Define Sexual Harassment

If you're asked to define sexual harrassment, sexual harassment is when a person receives unwanted advances, requests, or any other forms of conduct in a sexual nature that affect his or her work employment and environment. Here are some well-known examples of sexual harassment:

  • Inappropriate sexual comments to an employee
  • Touching or groping an employee
  • Sending or showing pornography pictures or videos to an employee
  • Any other verbal or physical conduct of a sexual nature

Any of the above actions may be considered as sexual harassment if the actions are done to make an employee feel that his or her job and/or ability to move up within the company is based on agreeing to these requests or actions. Please note that sexual harassment can also include acts that are not sexual but are based on the gender of an employee such as inappropriate language or behavior against women or men in the workplace.

Sexual harassment is considered to be workplace nuisance and can lead to civil lawsuits in some states. An employee who is a victim of sexual harassment may file a lawsuit against the individual making the advances and their employer if the employer did not take steps to stop the harassment once a verbal or written complaint or grievance has been filed with management and/or the Human Resources department.

A business can be held responsible for the harassment committed by their employees whether or not the employee is in a management role unless it can be proven steps were taken to prevent and/or stop the harassment. It can also be held responsible for sexual harassment committed by non-employees at the workplace such as a customer or vendor.

Although small businesses may not have a formal policy or training program regarding sexual harassment like larger businesses, it is important that small business owners develop their own rules and procedures to make sure that their employees know that sexual harassment is not allowed and will not be tolerated in their place of business. Failure to do this may lead to sexual harassment lawsuits, which will cost them money as well as employee staffing problems such as high turnover.

Understanding Sexual Harassment

Sexual harassment falls under Title VII of the Civil Rights Act of 1964 as a form of sex discrimination, and it is illegal. There are two types of sexual harassment:

  • Quid pro quo
  • Hostile work environment

For the quid pro quo type of sexual harassment, this type occurs when those in authority, such as a supervisor or manager, request a sexual relationship with employees. In exchange, the authority promises that the employee will get to keep his or her job and/or receive a promotion or raise.

A hostile work environment is when the employee is subject to unwelcome sexual comments, photos, or threats, which may create an offensive workplace for the employee.

Who Can Be a Victim

There are no certain rules when it comes to who can be the victim or harasser in sexual harassment cases. Sexual harassment victims can be male or female, and the harasser can also be a male or female. Also the victim and the harasser do not have to be of the opposite sex. There can be several victims in a sexual harassment case because anyone who is affected by the inappropriate conduct can be considered a victim.

State Laws

Each state has different laws regarding sexual harassment protections in the workplace. For example, employees in the State of Alabama are allowed to sue their employer for invasion of privacy due to sexual harassment. In Vermont, the law requires that all businesses have a policy regarding sexual harassment

Over the years, the opinions of the court system have become inconsistent regarding the decisions on whether sexual harassment occurred or not. In some cases, the facts regarding the cases were the same, but the rulings were different due to the fact that hostile work environment cases are harder to prove than quid pro quo type of cases when it comes to sexual harassment.

The United States Supreme Court allows employers to defend themselves in sexual harassment lawsuits filed on the basis of hostile work environment caused by the actions of one of their management staff or employee. They are able to argue that steps were taken to prevent the harassment and correct the behavior. Employers are also able to use the argument that they are not liable if the employee failed to take advantage of the business reporting or remedial tools to file a complaint about the sexual harassment.

Understanding Harassment and Employee Rights

The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces the laws prohibiting sexual harassment. This agency handles the complaints and performs an investigation regarding harassment in the workplace. During the investigation, employees of the EEOC review all of the records regarding the alleged incidents and make a determination based on the facts on a case-by-case basis.

During the fiscal year of 2005, the EEOC reported that 12,679 charges of sexual harassment were filed and 14.3 percent of the cases filed were made by male victims. Of these cases, EEOC was able to resolve 12,859 sexual harassment charges, which rewarded $47.9 million in monetary benefits for affected parties in the sexual harassment cases. Please note that in some cases, it may take longer than a year to resolve so this total included cases from previous fiscal years.

Over the years, sexual harassment has become a popular topic for discussion. In the past, businesses failed to address the importance of this issue in the workplace. Some people think that the reasoning behind this was that women did not make up a large majority of the workplace, so they were less likely to come forward to file a complaint due to fear. However, there are now laws in place to help protect victims of sexual harassment, which were created over the last 25 to 35 years. Since the 1990s, research has shown a rise in sexual harassment complaints, and it continued to rise from 2000 to 2005.

In addition to protecting the rights of employees being harassed in the workplace, it is also important that businesses also protect the rights of the person being accused of harassment. Although an employee may file a sexual harassment complaint, it does not automatically mean that the complaint is true. Therefore, the business owners and/or management teams need to consider the rights of both parties while conducting an investigation regarding a sexual harassment complaint. Failure to protect the rights of the accused may lead to a lawsuit for wrongful punishment or termination due to a false sexual harassment claim.

Creating Sexual Harassment Policies

As mentioned before, it is important that businesses create a policy regarding their sexual harassment rules and procedures. By creating this policy, it shows that the business is making an effort to make sure that their workplace remains and stays free of sexual harassment. It can also be useful to help show that a business is doing its job to make sure all the correct steps have been taken during a sexual harassment investigation that results in findings of misconduct.

Some businesses may elect to hire business consultants that specialize in sexual harassment to help create a formal written policy for the company to make clear that sexual harassment is not tolerated within the company. Other businesses may just choose to add this information into part of their current policies due to the nature of the subject.

No matter how the policy is created and distributed to the employees, it should include a detailed list of sexual harassment examples and explain how the company will handle sexual harassment complaints. It should also provide details on the actions that will be taken against employees, who are found to be guilty of sexual harassment.

In addition to a written policy, here are some actions that can be taken to help keep a workplace free from sexual harassment:

  • Create training programs to teach all employees especially for management staff
  • Develop written in-house procedures on the proper way to address complaints
  • Create other ways for employees to file complaints in case the alleged harasser is the employee's direct supervisor

What to Include in Sexual Harassment Policies

According to legal experts, businesses need to make sure their policies provide a good understanding of the legal responsibilities of themselves as the employer and covers all of the forms of sexual harassment. Although most sexual harassment policies are effective, it has been found that some policies are lacking in areas such as the understanding of sexual harassment and the proper coverage of ways sexual harassment can occur. For example, many people think that in order for sexual harassment to occur, the harasser must have a bad motive.

Another area that is often overlooked by employers in their sexual harassment policy is that they can be held responsible for sexual harassment of their employees by non-employees of the company such as customers. They are responsible for taking action by confronting and removing any non-employee that is harassing their employees on the premises.

Sometimes sexual harassment complaints may occur between two employees that used to date, which can cause problem if there is a breakup. Therefore, some companies often create policies regarding dating and nepotism in the workplace. The policy should address dating with supervisors, subordinates, clients, and any other parties with connections to the company.

How to Investigate Sexual Harassment Complaints

Any complaints regarding sexual harassment should be taken seriously, investigated thoroughly, and handled accordingly. It is important that those who will handle the investigation are focused and knowledgeable about the entire process in order to review the issue. Here are some skills he or she should know or have:

  • The legal scope of sexual harassment
  • Past work experience in dealing with employee complaints
  • A full understanding of the company's policies
  • No personal and/or direct working relationship with the employee and the alleged harasser

The investigation should include a review of the personal records of the employee and the alleged harasser to look at items such as performance evaluations, disciplinary actions, and salary/promotion records. This information may or may not be helpful to the investigation, but it is still important to check. It is also important that the investigator not make any judgments until the investigation is completed.

The investigation should perform an in-depth interview of both the employee and the alleged harasser. Some factors that should be noted in the interviews are the background of each person, the details about any incidents, and the nature of the relationship if any. The investigator should take notes and be aware that both parties may be emotional or angry during the interview, so the investigator may need to give the parties time to calm down. Once these interviews are complete, the interviewer will also need to talk to any witnesses such as coworkers of the alleged incident.

Once the investigation is completed, the investigator provides a written report and the company can follow up with the appropriate corrective action. Based on the company's policy, the corrective action could range from counseling to termination. The factors that could affect the level of the corrective action can be based on the following:

  • The type of offense
  • The request of the employee, who filed the compliant
  • The result of the actions of the alleged harasser

In order to deal with the difference of how sexual harassment is seen, the court system has developed a new way to review sexual harassment claims. Under the old way, claims were viewed based on traditional gender, which resulted in being biased toward males. Now claims are viewed in many states based on the perspective of a person of the same sex, which eliminated the difference perspective based on gender.

If you need help with how to define sexual harassment in the workplace, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.