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| Sexual Harassment: Frequently Asked QuestionsAnn Lehman wrote this in 1996, while working for the City & County of San Francisco, Department on the Status of Women. Sadly not much as changed with all the new #MeToo stories. This should, however, still be helpful to those in the workforce.
1. Introduction 2. Commonly Asked Questions
3. Non-Supervisory Employees
4. Supervisor Section
The social and economic costs of sexual harassment are tremendous. Individuals who experience sexual harassment suffer psychologically, physically and emotionally. Managers regularly report that workplace morale is severely and negatively affected and collegiality is also injured when an incident occurs. A 1995 U. S. Merit Systems Protection Board study conservatively calculated the cost of lost productivity due to sexual harassment to be $80/annually per federal employee. This does not include investigation or litigation costs. One lawsuit, even if the employer wins, can cost hundreds of thousands of dollars. Every employee has the right to work in a safe environment free of discrimination, including sexual harassment. Sexual harassment is prohibited by local ordinance as well as state and federal law. Sexual harassment is unacceptable and should not be tolerated in the workplace. It should be the policy of all employers to provide a workplace in which all individuals are treated professional with respect and dignity. Everyone should recognize that the elimination of sexual harassment in the workplace will create a better work environment, increase productivity, and improve relationships for all employees. 2. Commonly Asked Questions The following questions and answers address issues which concern all employees, supervisory and non-supervisory. What is Sexual Harassment? Sexual Harassment consists of any unwelcome conduct of a sexual nature which: (1) is made a condition of employment or promotion (quid pro quo). For example, when a supervisor states that a subordinate will not receive a raise unless she goes out on a date with him or her;
or
(2) is severe or pervasive enough to affect the person's work environment (hostile work environment). On most occasions a hostile environment requires a showing of a pattern of offensive conduct. However, there are occasions, especially with severe incidents, where a single incident may create a hostile environment. Some things that can be considered in determining whether there is a hostile environment are the frequency or pervasiveness of the conduct, whether the conduct was verbal or physical, whether the conduct was hostile or patently offensive, whether the harasser was a co-worker or supervisor. Note: the conduct can be unwelcome even if the employee does not specifically demand that the conduct stop.The determination of whether conduct is sexual harassment depends on the specific facts and context of the situation. Sexual harassment can occur between coworkers, between workers of the same sex, between the general public or clients and an employee. Sexual harassment may be very subtle and can be in the form of physical, verbal, and/or visual harassment. Examples ofbehavior which may constitute sexual harassment include but are not limited to: Acts from male to female, female to male and between or among individuals of the same sex which are sexual in nature and unwelcome sexual harassment may be directed against a particular person, persons or group.
Verbal behavior which is sexual in nature and unwelcome, e.g., epithets, jokes, comments or slurs, repeated requests for dates which are unwelcome. Nonverbal behavior which is sexual in nature and unwelcome, e.g., staring, leering, lewd gestures. Physical conduct which is sexual in nature and unwelcome, e.g., assaults, sexual advances such as touching, patting, or pinching, impeding or blocking, movement or any physical interference with normal work or movement; Visuals which are sexual in nature and unwelcome, e.g., posters or signs, letters, poems, graffiti, faxes, cartoons or drawings, pictures, calendars, electronic mail and computer programs. What is prohibited retaliation? Retaliation occurs when someone makes a good faith complaint or report of sexual harassment, or participates or aids in an investigation of sexual harassment and is then treated negatively by his or her employer because of his or her complaint or report. Reprisal conduct may take the following forms:
Even if you have already filed a sexual harassment complaint you also have the right to file a separate complaint for retaliation. Why is sexual harassment such a problem? Sexual harassment is an issue that affects all of us at the workplace, when it occurs. Many individuals who experience sexual harassment suffer physically and psychologically from the harassment. Many are forced to quit their jobs or take sick leave to escape from the harassment. Turnover is expensive, as are investigations and lawsuits. Not only is the individual harmed, but all of his or her coworkers are harmed either by the pervasive feeling that one cannot get ahead in the workplace without giving sexual favors or by creating an environment where co-workers are forced to tolerate offensive conduct and their work suffers. Reported sexual harassment greatly underrepresents the extent of the difficulty because most individuals are afraid to report the harassment. A recent federal study indicates that sexual harassment is pervasive, especially amongst coworkers but that only 6% of the individuals who experience sexual harassment file a formal complaint. The very real fear of retaliation or being labeled a troublemaker keeps many individuals from reporting an incident and the fear offending the harasser, who is either a boss or a colleague, keeps the great majority of both men and women from directly confronting the harasser. California and federal courts have sent a clear message that sexual harassment should not be tolerated and that employers must take positive steps to prevent sexual harassment from occurring. An employer who knows of the sexual harassment of an employee and does not take prompt, appropriate action will be held responsible for the harassment. Likewise, even if an employer does not know of the harassment, but should have known, the employer will be held responsible. Therefore, all employers and supervisors have a responsibility to prevent sexual harassment from occurring. What is the reality behind the myths? Following is a list of myths and their corresponding realities. Myths about sexual harassment are based on prevailing attitudes and stereotypes about sex, sexuality and other compounding factors such as age, race, sexual orientation and disability. Myths about sexual harassment deny the harmful nature of its conduct. They shift the blame to the victim and obscure the motivation of the harasser which is to achieve power and control over the person harassed. Myth: Sexual harassment is simply an expression of sexual desire. Myth: It's no big deal if a person is harassed; it's all done in "good fun." 3. Nonsupervisory Employees The following questions and answers address many concerns primarily experienced by nonsupervisory employees. What can I do if I am being sexually harassed? While each person needs to decide what action plan works best for him or herself, many individuals have found informal action facilitates the fastest resolution with the fewest complications. You can start with telling the person involved to stop the behavior. Try to be as clear as possible. For example, "It makes me uncomfortable when you rub my shoulders, please do not do this." If this does not work, you should consider putting it in writing, and tell the person what conduct you find offensive and what action you will take if it continues. For instance, "I find your sexual jokes offensive. I consider these to be sexual harassment and I will file a complaint if you continue to tell them to me." Date and sign the letter, keep a copy and have a witness watch you give it the offender. If none of the above works, tell your supervisor (unless he or she is the offender) or a human resource person in your organization (i.e., file a complaint). Check to see if your organization has a mediation or informal complaint resolution process. Cooperate with any investigation and document all that has happened. What are my options if I want to file a sexual harassment complaint? Your first option should be to complain to your supervisor, another supervisor or human resource personnel. Many employee organizations have a grievance procedure which deals with sexual harassment. Inquire with your union representative for details. Some internal complaint procedures have timelines. Check your organization's sexual harassment policies. YOU MAY ALSO COMPLAIN TO With any incident of sexual harassment, it is important to document the behavior by noting:
If I file a complaint, everyone at work will know and I don't want to deal with that. What can I do? Often employees just want the behavior to stop and do not want to make a big deal about the incident. Typically, the matter is settled informally through discussion, training, mediation. Privacy of all parties involved is to be maintained to the highest decree possible by investigators, managers, supervisors, and coworkers throughout the entire complaint procedure (no matter what avenue you choose to file with). However, many people who file sexual harassment complaints do experience frustration and anger when knowledge of their complaint procedures leaked to people in the workplace. This information in the office "rumor mill" creates an unsatisfactory work environment for the complainant. While you can do your part by not participating in these types of rumors your manner or supervisor can also assist in addressing such issues. For example, it may be possible for your supervisor to intervene and address specific individuals regarding their participation in the rumor mill. If the rumors persist, they may be considered retaliatory and may provide a basis for another complaint to be filed. Also, your individual health provider program may provide support services to individuals like counseling or support groups. Yes, co-workers and supervisors can give compliments to their colleagues in the workplace. Telling someone they look good today or complimenting a new piece of clothing is generally considered fine. It is inappropriate if it is accompanied by a leering stare and/or a whistle, is continually given to only one particular person or is accompanied by a sexualized innuendo or behavior. Any of these may be experienced as sexual harassment. Examples of inappropriate comments which could be considered sexual harassment are:
Consensual dating at work is permissible. While it is ok to date someone from work, awkward situations can occur. For example, if the relationship fails and you are still forced to work with this person on a daily/regular basis, work-related interactions could become negatively affected by the failed relationship. Work performance could suffer. Frequently, the impact of the failed relationship is felt by other co-workers also, having implications beyond the lives of the two individuals involved. Consensual dating of a supervisor is also permissible but is never advisable. Such relationships often give the perception (at least) of a conflict of interest and that the supervisor is "playing favorites." To counter this perception, supervisors have been known to over compensate by giving too much work, for example, to his/her partner thus treating the partner unfairly. Also, employees who have dated their supervisors report that coworkers tend to discredit the valuable and legitimate goals which an individual has achieved because they simply perceive that success was gained only with the aide of the supervisor's favoritism. Because the implications are great and the potential complexities are many, dating in the workplace should only be done after careful consideration of the potential problems. If you are dating someone you work for or with, you may want to consider requesting a transfer. If I am asked out on a date and I don't want to go, how do I say no without hurting his or her feelings? Giving a clear message of "no" does not have to be rude, disrespectful or mean. Clear and concise communication to coworkers and supervisors about what is and is not acceptable behavior is a key component to stopping sexual harassment from occurring in the workplace. It is particularly important to send a clear "no" message because unclear or neutral responses can send mixed signals. For example, if you do not want to join someone for a lunch date, say that you are not interested in going, out with him or her, rather than saying, "No, not today" or "Maybe some other time." To someone who is "in pursuit" these ambivalent responses could be considered encouragement to try again in the future and are not likely to stop the unwelcome invitations. Some examples of how to turn down a request for a date are:
If you are unclear in your communications the following, two scenarios may occur. I'm not sure if he or she really means maybe or if he or she really means no. What am I supposed to do? Because many people feel uncomfortable clearly stating what they need or want, often their needs or desires are expressed nonverbally. Being sensitive and perceptive to nonverbal communication can avoid many difficult situations and will provide a workplace which is respectful to all. For example, if you ask a coworker out and she or he does not clearly communicate a definitive yes or no answer, it is important for you to be aware of the nonverbal communication she or he is sending. Nonverbal clues could be:
Similarly, if these behaviors are accompanied by verbal communication which is unclear, this may be a good indication that she or he is not interested in dating. Examples of unclear, passive, verbal behavior are words such as: maybe, I guess, I think I'm busy, you know, later, some other time. These passive words may all indicate a desire to say "no" without hurting your feelings. It is the responsibility of every employee to be sensitive to and aware of the verbal and nonverbal behaviors of his or her coworkers, especially as it pertains to dating in the workplace. The diversity of today's work force and the variety of cultures represented make it necessary to be aware of and attempt to understand all forms of communication. He or she never told me he or she didn't like my comment (gesture, hug, etc.), why not? There are many reasons why individuals do not speak up against offensive behavior. Many individuals who experience sexual harassment in the workplace are understandably uncomfortable telling someone their behavior is objectionable. Think how often you yourself have told someone that you don't like their comments or attention. Study after study demonstrates that most individuals resist complaining about sexual harassment. Cultural or ethnic experiences that create traditions of silence and avoidance often dictate how an individual deals with an awkward or undesirable situation. He or she might also fear the risk of being thought of differently, unfriendly, ill-humored or labeled a "bad sport" or a "trouble maker." For many people their desire to be liked and not make waves outweighs their ability to speak out about objectionable behavior. He or she just can't take a joke. Sexual harassment is no joke because it is, by definition, unwelcome attention. Comments that are made at the expense or embarrassment of another are not funny. The culturally acceptable standards of what is offensive and what is just a joke have changed. Many more women are in the workforce in new and different capacities than ever before. Because sexual jokes may have been accepted by some female or male employees in the past doesn't mean that every female or male employee will think they are funny now or in the future. It is quite possible that a sexual joke will be considered humorous to one woman or man and will be offensive and considered sexual harassment to a different woman or man. While not easy, we all need to respond and adapt to these chances. The best avenue is to apologize for your joke and not repeat the behavior I am a female and my boss continously yells at me, is late to meetings, provides no follow through, demands too much work and/or is unreasonable. Is this sexual harassment? Not usually. While these are certainly examples of bad management styles which need desperately to be addressed by human resource personnel or your union grievance procedure, they do not constitute sexual harassment unless they are based on your sex or are unwelcome sexual comments or conduct. Even if there are no witnesses, the organization should conduct an investigation and talk to the people involved. In some cases, a finding of harassment may be based solely on the credibility of the complainant's allegation. 4. Supervisor Section The following questions and answers address many issues which will need to be addressed primarily by supervisors and managers. Can consensual sexual relations between a supervisor and his or her subordinate be considered sexual harassment? Yes. While a consensual sexual relationship between a supervisor and a subordinate is not prohibited, it will always have consequences, some of which can be considered sexual harassment. (Some companies outright prohibit these types of relationship - check your company policy.) It is important and professional that managers and supervisors maintain high standards of fairness and impartiality in their supervision of employees. These standards may be compromised, or at least the appearance of neutrality will be compromised, if a manager engages in a sexual relationship with a subordinate. It is difficult to give an impartial performance appraisal to someone with whom you are involved in a sexual relationship. Moreover, if the relationship between the supervisor and the employee ends or creates a hostile environment for others, then it may form the basis upon which a sexual harassment complaint can be filed. For professional reasons, these relationships should be avoided and, if one occurs, both individuals may want to consider the possibility of transfer. What can I do to prevent sexual harassment in my workplace?
What should I do to help the complaining employee? Ensure the employee that you appreciate the knowledge regarding any problems and that you will ensure appropriate follow-up. Explain whatever options the individual may have (formal investigations and reporting, informal handling of the matter and mediation). The complaining employee should be informed of resources such as counseling that may be available to him or her. All complainants should be made aware that retaliation of any form against the complainant will not be tolerated and will be subject to discipline. You should periodically check with the complainant employee to ensure that the harassment has ceased and that no retaliation has ensued. Explain to him or her that his or her privacy will be respected but do not guarantee complete confidentiality. Document, document, document. The importance of this employer's responsibility cannot be overemphasized. You should document your conversations with the parties involved in the complaint, keep any evidence of harassment and make this evidence available to investigators, and document what actions you took to resolve the harassment situation, if any. Document what you witness, what you did, what you said and who witnessed any conversations or behavior. If you are ever called upon later to defend your actions, it is important that you can demonstrate you took appropriate action. Also encourage the complainant to document all incidents of harassment and to make those records available to investigators. What are possible disciplinary actions I can take against the harasser? The spectrum of disciplinary actions ranges from reprimand to permanent dismissal, check your company policy's list. Managers/supervisors should be aware that the implementation of discipline could cause other employees to become angry or resentful. While disciplining someone under these hostile conditions may be difficult, it is absolutely appropriate and necessary. A very clear "zero tolerance" message must be sent to all employees. Eventually all parties will understand that sexual harassment conduct is not permissible. What should I do if an employee is being sexually harassed by the public, clients, or vendors? Managers and supervisors are also responsible for ensuring that their employees are not sexually harassed by the public, clients, or vendors. All managers and supervisors should inform their employees that such conduct will not be tolerated and that they should immediately report any sexual harassment from the public, clients, or vendors. It may be necessary for you to have a conversation with the offender informing him or her that his or her behavior is unacceptable. You may need to:
If the harassment is from a customer, you must still take appropriate action within your control to ensure that the offensive behavior stops. Can, or should I protect the privacy of the complainant and/or alleged harasser? You cannot guarantee complete confidentiality. Employees have a right to privacy regarding personal information. Managers and supervisors should respect the privacy of all parties concerned in a sexual harassment allegation. If you are reviewing a sexual harassment allegation, only involve those persons who can provide relevant information to determine the facts regarding the alleged conduct. Advise persons who must be involved in the review that it is necessary that the privacy of any and all parties must be honored. Set an example and put a stop to office rumors, innuendo and accusations. What is unprofessional vs. illegal sexual harassment? The legal grounds for committing sexual harassment are quite rigorous. Severe or pervasive unwelcome sexual conduct; hostile environment is an atmosphere that is filled with sexual innuendo, abuse or insults. Is every single sexual joke by itself illegal? Probably not; is it unprofessional? YES. Unprofessional conduct is defined as disrespectful, inconsiderate, or impolite behavior. While not every single off-colored statement is illegal, they are all unprofessional and do not belong in the workplace. Why should prevention include putting a stop to unprofessional behavior? Unprofessional behavior, while legal, leads to many problems including sexual harassment. If unprofessional behavior is ignored or allowed to flourish it can easily get out of hand. While one off colored remark may not meet the legal definition of sexual harassment it is rare that one remark comes alone. If others see that it is tolerated they may well assume that they too can participate in this type of behavior. One remark leads to another and soon the organization is filled with sexual innuendo, abuse or insults. The purpose of prevention is to stop the behavior before it reaches this point. How do you stop unprofessional behavior? Most individuals understand what it means to be both professional and respectful (and if they don't should be trained accordingly!). Don't wait until the behavior gets out of hand and a potential complaint is filed. Your job as a supervisor is to prevent harassment from ever happening by being vigilant in maintaining a professional, respectful atmosphere for everyone. It is much easier to say to someone who has just acted unprofessionally to "knock it off," or "that type of behavior is unprofessional and not acceptable in our organization," than it is to say later, "Your behavior constitutes sexual harassment." Practice prevention and stop unprofessional behavior from ever rising to the level of sexual harassment or any other type of harassment. How can you change the historic culture in an organizational department that some may think is sexist? To quote from a famous folksinger, Bob Dylan, "The times they are a-changin'." For years, many job sites were segregated by sex. The men could be men and the women could be women is no longer true of our workforce. Women are in every single occupation in greater and greater numbers and, if not there today, will be there tomorrow. This means the rules of the game have changed. What was acceptable ten to twenty years ago is no longer acceptable today. Everyone must act more professionally at the work site, today. That includes construction sites, locker rooms, lunch halls, when traveling, and in the office. Even when advertisers spend billions to make us act and feel sexy, sex at work is unprofessional. This is difficult for some to accept, and while it's understandable why some employees feel this way, it is no longer tolerable. Set up programs that create a fair and respectful workplace. Examples might include the following:
If your staff is ignoring/shunning someone who has complained, what can you do about it? This could be considered retaliation and be a basis of a second complaint. These situations are always difficult. Call your human resources specialist to help deal with this situation. Shunning and rumors create a very unacceptable work environment. Have the manager involved intervene, with the help of a specialist if necessary, and address the specific individuals regarding their participation in the ignoring/shunning. This needs to be done tactfully so that the privacy of the individuals involved is not violated. Employees need to be told they don't need to be best friends but they do need to work together in a professional and respectful manner. If someone tells you he or she is having a problem with another employee and wants it to be confidential, what should you do? Sexual harassment problems are like any other problem an employee might bring up. Once an employee has a dilemma, you have a professional obligation to do something about it. You also have a legal obligation if it involves potential discriminatory harassment. You can not guarantee complete confidentiality to anyone in solving office difficulties, but you can explain to him or her that his or her privacy will be respected to the extent possible. You should tell the employee that only those persons that can provide relevant and pertinent information will be contacted, that each person contacted will be told to honor the privacy of everyone involved and that rumors and innuendoes will not be tolerated. Not every problem necessitates a formal investigation, but every problem needs to be resolved. Communication issues and personality conflicts can often be resolved informally. If, however, you have any doubts about the nature of this employee's problem (i.e., is it sexual harassment or other possible discriminatory behavior?), you would call for expert council from EEO specialists, personnel advisors, human resource specialists, harassment experts, or lawyers, and follow your organizations policy for reporting potential discriminatory behavior. It is not illegal to flirt at work; the law does not require a sterile work environment with no human interaction. What is expected and necessary in our diverse community is professionalism, respectful behavior, and at times, awareness of how our behavior affects others. A supervisor who flirts with his or her subordinates would not be acting professionally, whether or not his or her attentions were appreciated. This could cause some employees to feel uncomfortable and/or not take this supervisor seriously and that would be problematic. If you would like to reprint this information, please see our reprint policy. | |||||
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This information is not legal advice; if you have legal questions, consult an attorney.