Sexual harassment violates Title VII, the Civil Rights Act of 1964 because it is a form of discrimination based on gender. Not only that, but each state also has its own sexual harassment laws. The actions that constitute sexual harassment are fairly broad. Making unwelcome sexual advances, requesting sexual favors, and verbal or physical behavior that is sexual are certainly a part of it. If permitting or rejecting these actions can affect whether someone is able to keep or do a job, or if the work environment could be considered intimidating, hostile, or offensive by a reasonable person, then by definition, an employee could claim sexual harassment.
The reason the government takes sexual harassment seriously is plain: you would not be allowed to run a business where it was extremely likely your employees could be hurt or killed, and this is not much different. Sexual harassment is not harmless; it hurts people, and it is bad business. You have a legal obligation to provide a workplace that is free of harassment. Failing to do so will cost you a great deal in terms of employee morale, lost productivity, and — if these are not enough of a consequence by themselves — money and time spent paying lawyers and going to court.
You may know all of that already. You may not be aware, however, of just how broad the law is when it comes to harassment:
• Some people think that sexual harassment only occurs if a male supervisor harasses a female subordinate. But both the victim and the harasser can be of either gender, and they can also be the same gender. Generally this is interpreted to mean heterosexual harassment, such as a married man being harassed with inappropriate pictures and jokes. The U.S. Supreme Court has not addressed whether it is illegal to harass gays and lesbians, and the lower courts have handled the matter in a variety of different ways. The safe thing to assume is to consider harassment of gays and lesbians just as illegal as harassing someone who is heterosexual. This is an area of law that has not yet been worked out, which means it is also not something you want to have decided in a courtroom.
• Although the harasser might be the victim’s supervisor, it’s also possible for the harasser to be a co-worker, a supervisor from a different area, someone who doesn’t work at the company, or someone who is working on behalf of the employer. The harasser might even be a vendor or a customer.
• Anyone who is affected by offensive conduct — not just the person who is being actively harassed — can be considered a victim.
• The victim doesn’t have to suffer monetary damages or lose a job.
There is one other important requirement in order for something to be considered sexual harassment: the harassment has to be unwelcome. If an employee thinks that it might be necessary to prove the harassment is unwelcome, then the first step is making that plain. This requires action on the part of the victim. For example:
• It’s a good idea for the victim to tell the perpetrator directly that whatever is going on is unwelcome and has to stop.
• If there is some sort of process set up for complaining or resolving grievances, the victim should take advantage of that, too.
• It would be wise for the victim to document both the harassment and any efforts to stop it in a private journal. Then the victim can have a better hope of being able to prove the harassment was unwelcome, other than just claiming it later on.
The agency that investigates claims of sexual harassment is the Equal Employment Opportunity Commission (EEOC). When a claim is brought to the attention of the EEOC, the people who look into it are going to look at a company’s entire record. They will want to know what kind of sexual advances were made, and what the context was. They examine any allegations that are made on an individual basis, one case at a time.
The best thing a company can do when it comes to sexual harassment is to prevent it from happening in the first place. That starts with the following steps:
• Write a policy where it is made clear that the company does not tolerate any form of sexual harassment. A good place to put this policy would be in the employee handbook.
• Teach both employees and supervisors what the policy is, and then tell them what to do if a situation involving sexual harassment comes up. Have training sessions at least once a year. You can’t just train people once and expect it to last forever. People change jobs, and even if they’ve heard what you have to say before, it doesn’t hurt to say it again. Conduct separate sessions for managers than for employees; that way, you can focus on what is relevant to each group.
• If something does happen and someone does make a complaint, don’t ignore it. Take action as promptly as possible. There can be no exceptions; managers and supervisors have to be held to the same standards of conduct as anyone else. When you are writing your policy about sexual harassment for the employee handbook, make sure the section includes the following:
• Define what sexual harassment is.
• Make it plain that sexual harassment will not be tolerated.
• State the consequences if it does occur, such as disciplining or firing anyone who is involved.
• Clearly outline what the process is for making a complaint or resolving a grievance.
• Tell your employees that if someone does make a complaint, it will be investigated and resolved.
• Finally, tell your employees that you will not tolerate retaliation against anyone who complains.
Once you’ve trained everyone and you have a plan of action on paper for people to refer to, you are not done. You also need to be aware of what is going on in your company. Walk around. Talk to people. Pay attention, and don’t expect that everything is fine. If you see something that concerns you, talk to your supervisors about it.
Employees do tend to take their cues from management. Making it clear that sexual harassment is unacceptable, and backing it up with policy, might be enough to prevent any kind of sexual harassment from happening in the first place. But if it does happen, you and your company will be prepared, and, hopefully, you will have created an environment where people can trust that they can appeal to your company for help and that your company will put an absolute stop to the problem.
Sexual harassment is one of those things that tends to increase in severity over time. The more you ignore and tolerate it, the more likely it is to pervade the company. You don’t want that.
It is, of course, still possible that sexual harassment could take place within your company even when you put a policy in place to prevent it. But the more clearly you communicate that sexual harassment is not to be tolerated, and the more you back that policy with solid, demonstrable action, the less likely it is you will deal with a serious problem. More than that, you will also have reduced or eliminated your liability.