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Sexual Harassment 20-486334 1-Hour Back to Course Index

 

Susan, a certified alcohol professional and administrator of a 40-bed recovery center, rubbed her neck and searched for the bottle of aspirin buried in her top desk drawer. Earlier that day, the facility’s receptionist had called Susan out of a staff meeting to tell her a man in the lobby was asking to see her immediately. When Susan reached the lobby, they handed her a stack of documents. When Danielle glanced at the first page of the documents, she saw the word “summons,” the facility’s legal name, and a disclaimer warning her that her employer was being sued. The plaintiff was Daniel Smith, an LPN who worked the 3-to-11 shift. Daniel was scheduled to work that afternoon.

After faxing the summons and complaint to her company’s legal department, Susan had a conference call with attorney Beth Stephens. Beth asked Susan several questions about Daniel’s employment history with the facility. When Beth asked Susan’s opinion about what kind of an employee Daniel was, Susan answered that he was quick to stand up for himself, especially in situations in which he felt he’d been wronged.

There’d been one occasion a year ago when Susan had to mediate a dispute involving Daniel and two coworkers, Sarah and Jennifer. Thereafter, the problem seemed to resolve, and there had been no hint of ongoing issues between the two women and Daniel.

A few months back, Daniel complained that he wasn’t getting his fair share of work hours and assignments. He contended that his immediate supervisor gave preferential treatment to his female coworkers when developing the work schedules. He also alleged that he was the one stuck working all the holidays, while women were always given these days off because they had children. In response to these accusations, Susan evaluated several months of work schedules and spoke with the scheduling supervisor. In the end, she could find no evidence of preferential treatment in the way the hours were assigned. Susan showed Brock the schedules and addressed all of his concerns in detail. That was that — or so she thought.

Later, Daniel complained when an applicant from the outside was hired to work as a shift supervisor. Daniel had interviewed for the job, and Susan knew he wanted it badly. She, however, was seeking a candidate with supervisory experience, someone who could hit the ground running. While Susan would have enjoyed seeing someone promoted from within, Daniel lacked experience. Conversely, the candidate who was selected had years of experience supervising others. She seemed to be a good fit for the organization, and Susan had been pleased with her progress so far.

Susan picked up the legal documents once again. In the court complaint, Daniel alleged that he had been the victim of sex discrimination. The complaint outlined his past problems with Sarah and Jennifer, his concerns about the way the work schedules were developed, and the loss of a promotional opportunity. Daniel complained that in each scenario, he had been discriminated against based on his sex. He also alleged that he suffered unlawful retaliation after complaining about sex discrimination in the workplace to Susan and his immediate supervisor.

Dropping the complaint on her desk, Susan thought, “Now what?”

 

 

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.  Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.

Unwelcome sexual advances, requests for sexual favors, SH3and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to, the following:

  • The victim, as well as the harasser, maybe a woman or a man. The victim does not have to be of the opposite sex.
  • The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a coworker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
  • The harasser’s conduct must be unwelcome.

SH2It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.

 

IMPORTANT TERMS TO UNDERSTAND

Many terms are used interchangeably, and some overlap, but the term sexual abuse is primarily used to describe behavior toward children, rather than adults.   Sexual assault covers all the criminal acts that are sexual.

We speak of consent, what does this mean?  Consent must be freely given and informed, and a person can change their mind at any time.

Consent is more than a yes or no. It is a dialogue about desires, needs, and levels of comfort with different sexual interactions.  It can be confusing on both sides, so the education that needs to go out is unless an individual is sure someone is consenting, then they are not.

Inability to consent means that the freely given agreement to have sexual intercourse or sexual contact could not occur because of the victim’s age, illness, mental or physical disability, being asleep or unconscious, or being too intoxicated (e.g., incapacitation, lack of consciousness, or lack of awareness) through their voluntary or involuntary use of alcohol or drugs.  In the United States, the age at which consent can be given ranges from 16 to 18 years.

Inability to refuse means that because of the use or possession of guns or other non-bodily weapons, or due to physical violence, threats of physical violence, intimidation or pressure, or misuse of authority, someone could not refuse the sexual assault.

Sexual assault means any nonconsensual sexual act when the victim cannot consent.

Unwanted sexual contact is the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person without his or her consent, or of a person who is unable to consent or refuse. Unwanted sexual contact can be perpetrated against a victim or by making a victim touch the perpetrator.

Rape is a crime of violence and domination in which one person forces, coerces, or manipulates another person to have sex.

Date rape is forced or coerced sex within a dating relationship.

Acquaintance rape is committed by someone known to the victim.

Stranger rape refers to instances where the victim may not know the perpetrator.

Statutory rape is sexual intercourse between a person who is under the mandatory age, with or without said consent. Many states have close age exemption laws.  This is a law allowing a young person below the age of consent to have lawful sex with an older partner. However, not every jurisdiction has a close age exemption, and they vary by area.

Penetration involves physical insertion, however slight, of the penis into the vulva; contact between the mouth and the penis, vulva, or anus; or physical insertion of a hand, finger, or other objects into the anal or genital opening of another person.

 

PREVENTION

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.

Prevention includes educating staff on what sexual harassment includes.

The following is a list of examples of activities that could be considered sexual harassment if unwelcome.  The list is only a guide.SH6

  • Direct or indirect threats or bribes for unwanted sexual activity 
  • Sexual innuendos and comments 
  • Intrusive sexually explicit questions 
  • Sexually suggestive sounds or gestures such as sucking noises, winks, or pelvic thrusts 
  • Repeatedly asking a person out for dates, or to have sex. 
  • Touching, patting, punching, stroking, squeezing, tickling, or brushing against a person 
  • A neck/shoulder massage 
  • Rating a person’s sexuality 
  • Ogling or leering, staring at a woman’s breast or a man’s derriere 
  • Spreading rumors about a person’s sexuality 
  • Name-callings, such as bitch, whore, or slut 
  • Sexual Ridicule 
  • Frequent jokes about sex or males/females 
  • Letters, notes, telephone calls, or material of a sexual nature 
  • Pervasive displays of pictures, calendars, cartoons, or other materials with sexually explicit or graphic content 
  • Stalking a person 

The first thing to do is speak up, or better, type it up. If someone made you feel uncomfortable, the first person to speak to about it is the coworker who made you feel that way. It’ll be awkward, but there’s a possibility he or she doesn’t realize the error, and the issue can be squashed. It is best to have this conversation in writing as documentation.

SH4Employers have to remain impartial, for your sake, the accused’s sake, and the company’s sake.  Keep in mind that to resolve a complaint, HR will question you about what occurred, plus interview the accused employee as well as supervisors and witnesses (if there are any). The HR representative might look into your personnel records as well as those of the accused. He or she might also look into your email accounts and any other written documentation.

The outcome of making a claim might not be what you expected. Some bigger concerns employees have are that their complaints won’t be taken seriously, or they’ll have to continue to work in conditions that make them uncomfortable. During an investigation, it’s a good idea to ask the employee what he or she would like to see as a result.

Be prepared that the person you’ve accused of wrongdoing could continue to be your colleague after the investigation is over. He or she might receive a warning or behavioral training, or he or she may have to transfer departments. There’s also the possibility your employer might say the investigation was inconclusive. If this happens, don’t be discouraged.  All ‘inconclusive’ means is that on its face, there isn’t enough information to determine whether something inappropriate happened or not. But it could be that someone else brings a claim against this person at the same company, who now has a record of an instance or several instances of inconclusive claims. Even though claims are assessed case by case, you do take someone’s personnel record into account.

Is there a typical target, or a typical harasser? 

The victims of harassment are often framed as “vulnerable.” But this has become a way of saying that if only women were a bit more robust, it wouldn’t happen. There is nothing inherently fragile about a woman who is young and can’t afford to lose her job.  Women are also not the only victims.

Why take action?

Evidence shows that reporting is an effective way to make sexual harassment stop.


 I’m
worried about what will happen if I make a complaint…

Many people are worried they will make things worse if they report their experience of sexual harassment to their employer. Under federal legislation, it is unlawful for an employee to be disadvantaged because they’ve reported sexual harassment. For example, it may be unlawful for your employer to move you to a position with fewer responsibilities or give you a critical reference just because you’ve reported sexual harassment.

 
How can I take action as a bystander?

People who see or hear about harassment in their workplace are called bystanders.

Active bystanders play a role in reducing the harm of sexual harassment and ensuring there is no tolerance for sexual harassment in their workplace.SexHar3

You can talk to the person experiencing harassment:

  • Listen to them
  • Assist them in finding information or on how to make a complaint

There are also other things you can do:

  • Talk to your manager or supervisor about displaying the workplace sexual harassment policy prominently in your workplace.
  • Organize sexual harassment training for your workplace
  • Talk to Human Resources about implementing any sexual harassment policies.
  • Talk to a union delegate or union about raising awareness of sexual harassment in the workplace.
  • If you have the person experiencing the harassment, you can also report it to your employer.

What bystander action is possible will differ in different workplace contexts, so it may be necessary to adapt what action you take to the context of your workplace.

Employers:  Minimizing the Potential for Legal Exposure
The best way to avoid a lawsuit is to take measures to prevent one from occurring.  Again training staff and being clear that it is not tolerated, but also in handling the situation correctly when it does come up. Even in situations in which the employer is the prevailing party in a lawsuit, the employer still loses. This is because so much is lost, both quantitatively and qualitatively, in defense of a lawsuit. The time that could be directed toward running a more efficient organization now needs to be devoted to depositions, responding to interrogatories, and appearing in court. Then there is the issue of court costs and defense attorney fees.  Also, staff that is or feel injured through the process are never at their best when it comes to job performance.SH1
The bottom line is that employment-based litigation is costly, disruptive, and time-consuming. Consequently, it makes good sense for employers to institute effective human resource grievance procedures so employees who believe they have been victimized by unlawful discrimination will step forward and complain rather than go to an attorney.
Nevertheless, employees are sometimes reluctant to complain about sexual harassment because they fear retaliation. However, as there is a possibility that an employee can lose on a sexual harassment claim but win a judgment on a claim of retaliation for filing that claim, employers must avoid actions that could be construed as retaliatory. They should also implement employee-friendly systems that encourage people to step forward with any concerns of discrimination, including an employee grievance procedure.
Investigations into employee complaints should be prompt, thorough, and effective. If someone directly or indirectly invokes the grievance procedure, the investigator should take immediate action and meet with the complaining party promptly. Do not allow the problem to fester. Furthermore, this meeting should be conducted in private, away from prying eyes and ears. Each complaint should be dealt with individually, as there is no cookie-cutter approach to investigating discrimination complaints. Nonetheless, realize that when a complaint is received, the investigator is dealing with an allegation of discrimination, not a fact. Thus, steps must be taken to protect all parties involved, including the alleged harasser.
In almost all cases, the investigator should meet with the complaining party first. This is an important meeting. Essential facts can be forgotten or embellished as time goes on, so be sure to ask sufficient questions about all key matters. Do not be afraid to ask tough or embarrassing questions. In addition, avoid asking leading questions or those that simply require “yes” and “no” answers. This is the time for information gathering about what had occurred when it occurred and who witnessed these events.
Putting the person at ease as much as possible is crucial. Offer the person a drink of water. Ask for permission to take notes. While the meeting’s events must be documented, it is more important to ensure that the person opens up to the investigator and speaks freely. So if jotting down contemporaneous notes makes the complaining party nervous, put the pen down and document the meeting as soon as it is concluded.
 
While asking questions, look the person in the eye, but do not stare him or her down. Avoid negative or judgmental facial expressions or body language. After the meeting, advise the complaining party to get back to you with any additional information that comes to mind. Then, while the investigation continues, stay in contact with the complaining party. Long periods without any feedback may make the complaining party conclude that the investigation has been dropped, even if it has not. In certain cases, it will take time to speak with the various witnesses and evaluate all the evidence.
As soon as it’s possible, communicate with the alleged harasser. Put him or her on notice that a complaint has been filed and an investigation has commenced. Then, in no uncertain terms, tell the person that he or she is not to take any action whatsoever against the complaining party that could be construed as retaliation. The last thing the organization needs is for the alleged harasser to have a knee-jerk negative reaction and lash out at the complaining party for exercising the grievance procedure. Thus, it may make sense to separate the alleged victim and the harasser while the investigation continues. If this is not possible or practical, monitor the situation closely to guard against retaliation. Gather the necessary information, conduct all interviews, and assess the situation based on the evidence provided. Get back to the complaining party and provide him or her with the results of the investigation.
 
Thoroughly document all aspects of the investigation. If the results of the investigation are inconclusive, advise both the complaining party and the alleged harasser of this, and then review the company’s policy on harassment and retaliation with both. Conversely, if the investigation determines that corrective action needs to be taken, including involuntary termination, carry out the decision without delay.
Dealing with discrimination complaints is never pleasant. They can also be time-consuming, mentally draining, and tricky. Thus, supervisors and managers with any questions on how to investigate these complaints should confer with the organization’s human resources department, legal counsel, or an outside attorney.
 
The workplace should not allow:
  • Pinning the victim down, assaulting the victim
  • Purposefully pushing past an individual to make contact with them.
  • Administering alcohol or drugs to a victim to gain the victim’s compliance with a sexual act (e.g., drink spiking)
  • Taking advantage of a victim who is unable to provide consent due to intoxication or incapacitation from voluntary consumption of alcohol, recreational drugs, or medication
  • The exploitation of vulnerability (e.g., immigration status, disability, undisclosed sexual orientation, age)
  • Intimidation
  • Misuse of authority (e.g., using one’s position of power to coerce or force a person to engage in sexual activity)
  • Economic coercion, such as barterings of sex for basic goods, like housing, employment/wages, immigration papers, or childcare
  • Degradation, such as insulting or humiliating a victim
  • Fraud, such as lies or misrepresentation of the perpetrator’s identity
  • Continual verbal pressure, such as when the victim is being worn down by someone who repeatedly asks for a date.
  • False promises by the perpetrator (e.g., promising promotion, better office, time off) 
  • Spreading rumors

 

 

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