of potential liability for companies and individuals in supervisory positions," Mary-Kathryn Zachary wrote in an article for Supervision.
Ellen Wagner points out in Sexual Harassment in the Workplace that "a well-drafted, carefully thoughtout policy statement on sexual harassment can be valuable to an organization in at least three major ways: (1) as an employee relations tool, (2) as basic education for both managers and employees on the subject of sexual harassment, and (3) as a way of minimizing legal liability to the organization in hostile-environment sexual harassment cases … Not only is such a policy statement evidence of an organization's good-faith effort to provide a work environment free of harassment but, coupled with a proper investigation that successfully ends illegal or inappropriate conduct, it provides a major offensive weapon in employer efforts to demonstrate that all reasonable steps were taken and that they were effective."
Indeed, business consultants universally counsel both small businesses and multinational corporations to establish formal written policies that make it explicitly clear that no forms of sexual harassment will be tolerated. Some companies prefer to disseminate this information as part of their larger general policy statements because of their sensitivity to giving extra attention to a sometimes awkward subject. But others reason that doing so can effectively bury the company's sexual harassment policies under the weight of all its other statements; these latter business owners and managers claim that dissemination of a separate policy statement not only better informs employees of the policy itself, but also underlines the company's serious approach to the subject.
Whether a business chooses to distribute its policies on sexual harassment via general information sources (such as an employee handbook) or separate statements, its policies should list all the various forms that sexual harassment can take (sexually loaded "compliments," sexual advances, denigration of a person's gender, etc.) and explain how the company proceeds when confronted with a sexual harassment complaint. The policy statement should also discuss possible disciplinary consequences for workers who are found guilty of engaging in harassment. Finally, lawyers and consultants counsel their business clients to make sure that their policy statement is distributed to all employees. As Wagner noted, "the most carefully drafted, best-written policy on sexual harassment is useless if it is not communicated throughout the organization."
Other steps that businesses can take to establish a harassment-free workplace include: establishing internal procedures that address complaints promptly and thoroughly; establishing training programs that educate workers—especially managers, supervisors, and other people wielding power—about components of sexual harassment and their responsibilities when exposed to such behavior; and establishing alternative routes for workers to lodge complaints (in instances where their supervisor is the alleged harasser, for instance).
Legal experts warn businesses that they need to make certain that their policies reflect a true understanding of the legal responsibilities of the employer, and a full recognition of the multitude of forms that sexual harassment can take. They point out that some companies have put together policies that, while sensible and effective in some or even most areas, are flawed in other areas, either because their policies did not adequately cover all the ways in which sexual harassment can occur, or because their understanding of sexual harassment was incomplete from the outset. For example, many people have long operated under the misconception that for sexual harassment to occur, the harasser must have a bad intent. The reality, however, is that "what may be viewed as perfectly harmless by most men, may be viewed as offensive by most women," wrote Egler. "In recognition of gender differences in perception, the courts have developed a new standard for analyzing claims of sexual harassment. In lieu of the traditional gender-neutral reasonable person standard, which is thought to be biased toward the male viewpoint, sexual harassment claims are analyzed in many jurisdictions from the perspective of a reasonable person of the same sex."
Another important factor that is not always sufficiently appreciated by employers is that they can be held liable for harassing conduct by a third party such as a customer or vendor. Egler explained that "even though these people are not employed by, and thus, not under the direction and control of the employer, the employer can be held responsible for harassment of its employees by such third parties." This mostly occurs in instances where the employer does not respond to such situations. Finally, Egler pointed out that some companies have been slow to recognize that "what appears to be a consensual relationship by both parties may be regarded by the subordinate as an unwelcome obligation necessary for the protection of his or her job, whether or not this is actually the case."
As one business attorney told Industry Week, companies "must take every complaint seriously, treat every complaint confidentially, investigate every complaint thoroughly, and take appropriate and immediate disciplinary action." Indeed, employers have a legal duty to investigate such complaints. "The objective of that review is simple," wrote Wagner. "To determine to the extent possible what happened, resolve the situation appropriately, and bring any illegal conduct to an end so that the workplace is once again free of any form of harassment."
Businesses need to make certain that the person who will investigate the complaint has credibility with the workforce. Ideally, the individual will be knowledgeable about the legal dimensions of sexual harassment, experienced in handling employee issues, familiar with the organization's policies, and socially and organizationally distant from both the alleged victim and the alleged harasser (the investigator should not be friends with the alleged victim, nor directly report to the alleged harasser, or vice versa). With smaller companies, however, it can be more difficult to adhere to such guidelines. If a small business owner has only four employees, and two of them become embroiled in a harassment case, finding an investigator with the above qualities is next to impossible. The owner may be tempted to look into the complaint him or herself in such instances, but business advisers often counsel against this. Instead, they recommend that the owner turn to an outside counsel or external consultant to pursue the complaint.
Whether the person doing the investigating is a third party, an employee, or the owner of the business, he or she should have a focused, carefully thought-out investigation plan designed to settle the issue in as timely a fashion as possible. This typically includes a review of relevant organizational records, including the complainant's personnel file, the alleged harasser's personnel file, performance reviews, and promotional and salary records. Such reviews can turn up everything from prior disciplinary warnings aimed at the accused to possibly relevant indications that the involved parties had previously competed against one another for promotions or other job opportunities. Such data may well be completely irrelevant to the legitimacy of the complaint, but it is the investigator's duty to check into all possible aspects of the complaint.
Every claim should be treated seriously, no matter how unusual or seemingly frivolous it might first appear, until an informed decision can be made. Conversely, an investigator should also suspend judgment on complaints that seem obviously legitimate until a thorough investigation has been completed. As Wagner remarked, "when sexual harassment is alleged, defamation is never very far away.… Since sexual harassment investigations almost always involve matters that might go to the heart of a person's reputation and good name, attention must be paid to minimizing the risks of defamation throughout the investigation and once it is concluded."
The first step in an investigation usually involves an in-depth interview of the complainant. Areas that should be pursued during this interview include the cultural background of the complainant (if dramatically different from that of the accused), a detailed reconstruction of the incident(s) that prompted the complaint, the context and circumstances in which it occurred, the involved parties' prior relationship (if any), the nature of the allegations against each individual in instances where incidents involved the participation of more than one person (common in hostile workplace complaints), and the complainant's expectations regarding how the alleged offender should be disciplined.
The investigation then turns to getting the accused's account of events. This step has different nuances, depending on whether the alleged harasser is a supervisor, a coworker, or a third party such as a customer, but basically this part of the investigation aims to secure the accused's perspective. In some instances, the accused may appear angry or shocked when confronted with a sexual harassment charge, so the investigator needs to allow time for the return of some measure of emotional equilibrium. When the initial reaction has subsided, wrote Wagner, the investigator should ask the worker to relate "what he believed happened during the incidents the complainant has cited. Allow him to relate his understanding of the situation through once, then return to it for specific, step-by-step review. As with the complainant, make sure the discussion is specific and detailed enough to provide the information you need to make an informed judgment later on. Note dates, times, places, circumstances, dress, words exchanged, as well as the specifics of the alleged acts." Again, issues such as prevailing work environment, prior relationships, etc., should be discussed.
Once the investigator has finished gathering information from the principal parties, he or she should then turn to possible witnesses. These could range from coworkers who were present when the alleged incident took place to those who have relevant information about either or both of the parties involved. The investigator should not be concerned with unsubstantiated rumors at this juncture; rather, he or she should concentrate on gathering factual data. This can be a very important part of the investigation, for accusations that turn into basic "he said, she said" disputes can be profoundly difficult for employers to resolve. "Immediate action may be difficult when an employer is faced with unsubstantiated accusation on one side and a categorical denial on the other," wrote Gray and Weiss. "In such cases, [attorney Stephen] Bokat says, it is important to realize that 'these things tend not to occur in isolation. If there has been harassment, often someone else has seen or heard the conduct or speech involved or there will be repetitions that will indicate a pattern.'"
Employers need to interview these witnesses carefully, however. "You must assess the credibility and believability of all persons corroborating some aspect of the complainant's or accused's contention," confirmed Wagner. "Consider the issue of witness motivation and the relationship between each witness and the individual whose word is being corroborated. Make sure you understand what each witness might stand to gain from the situation, as well as what genuine feelings are at work here." Witnesses also need to understand that the subject should not be discussed with coworkers or other individuals; sexual harassment charges are both serious and sensitive, and they should be regarded as such.
Human resources experts also recommend that investigators not rely wholly on interviews. Ideally, the investigator should secure written statements from all parties—complainant, accused, and witnesses—as part of this information-gathering process.
Once the investigation into the sexual harassment complaint has been completed, corrective action (if any) needs to be implemented. When corrective action is warranted, it can range from counseling to transfer to dismissal. The key factors that usually determine the severity of the corrective action are: (1) the nature of the offense, (2) the desires of the complainant, and (3) the impact that the incident had on the workplace as a whole.
Self-employed individuals who work as independent contractors enjoy fewer legal protections from sexual harassment at the hands of clients. Experts recommend that self-employed people confronted with such unpleasantness react strongly and decisively. They should make it immediately clear that the harassment (which in these situations typically takes the form of unwanted sexual advances) is unwelcome, and that they would prefer to keep their association with their client a professional one. If this line of defense does not work, self-employed workers may wish to consult an attorney about their state's tort law, which regulates conduct between people and provides monetary damages. In addition, national women's organizations can often provide guidance and legal assistance in these matters. Finally, some observers believe that additional legal protections in this area may be on the way. They point out, for instance, that a bill has been introduced in California that would expressly prohibit sexual harassment against self-employed individuals providing contracted-for services. Violators of this proposed bill would be subject to considerable damages.
The confusing array of rules about sexual harassment—as well as the threat of expensive litigation—was having a negative effect on the culture of some companies by the late 1990s. Some employers created repressive working environments in which employees were reluctant to tell jokes or pat each other on the back, let alone enter into romantic relationships, for fear of violating company policies about sexual harassment.
Many companies willingly spend thousands of dollars each year to train employees about sexual harassment in order to avoid the potential for million-dollar lawsuits later. In fact, an entire industry has grown up to assist companies in training workers to avoid inappropriate behavior and compromising situations. The lawyers, consultants, and therapists working in this field help companies to interpret ever-changing legal pronouncements on the issue and adapt their policies accordingly. "In fearful executive suites around the nation, this vast new antiharassment industrial complex has found a ready market for a host of products and services that promise not simply to resolve but to prevent harassment, and, indeed, the conditions that give rise to it," according to an article in U.S. News and World Report.
Some experts have claimed that it is possible to take company policies about sexual harassment too far. After all, only 4 percent of companies have experienced sexual harassment lawsuits over the past five years, according to a 1998 survey conducted by the Society for Human Resource Management. It is important to weigh the risk of lawsuits against the negative effect of excessively strict or invasive policies that may make it difficult to attract and retain qualified employees. "Corporate America is advancing into the treacherous territory of establishing rules, procedures, and guidelines that, in the name of preventing harassment, also establish a framework for romance," according to U.S. News and World Report.
It can be extremely difficult for employers to discourage or control romantic relationships between employees. After all, from six to eight million Americans enter into workplace romances each year. Some companies try to ban such behavior, particularly between supervisors and subordinates. But this approach can backfire. If a company terminates one employee for a romantic involvement with a coworker, and then that employee discovers that another employee had engaged in similar behavior and had not been fired, then the company may be subject to a lawsuit for wrongful termination rather than sexual harassment.
In recent years, some companies have developed innovative new ways to allow workplace romance while also protecting themselves against sexual harassment litigation. One example is a date-and-tell policy, which generally applies to supervisor-subordinate relationships. Upon entering into a romantic relationship with a subordinate, the supervisor is required to tell a designated person. This person then advises the subordinate of his or her rights under sexual harassment laws. In this way, the employer gains some protection from knowing that the relationship is consensual. Another example is a love contract, which often applies to a top executive or someone who has a sexual harassment complaint pending already. The contract documents the relationship and gives the company some measure of protection from litigation.
SEE ALSO : Gender Discrimination
[ Kevin Hillstrom ,
updated by Laurie Collier Hillstrom ]
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