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Free Human Resource Information
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See Harassing Differently |
by Geoffrey Glaser
People need to develop a better
understanding of what sexual harassment is and then what to do if it occurs.
Unfortunately we must first face the fact
that some people simply do not believe sexual harassment event exists.
The Harvard Business' Review, in
conjunction with Redbook Magazine, conducted a nationwide survey and
discovered a divergence of opinion on the question of whether sexual
harassment in the workplace is exaggerated.
66% of male respondents said "Yes" it is
exaggerated while 68% of the females answered it is not.
Are we on the same planet? Is this
Mars versus Venus? What is the truth?
Clearly, lawyers and the Equal Employment
Opportunity Commission believe there is such a thing as sexual harassment.
More than 12,000 cases were filed in 1993, the year after the Anita Hill /
Clarence Thomas incident. That was twice as many as the year before.
In another survey, this time with federal
government employees, 42% of the females indicated they had
experienced sexual harassment on the job. Thus, surveys, law suits, and the
millions of dollars recovered each year by charging parties, unmistakably
indicate that it exists and is not exaggerated.
But what is it?
The legal definition is unwelcome conduct
based on the victim's gender. In much more detail, the EEOC defines it as
"unwelcome sexual advances, requests for sexual favors and other verbal
or physical conduct of a sexual nature" when:
-
Submission in such conditions made either
explicitly or implicitly a term or condition of an individual employment,
or
-
Submission to, or rejection of, such
conduct by an individuals used as a basis for employment decisions affect
such individual, or
- Such conduct has the purpose or effect of
unreasonably interfering with an individual's work performance or creating
an intimidating, hostile or offensive working environment.
The courts have established two kinds of
sexual harassment.
The first is called quid pro quo, "this for that", which typically plays out with someone in authority
using that power to threaten, promise or otherwise cause an employee to
suffer a loss. This is the "put out or get out" demand. Most of us
can agree that this behavior is sexual harassment and inappropriate.
The second kind of sexual harassment is
called "hostile environment." This is more difficult to recognize
and prove.
The particular facts of each situation
determine whether naive conduct has crossed the line. Courts now recognize
men and women have different levels of sensitivity - conduct which does not
offend most men might offend most women.
The difference in reaction has led many
courts to adopt a "reasonable woman" standard for judging cases of
sexual harassment, rather than a reasonable person point of view. If a
reasonable woman would feel harassed, harassment may have occurred, even if
a reasonable man might not see it that way.
If gender-based, or sexually-oriented
offensive conduct is occurring, what should be done?
The victim should not ignore the behavior
but try self-help. The offender should be told what they are doing that is
offensive and asked to discontinue it.
For example, "Please-do not do that
again, it is very offensive to me" is an appropriate request. If it
continues, it should be reported to the appropriate company official. If
that does not stop the offensive behavior, a charge with the EEOC the state
Human Rights Commission should be filed.
The law expressly protects anyone
complaining about sexual harassment, assisting someone else to complain or
providing information about a complaint. There can be no retaliation,
whether the complaint is filed within the company or with the agencies.
The company must take immediate action.
First of all, the courts have been
consistent in outlining for employers an effective, preventive program,
including the following requirements:
- A written policy that prohibits sexual
harassment,
- Ongoing communication of that policy to
all employees (postings, handbooks),
- A procedure (internal grievance
procedure) for complaints to be raised at an appropriate level so that
corrective action will be taken, and
- Periodic training for all employees on
the above.
If all this fails and a complaint is
lodged, again the courts are clear that the employer must conduct, in good
faith, a "prompt" and "effective" investigation The
complaining party and witnesses must be protected, confidentiality must be
maintained and relief, designed to stop the behavior, must be implemented,
including termination if necessary.
In conclusion, sexual harassment is
divisive. It creates and maintains a "we versus them" mentality.
There is no place for this in today's workplace.
A "team" relationship is
essential in the highly competitive international environment employers and
employees face to day. Mutual respect is absolutely required.
We can prevent sexual harassment if we
remember the M/W/D Test. If we are not sure if our behavior is sexual
harassment, we should ask ourselves, "Would my behavior change if
someone from my family were in the room?" Or, try this one: "How
would I respond if this conduct were directed at my
mother/wife/daughter?"
Obviously, this last comment was directed
toward men. Almost all charges are led by women, against men. Nevertheless,
sexual harassment can be female to male and same sex.
Geoffrey Glaser is an HR attorney and
generalist with 25 years of experience and is a Human Resource Store
associate. You can access him through our legal hotline, which is included
in our package of Outsourced Human Resource Services, by calling us at
708-645-2530 24 hours daily.
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