Preventing Sexual Harassment in the Workplace

What is Harassment?

What is Included? 

• Dirty jokes and lewd language 
• Sexual content posted on walls or a computer screen.
• Quid pro quo sexual harassment
• Sexual favoritism
• Leering suggestive looks
• Inappropriate touching, unwelcome physical proximity, or blocking or impeding someone's movement,
• Denied promotions or pay raises because of gender or sexual orientation.
• Unwelcome phone calls, e-mails, or text messages.
• Unwanted touching, scratching a co-worker's back, or wrapping one's arms around a coworker's waist, or interfering with that person's ability to move, or any other unwanted bodily contact.
• Unwanted flirting, asking for dates that are repeatedly turned down
• Sending or posting e-mails or pictures of a sexual or other harassing nature.
• Displaying objects, pictures, or posters that are sexually suggestive.
• Playing music that's sexually suggestive.
• Displaying sexually suggestive objects or pictures that are unwelcome
• Making repeated and unwanted advances to a coworker.

Impact of Harassment

Title VII of the Civil Rights Act of 1964

• to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation terms, conditions, or privileges of employment because of such individual's race, color, religion, sex or national origin or
• to limit, segregate or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the status as an employee because of race, color, religion, sex, or national origin.  again based on all of those different factors.

Forbids discrimination including:

• Hiring and firing
• Compensation, assignment, or classification of employees
• Transfers, promotion, layoff or recall
• Job advertisements
• Recruitment
• Testing,
• Use of company facilities
• Fringe benefits
• Pay, retirement plans, and disability leave
• Other terms and conditions of employment.

Title VII Key Points

• Title VII is a federal law that was enacted in 1964 to curb incidences of workplace discrimination in the United States
• Classes protected under Title VII are race, color, religion, sex (including pregnancy), national origin, and genetic information
• Employers by Title VII are those with business ventures that employ at least 15 employees in a year, regardless of whether government- or private-owned 
• Title VII protects any worker and applicant who is working or applying for a Title VII-covered employer in any area in which the United States has jurisdiction over
• The United States Equal Employment Opportunity Commission (EEOC) is the federal agency that is mandated to enforce federal laws that make it illegal to discriminate against employees and applicants, like Title VII

Sexual Harassment in Detail

Background

Causes of Sexual Harassment 

Types of Sexual Harassment

Quid pro quo harassment. An employee is subject to quid pro quo harassment when a term of employment is conditioned upon accepting unwelcome advances of a sexual nature. Quid pro quo (meaning "something for nothing") is conditioning a job or a promotion on an applicant's or an employee's submission to sexual advances or other conduct based on sex. So this occurs when a supervisor's request for sexual favors or other sexual conduct results in a tangible job action. For example, "I'll give you the promotion if you sleep with me," or, "I'll fire you unless you go out with me."

Hostile work environment. In a hostile work environment claim, the employee must show that unwelcome comments or actions based on sex were severe or pervasive enough to interfere with work performance or created an intimidating, hostile, or offensive work environment. This occurs when an employee is subject to unwelcome physical or verbal conduct.

Again, the hostile work environment is so severe, so pervasive, that it creates this abusive work environment. While quid pro quo is pretty straightforward, the hostile work environment claims can be tougher to detect. We have to question what types of behaviors really qualify as harassment, and how much is enough to qualify as harassment.

Types of Inappropriate Conduct

Some workplace conduct is clearly sexual harassment. 

Those clear examples are: 

• Unwanted kissing
• Touching of breasts or genitals
• Butt slapping
• Rape
• Sexual Assault
• Requests for sexual favors
• Sexually suggestive comments
• Uninvited massages
• Sexually suggestive gestures including catcalls, ogling, or cornering someone in a tight space, 

While overt forms of sexual harassment certainly still happen in the workplace, more subtle forms are on the rise. For example, any of the following actions can also be considered sexual harassment if they're happening often enough, or are severe enough to make that employee uncomfortable, intimidated, or distracted enough to interfere with their work:

• Repeated compliments of an employee’s appearance
• Commenting on the attractiveness of others in front of an employee
• Discussing one’s sex life in front of an employee
• Asking an employee about his or her sex life
• Circulating nude photos in the workplace
• Making sexual jokes
• Sending sexually suggestive text messages or emails
• Leaving unwanted gifts of a sexual or romantic nature
• Spreading sexual rumors about an employee
• Repeated hugs or other unwanted touching

Sexual Harassment by a Supervisor

• Inappropriately leaning too close to you at your desk
• Unwelcome touching
• Inappropriate language dirty jokes 
• Consistently asking you, "What do you do with your evening?" "What did you do over the weekend?"
• Phoning you or emailing you at home, or off-hours 
• Quid pro quo, expecting something in exchange for a promotion or pay raise
• Overtly asking you out on dates

 Some of this is sexual harassment and some of it may not be sexual harassment. You have to obviously look at each case.

Unwanted Sexual Advances 

• Pressure to "hang out" outside of work
• A pattern of come-on, or flirting 
• Comments about your looks or your body
• Sexually suggestive language
• Flowers, cards, or gifts 
• Promises of job perks
• Fondling, hugging, inappropriate touching
• Advances outside of the workplace.

Perhaps the advances continued even after you told the person that you weren't interested. Perhaps you don't even know how to discourage the behavior. Maybe you don't want to get the person in trouble or fear that you will lose your job. Perhaps you've experienced threats or retaliation for refusing advances.

Sexual Assault

• Kissing you against your will
• Lifting your skirt or your shirt, or unbuttoning your blouse or pants
• Groping your breasts or your backside
• Placing hands down the front or the back of pants
• Pressing against you or pulling you onto their lap
• Holding your arms, or blocking your escape.
• Disrobing or exposure by the harasser.
• Forcing or coercing you to perform or view a sex act.

Sometimes sexual assaults are fueled by alcohol in after-hours scenarios, but very often, assaults are committed in the workplace by harassers who chose their victims and choose their moments.

Inappropriate Touching

• Groping or grabbing
• Caresses or massages
• Brushing against you
• Hugging
• Kisses anywhere on your body
• Sitting or standing uncomfortably close to you
• Hovering over you while you're trying to do your work.

Sexual harassers get a sense of power or thrill from this kind of touching, and they're skilled at passing it off as innocent behavior. Now, whether it's a supervisor, it's a coworker, or whoever, it needs to stop, and you need to be protected from further abuse.

Sexual Pictures

• Centerfolds or nude pictures
• "Cheesecake" calendars or posters 
• Pornographic depictions, whether that's a photo or even a cartoon.
• Sexual pictures that are sent to your work computer, or your phone
• Other offensive images of a sexual nature.

Pornography

• E-mailed images or attachments
• Sexting nude or pornographic images to a cell phone
• Pornography displayed on a computer or screen saver
• Verbal descriptions of content
• Two or more coworkers gathered around a computer watching pornography.

Sexual Jokes

• Graphic descriptions of sexual acts
• Jokes containing sexual language or profanity 
• Sexual innuendo aimed at you
• Sex jokes told loudly for all to hear
• Sexual jokes or cartoons that are emailed to your work computer.

An issue that can arise in these cases that the victims have forwarded jokes that were sent to them, or engaged in banter in the workplace because they were afraid that they had to try to fit in.

Examples of Sexual Harassment

Now given this broad definition of sexual harassment, it is not surprising that sexual harassment comes in many forms. The following are all examples of sexual harassment: 

• A supervisor implies to an employee that the employee must sleep with him to keep a job.
• A sales clerk makes demeaning comments about a female customer to his coworkers.
• An office manager in a law firm is made uncomfortable by lawyers who regularly tell sexually explicit jokes.
• A cashier at a store pinches and fondles a coworker against her will.
• A secretary's coworkers belittle her and refer to her by sexist or demeaning terms.
• Employees post sexually explicit jokes on an office intranet bulletin board.
• An employee sends e-mails to coworkers that contain sexually explicit language.

Now, remember, the harasser in these cases can be the victim's supervisor, a manager, or a coworker. An employer may even be liable for harassment by a non-employee, such as a vendor, or a customer, depending on the circumstances, and also depending on the state. So let's switch gears now, and talk a little bit about a hostile work environment.

Hostile Work Environment

Here are some examples:

• Dirty jokes and lewd language
• Sexually explicit e-mails, pictures or pornography
• Sexual content posted on walls and computer screens
• Leering, suggestive looks
• Sexual comments or lewd behavior
• Inappropriate touching, unwelcome physical proximity
• Denied promotions because of your sex or your sexual orientation
• Denied or reduced pay raises
• Unwelcome phone calls, texts, or e-mail messages

Obscene Gestures

• Hip thrusts and other sexually suggestive actions
• Hand gestures that simulate sex acts.
• Obscene gestures with the lips or tongue.
• Simulating groping or touching.
• Use of the middle finger in a threatening or a sexual way.
• Body language used to corner, trap, or threaten.
• Leering, ogling, or suggestive facial expressions.

Obscene gestures may be part of a pattern of offensive behavior, or they may just be used silently to harass someone without a witness. It is important to document every instance of such behavior and report it to the company. 

Foul language 

• Profanity and vulgar language 
• Euphemisms such as "boink or screw"
• Demeaning terms like "bitch" or "slut" or "MILF"
• Crude references to private anatomy
• Description of sexual acts
• Comments about your body
• Sexual come-ons

Online Harassment

• E-mail or instant messaging
• Phone calls and voicemail messages
• Text messages to your cellphone or Blackberry
• "Sexting" of nude or pornographic pictures
• Post-in notes that are put on a computer, or computer printout with a sexual massage.
• Other work-related communications
• Posting something on Facebook or Instagram, some other social media.

The line between work and personal life is increasingly blurred, especially with social media, 24/7 connectivity via text messaging. You can be the victim of work-related sexual harassment even when you or your harasser are not even physically present at the workplace, or on duty, and with many people home-officing as well, that person doesn't have to be in your physical space to still make it harassment, it can be online.

Online harassment can be extremely stressful and scary. That harasser can post messages or images at any time.  They can be posted completely anonymous or they can be posing as someone else. Oftentimes, this type of harassment is more aggressive, explicit, and vicious in nature. It is important not to engage with the person by responding, especially in a way that sounds like you are condoning or downplaying the behavior.  You can let them know that you have a significant other or spouse.  You can also say "Please don't text or write to me like this."

Invasion Of Privacy

• Unauthorized intrusion into private matters.  This involves the intentional intrusion into another person's private life, seclusion, or solitude in some such way that is offensive. This intrusion must have negative effects on that person.
• Unauthorized public disclosure of private facts. - This involves any public disclosure of private information to the public that doesn't need to be known. A person may have an invasion of privacy claim in this type of case if that disclosure would be offensive to a reasonable person.  
• Misappropriating a person's name or likeness.  This involves someone using a person's name or likeness for profit.
• Portraying a person in a false light. This involves a person making some sort of a public statement about someone else that creates a false impression of who that other individual is. The statement must be something that would be offensive to a reasonable person.

Other types of actions that are considered sexual harassment through the invasion of privacy include:

• Physically invading your personal space such as your workstation or your desk
• Recording you in a restroom, a dressing room, or another private area, which sadly, we hear about so much in the media.
• Taking your picture without your knowledge and releasing it on the internet via social media.
• Threatening to release confidential information, or videos, or photos of a sexual relationship
• Blackmailing you to conduct sexual acts or engage in a sexual relationship.

The most common type of invasion of privacy claims in the workplace is an unauthorized intrusion into private matters.

Sample scenario. Elena is an executive assistant. Her boss, Aaron, frequently asks Elena to join him for dinner after work, so they can go over his agenda and other items. These conversations quickly turn personal when Aaron asks Elena about her dating history and sexual preferences. During the workday, Elena catches Aaron staring at her for long periods of time while she works. Aaron sends Elena late-night texts saying that he liked what she wore to work that day and he can't stop thinking about her. Aaron also makes a habit of stopping by Elena's office after everyone else has left for the day to complain about his non-existed sex life with his wife. Elena makes it clear that Aaron's conduct is not appropriate and tries to leave, but he stands in front of the doorway saying that he just needs someone to be nice to him. Aaron's unwanted attention and sexual conduct continue to escalate over the course of several months. That's a very overt example, but even if you break it down into all of the different things that Aaron was doing, each individual action from Aaron could be considered sexual harassment. This is looking at it in total, but each one of them is sexual harassment.

Other Facts About Sexual Harassment

Sexist comments and actions can also be harassment. A common misconception is that harassment must be of a sexual nature. However, under Title VII, offensive conduct that is based on an employee's gender, and severe or pervasive enough to create an abusive work environment is also illegal. For example, a workplace might be hostile if women are told to be more "feminine" or to live up to other gender stereotypes, are left out of important meetings, and have their work sabotaged by a male counterpart.

Sexual harassment by customers or clients is also included. Most people are aware that harassment by a manager or a coworker is illegal, but under Title VII, an employer also has a responsibility to protect employees from harassment by outsiders as well.  This includes customers, clients, vendors, business partners, and more. As long as the employer knows, or should know, that the harassment is occurring, they need to take action to stop it.

Sexual harassment knows no gender. Traditionally, when we think about sexual harassment, we think of a male harassing a female. While that is still the most common scenario, there have been plenty of incidents of females harassing males.

Same-sex harassment of a male against a male or a female against a female is also very much illegal. The harassment does not need to be motivated by sexual desire, either.

Tips for victims of harassment

• Send a letter or an e-mail to your manager, or to somebody within your organization so your complaint of sexual harassment is in writing.
• Make sure it's clear to the harasser that the offensive conduct is unwelcome.
• Keep a journal of all of the incidents with the dates and the details.
• Don't engage in behavior, jokes, or other interactions at work that could be used against you.
• Don't drink alcohol with coworkers or managers.
• Obtain a copy of your sexual harassment policies in your workplace.
• Make a list of potential witnesses, because they can help you, and they could also be anonymous witnesses.
• If you're experiencing any sort of emotional distress, depression, anxiety, or any other symptoms because of sexual harassment or sexual discrimination, ask your physician for help and possibly request a referral to a psychologist for counseling.

LGBT in the Workplace

Anyone Can Be Harassed

Sexual harassment is a gender-neutral offense, at least in theory. Men can sexually harass women and women can sexually harass men. However, statistics show that the overwhelming majority of sexual harassment claims and charges are brought by women claiming that they were sexually harassed by men. 

People of the same sex can also sexually harass each other, as long as the harassment is based on sex, rather than sexual orientation, which is not a protected characteristic under Title VII. For example, if a man's coworkers constantly bombard him with sexually explicit photos of women, and this makes him uncomfortable, he might have a sexual harassment claim. If, however, a man's coworkers tease and belittle him because he is gay, that might not be illegal harassment under federal law as it is currently interpreted. However, such conduct may be illegal under laws enacted by certain states, or even cities. (Of course, even if this type of behavior isn't illegal, it isn't appropriate, and savvy employers will put a stop to it promptly so everyone can get back to work.)

The line between harassment based on sex and harassment based on sexual orientation becomes very much blurred when gender-based stereotypes are gray, or when they are at play. For example, courts have held that Title VII is violated when a woman is harassed and discriminated against because she does not act sufficiently feminine; similarly, a man who is harassed for having effeminate mannerisms and gestures is protected by Title VII. These same employees might not be protected if their harassers relied more explicitly on homophobic slurs and remarks. Again, however, smart employers won't parse the legal details: This type of behavior detracts from productivity and morale and doesn't serve any valid purpose, so there's no reason to allow it to continue.

Workplace Rights

Workplace rights in the LGBT community are a gray area since sexual harassment in the workplace has always been associated with unwelcome male-female conduct. As this community gains the same rights as their heterosexual counterparts get, people who identify as lesbian, gay, bisexual, or transgender are now protected under many laws from unwelcome sexual advances in their place of work.

The LGBT community is at a higher risk of sexual assaults, as they've been stigmatized and marginalized for decades. The violence that is motivated by hatred toward people of different sexual orientations transfers to the workplace and often takes the form of sexual assault.

While sexual violence experienced by the LGBT community has become a very hot topic, ways to prevent it in the workplace are rarely, if ever, discussed. That's changing because state laws are now being introduced all over the country, that not only protect the LGBT workers but also promise repercussions for violations. 

Incidence

Gay and transgender individuals continue to face widespread discrimination in the workplace. The Williams Institute on Sexual Orientation Law and Public Policy aggregated a large number of surveys to determine the extent that gay and transgender workers experienced discrimination.  They found that discrimination and harassment are pervasive: 

• Fifteen percent to forty-three percent of gay/transgender workers have experienced a form of discrimination on the job
• Eight percent to 17 percent of gay and transgender workers report being passed over for a job or fired because of their sexual orientation or gender identity
• Ten percent to twenty-eight percent have received a negative performance evaluation or were passed over for a promotion because they were gay or transgender
• Seven percent to forty-one percent of gay and transgender workers were verbally or physically abused or had their workplace vandalized
• Straight coworkers also attest to the presence of discrimination and harassment against LGBT workers. The Williams Institute’s report found that 12 percent to 30 percent of straight workers witnessed discrimination in the workforce based on sexual orientation Straight workers are witnessing this same discrimination.
• Moreover, a staggering 90 percent of transgender workers report some form of harassment or mistreatment on the job. These workplace abuses pose a real and immediate threat to the economic security of gay and transgender workers.

Controlled experiments have found consistent evidence of workplace discrimination as well.  When researchers send two sets of matched resumes to major employers, and one indicates the applicant is gay, employers warmly receive “gay” resumes far less often than “straight” resumes. Seven out of eight of these studies confirmed the existence of antigay employment discrimination. 

Transgender individuals encounter workplace discrimination and harassment at even higher rates than gays and lesbians. Earlier this year, the National Center for Transgender Equality and the National Gay and Lesbian Task Force released a comprehensive study on transgender discrimination that revealed near universal problems at the workplace:

Forty-seven percent of transgender workers experience an adverse job outcome because they are transgender which included:

• Forty-four percent who were passed over for a job

• Twenty-three percent who were denied a promotion

• Twenty-six percent were fired because they were transgender

LGBT employees often face hostility in the workplace as well. Twenty percent have experienced discrimination when applying for a job, LGBTQ individuals of color are more likely to experience discrimination than individuals who are Caucasian. Twenty-two percent have not been equally paid.  Eighty percent of the transgender population who were employed in 2015 experienced harassment or mistreatment on the job or took steps to avoid it. Nearly two-thirds (62%) of LGBT employees heard lesbian and gay jokes at work, while 43% heard bisexual jokes and 40% heard transgender jokes. 

Fear prevents the LGBT employee from bringing their full self to work. Nearly three-quarters (70%) of non-LGBT employees believe it is unprofessional to discuss sexual orientation or gender identity in the workplace. LGBT individuals often cover or downplay aspects of their authentic selves. For example, hiding their personal relationships, or changing the way they dress or speak, in order to avoid discrimination.

When applying for jobs, LGBT individuals often conceal information about their sexual orientation or their gender identity from their resumes in order to avoid bias or discrimination, especially individuals of color(12%), individuals with disabilities(15.5%), and young people between 18 and 24 years of age (18.7%). Talented employees leave workplaces where they don't feel welcome.

Stories Behind the Numbers

Behind these statistics are heartbreaking stories of everyday Americans who are losing their jobs based on characteristics that have absolutely nothing to do with their job performance. For example, Vandy Beth Glen lost her job with the Georgia General Assembly when her boss fired her because she was transgender. In her words, "My boss told me "I would make other people uncomfortable "just by being myself. "He told me that my transition was unacceptable, and over and over, he told me it was inappropriate." "Then he fired me." "I was escorted back to my desk, told to clean it out,  then marched out of the building." "I was devastated."

Another example, Brooke Waits was gainfully employed in Dallas, Texas until her manager fired her immediately after she saw a picture on Brooke's cell phone of Brooke and her girlfriend kissing on New Year's Eve.

Officer Michael Carney was denied reinstatement as a police officer in Springfield, Massachusetts because he told his supervisors that he was gay.

Economic Consequences

There are a lot of economic consequences of discrimination as well. Gay and transgender individuals suffer from inequalities in large part due to pervasive discrimination in the workplace. Discrimination directly causes job instability and high turnover, resulting in greater unemployment and poverty rates for gay and transgender people as well as a wage gap between gay and straight workers.

Gay men earn 10% to 32% less than similarly-qualified heterosexual males. Older gay and lesbian adults experience higher poverty rates than their heterosexual counterparts. Transgender individuals are twice as likely to be unemployed and four times as likely to live in poverty. Twenty percent either are currently or have been homeless.

Discrimination diminishes productivity, job satisfaction, and the mental and physical health of all employees.

Employer Requirements

Employers have a responsibility to maintain a workplace that is free from sexual harassment. That is their legal obligation,  but, it makes good business sense too. If an employer allows sexual harassment in their workplace, they will pay a high price in poor employee morale, low productivity, and lawsuits.

If a court finds that an employer has violated Title VII, the reality is, the court may order the employer to pay back-pay, compensatory damages, and punitive damages to the employee. Despite Title VII's mandate against sexual harassment in the workplace, and state requirements as well, there remains some disagreement among the federal district courts within the First Circuit, as to whether or not supervisors may be sued in their individual capacities for sexual harassment. This controversy results from the statute's arguably ambiguous definition of the term, "employer." Although Title VII's language explicitly addresses an employer's conduct, it defines the term "employer" to include employers with certain characteristics, "and any agent of such a person..." It's that "any agent" clause that causes the courts to disagree about whether supervisors can or cannot be sued in their own individual capacities. Some courts will interpret the "and any agent" clause as unambiguously providing for individual liability of supervisors. Supervisors are common-law agents of the employer, they reason. So what are we saying there? Again, it's hard to say, the language is, to some courts, ambiguous. If you are in fact a supervisor, depending on the court, you could possibly be liable for that employer's actions.  

Employer Obligations

Under the law, all employers are required to take the following actions against any sort of harassment.

• They need to take all reasonable steps to prevent discrimination and prevent harassment from occurring in the first place.
• They need to develop and implement a sexual harassment prevention policy, with a procedure for employees to make complaints, and for the employer to then investigate complaints. Policies need to include provisions to: 
  • Fully inform the complainant of his or her rights, including the right to be free from retaliation, and any obligations to secure those rights.
  • Fully and effectively investigate. The investigation must be thorough, objective, and complete. Anyone with information regarding the matter should be interviewed. A determination needs to be made and the results communicated back to the complainant, to the alleged harasser, and if appropriate, anybody else who might be directly concerned or involved.
  • Take prompt and effective corrective action if the harassment allegations are proven. The employer must take appropriate action to stop the harassment and ensure that it won't continue. The employer must also communicate to the complainant that action has been taken to stop the harassment from recurring.  Finally, appropriate steps must be taken to remedy the complainant's damages, if any.

Employer Requirements

We need to make sure that the employer does the following list of requirements and that they also obviously watchdog themselves.

• Forbid sexual harassment, declare that all forms of discrimination, including sexual harassment, will not be tolerated.
• Define the prohibited conduct, explain what sexual harassment is, define the forms, the hostile work environment, the quid pro quo.
• Provide examples of prohibited harassment, hypothetical workplace situations, and again, note that harassment can involve spoken, written words, images, physical contact, it doesn't have to convey all of that, there doesn't have to be physical contact, for example. Include a catch-all sentence, so after you give all those examples, this list is illustrative, it is not complete. It doesn't include every possible incident or scenario that may lead to investigation and disciplinary action.
• Prohibit harassment based on characteristics other than sex, so make the policy broad enough to apply to harassment that maybe isn't sexual in nature, such as harassment based on race, color, national origin, religion or creed, disability, age, marital status, sexual orientation, and maybe other things on that list.
• Apply the policy to all employees, regardless of position or title. The policy can also be applied to anyone who has a relationship with the employer, such as a vendor or contractor, or even a volunteer.
• Prohibit retaliation. The policy must prohibit retaliation against employees who complain of harassment and encourage reporting of instances of retaliation. And I know we'll talk about this on another slide, it would also be covered for whistleblower protection, so you are a whistleblower on your company, you can't be retaliated against.
• Outlining the investigative procedure, so it outlines the employer's process for investigating any sexual harassment complaints so that employees know what to expect.
• Summarize the possible consequences, again stating that in response to finding that sexual harassment has occurred, the employer will impose discipline up to and including termination of employment.
• Identify a variety of people to whom complaints can be directed, so that might be Human Resources, supervisors, other managers, or maybe even someone else. I mean, you might be in a state where that means that you have to go to the state to report. And again, remember that employees are not required to report complaints directly to their immediate supervisor. That gives the employee who is harassed by their immediate supervisor the option to file a complaint with someone else.

Policy

Adopt a clear sexual harassment policy. In your employee handbook, you should have a policy devoted to sexual harassment. That policy should:

• Define sexual harassment
• State in no uncertain terms that you will not tolerate sexual harassment
• State that you will discipline or fire any wrongdoers
• Set out a clear procedure for filing sexual harassment complaints
• State that you will investigate fully any complaint that you receive 
• State that you will not tolerate retaliation against anyone who complains about sexual harassment

Employee Training

We need to train employees, supervisors, managers.

These sessions should teach employees what sexual harassment is, explain that employees have a right to a workplace free of sexual harassment, review your complaint procedure, and encourage employees to use it.

Conduct training sessions for supervisors and managers that are separate from the employee sessions. The sessions should educate the managers and supervisors about sexual harassment and explain how to deal with complaints.

Offer additional training for managers and supervisors on preventing harassment by or of their subordinates, handling complaints of harassment, and the potential for personal liability for their actions in addressing sexual harassment in the workplace.

Even if your state doesn't require or suggest training, it's still a good idea -- your managers will know what the law is and what to do when employees complain, and, if you find yourself in a lawsuit, you'll be able to show that you took steps to try to prevent harassment.

Prevention/Response Checklist

• Disseminate and Implement the Policy.
• No matter how well-drafted, the policy will not prevent harassment or encourage victims to report it if it is not effectively disseminated and widely implemented; therefore it is imperative to:
  • Distribute the policy to every employee. Ensure that the policy is in the employee handbook and that the handbook is distributed to every employee.
  • Employees must acknowledge the policy. All employees should sign acknowledgment forms stating that they received and are aware of the employer’s sexual harassment policy.
  • Post the policy. Post the harassment policy prominently on bulletin boards throughout the workplace and on the employer’s website.
  • Investigate and resolve sexual harassment complaints promptly, thoroughly, and impartially.

​Obligations After a Complaint

What are the obligations of the company after a complaint is made?  We've already talked about the complaint process but to review when an employee complains that he or she is experiencing sexual harassment of any type, the employer has a legal, ethical, and employee relations obligation to thoroughly investigate the charges. 

• Before a complaint is even filed, everybody has to know the policy relative to sexual harassment and make sure it is posted. It needs to be known that it won't be tolerated and it will be investigated.
• Map out a plan for the investigation including the people and situations to investigate in the initial complaint. 
• Talk to the person who is complaining. Guarantee the employee that he or she is is safe from retaliation, and that reporting the incident or general situation was the appropriate action to take.
• Inform that employee that you need to know immediately about any retaliation.
• Ask the employee to tell the whole story in his or her own words. Write down all the facts. Listen, take notes.  Write down the dates, times, situations, witnesses, what exactly happened, and anything else that is relevant.
• Tell the accused person that a complaint has been filed, and that no acts of retaliation or unethical actions will be tolerated and that you want them to be patient while you investigate it.
• Assure the person accused that a fair and just investigation will be conducted on their behalf as well as that of the accuser. 
• Interview potential witnesses. Ask open-ended questions and seek facts that support or disprove the employee's allegations.
• Interview the person who is accused of sexual harassment.
• Review all of the information and attempt to reach a decision about whether or not sexual harassment actually occurred. Make the best decision that you can with the information you have.
• Make a decision about whether or not sexual harassment occurred. Provide the appropriate discipline to the appropriate people, based on your findings. Make work-or assignment-setting adjustments if necessary.
• Recognize, too, that no one is perfect. No situation can be perfectly 100% investigated, even when harassment may have occurred because there may be no facts or witnesses that corroborate a complainant's statement.
• Assure that no further incidents occur by following up and documenting with the employee. 
• Remember, it is possible that an employee has been wrongly accused, so give that person the same courtesy of follow-up and documentation as the person making the complaint. Adjust working situations fairly where necessary for the comfort and productivity of all.

Guidelines

A program to eliminate sexual harassment in the workplace is not only required by law, but it is the most practical way for an employer to avoid or limit liability if harassment should occur despite preventable efforts. All employees should be made aware of the seriousness of violations of the sexual harassment policy and must be cautioned against using peer pressure to discourage harassment victims from complaining. If the harassment does occur, take effective action to stop any further harassment and to correct any effects of the harassment.

Employer Liability. These laws depend on your state and please review your state laws.  The law requires employers to take all reasonable steps to prevent harassment from occurring. If an employer has failed to take a preventative measure, that employer can be held liable for the harassment by their supervisors or agents. In addition, if the employer knows or should have known that a non-employee (client or customer) has sexually harassed an employee, they could be held liable.

What if it Happens to Me? 

• Object.  Let the harasser know right away that you're offended and want it to stop.
• Document. Write it down what happened, when it happened, who was there and what was said by all parties involved. Don't keep that record at work. 
• Identify witnesses. Speak to people who you trust. Witnesses may be able to speak on your behalf. Often the person harassing you may be bothering others as well.  
• Report it to HR, your supervisor, and /or some other department who has the power to stop it.  Report it in writing and keep a copy of your complaint.  
• If it's criminal in nature, report it to the police.  

Remember/Summary

• Persons of any gender can be victims of sexual harassment.
• Sexual harassment is not limited to any level of employment or education
• Charges of sexual harassment can be filed with your state as well as the employer.  Know your state laws.
• Know your company policies
• Ignorance of the law excuses no one
• Remember that training and education are the best prevention
• You are protected from retaliation
  • This includes whistleblower protection if, in fact, you report your company for sexual harassment or harassment in general

Case Studies

For the following case studies, we are not going to review the answers for these, per se, because they are just potential situations for you to think about.

During the case studies, what I want you to think about is:  

• is this situation problematic, why or why not?
• What are the primary issues?
• How would you reconcile this situation if this employee came to you?
• What additional information might you need to assess the situation?
• Put yourself in the position of the supervisor here.
  • What might happen if you do nothing?
  • And what might you do next?

"Just Bob"

Bob, an employee in a department, regularly tells off-color jokes, is rude to coworkers, nicknames them derogatory names behind their backs, and then uses sexual and racial slurs. He's even made some of these comments in front of his supervisor, Dale. His coworkers are upset by the conduct but feel that since Dale hasn't done anything about it, they just have to put up with it. Joan, a new employee, approaches Dale to complain. Dale tells her that Bob is a good worker and that he doesn't mean anything by the comments. "Oh, that's just Bob," he says. So what might you do in that situation, and what additio