SexualHarassment - Facts About Sexual Harassment lnfl

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Unformatted text preview: Facts About Sexual Harassment lnfl http://www.eeoc.gov/facts/fs-sexhun‘ The US. Equal Employment Opportunizy Commission Facts About Sexual Harassment Sexual harassment is a form of sex discrimination that violates Title VH of the (Eivil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of 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: o The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex. 0 The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee. o The victim does not have to be the person harassed but could be anyone affected by the offensive conduct. 0 Unlawful sexual harassment may occur without economic injury to or discharge of the victim. o The harasser's conduct must be unwelcome. It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available. When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case—by—case basis. 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 clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains. This page was last modified on January 15, 1997. Eeturn to Home Page 8/26/99 11:11 http://freenetbuffalo.edu/~singles/sex-har ,7 . From‘hu‘s websnkt Understanding and stopping sexual harassment http://freeneLbuffalo.edu/~singleS/SeX-har How do you know if it's sexual harassment? To constitute sexual harassment, conduct must be all of the following: (1) sexual in nature; (2) unwelcome to the recipient; and (3) related to the workplace by creating a "hostile working environment" or a "quid pro quo" demand. How is "Sexual in Nature" defined? The most obvious kind of sexual conduct involves intentional phys1cal contact, ranging from romantic touching to blocking the victim's movement while making a pass to actual sexual assault. But conduct need not include physical touching to qualify as sexual harassment. It might be verbal or visual. Verbal sexual harassment can include propositions or requests of a sexual nature, or requests for dates. It can also include comments about the victim's body or sexuality, including her sexual reputation. Jokes or derogatory comments relating to sex may also constitute harassment. Visual sexual harassment can involve displaying sexually related pictures, cartoons, or objects, or placing such objects in places intended for the victim to find them, such as a personal locker in the workplace; sexual gestures, leering or staring; or written communications such as notes or letters that are sexual or romantic in nature. If you suspect you are being sexually harassed but the behavior to which you are being subjected does not fall within one of the above categories or examples, that does not mean harassment is not taking place. If you feel the conduct is being directed towards you because of your sex, and the remaining two criteria are fulfilled, sexual harassment may be taking place. when Is Conduct "Unwelcome"? "Unwelcome" is difficult to define and has been defined differently by different courts. It is safe to say, however, that unwelcome conduct is behavior that you, the recipient, regard as offensive or undesirable and that you did not solicit. To try to determine if conduct is "unwelcome," courts look at the situation as a whole. Unfortunately, this is one area where the claimant is implicitly on trial. Under current law, the court may still take into account such factors as the claimant's dress or behavior to determine if it has appeared sexually aggressive or inviting. Still, if a woman has failed to reject the harasser's overtures or to complain promptly about it, the court will not necessarily find that harassment did not take place. It also does not matter that she may have welcomed sexual conduct by someone else in the workplace, as long as she did not welcome such conduct by the harasser. However, if she previously welcomed sexually—related conduct by the harasser, such as dating, and later found it unwelcome, she must have made clear to the harasser that further sexual conduct was undesirable. What is a "Hostile Working Environment" or a "Quid Pro Quo" Demand? when courts first started hearing claims of sexual harassment, only the "quid pro quo" type was recognized. In this type of harassment, the claimant must submit to sexual conduct in order to continue receiving the benefits of employment in that workplace. Quid pro quo harassment almost always takes place where the harasser is a supervisor or other superior of the claimant with power over the claimant's salary, advancement, or continued employment within the organization. The harasser either explicitly tells the claimant she or he must comply with the harasser in some specifically sexual way in 1 of 5 - 9/9/97 10:48 1 http://freenetbuffalo.edu/~sing1es/sex-har http://freeneLbuffalo.edu/~singles/sex-har order to retain certain benefits, or implies this requirement in some way. In other words, the claimant must do more than perform her work for the employer to remain employed or to be paid: she must also cooperate with the harasser's sexual agenda. This agenda does not have to include actually performing sex. "Hostile working environment" harassment has been recognized more recently. It may co—exist with quid pro quo harassment, but is also sufficient on its own to justify a legal claim. In this type of harassment, the conduct is so severe or pervasive that it changes the very conditions of employment, making the work environment hostile. For example, an employee arrives at work every morning to find that someone has left suggestive literature on her desk. This behavior continues over a period of weeks, so that dealing with the offensive literature becomes like part of the job and causes the employee to dread going to work. The harasser has created a hostile working environment. If her boss is leaving the literature and one day tells the employee that he wants to try some of the things in the article with her, and that a lot of administrative assistants would love to have her job, quid pro quo harassment is also taking place provided the employee finds the boss's conduct unwelcome. While hostile working environment harassment often takes place over time, it is possible that a single unwelcome sexual touching can create such an environment. So can harassment directed at someone other than the claimant. The harasser's viewpoint of his conduct does not determine its legality. A supervisor may take for granted it is his privilege to paper the wall of his office with pinups of nude females, but if his female secretary is required to be exposed to them and finds the exposure unwelcome, harassment may be found to exist. Preventing and dealing with sexual harassment The worst thing an employer can do about harassment is nothing. In the eyes of the law, an employer that does its best to prevent harassment is in a stronger position than one who doesn't if, despite all the employer's efforts, harassment occurs and a claim is filed. In the eyes of employees, it is the employer who must take the lead to define what will not be tolerated in the workplace and what will happen if those boundaries are broken. Preventing Harassment An employer should have a clearcut harassment policy and not hide the fact. The policy should include a description of conduct that constitutes harassment; a statement supporting employees' rights to complain about sexual harassment without retaliation and a description of how to make the complaint; and an explanation of the procedure that will be used to investigate a harassment complaint and the standards that will be used to evaluate it. The policy should make clear that the company will not tolerate harassment and that offenders will be penalized and claimants protected, and that fair and objective means will be used to achieve these goals. The policy should be posted and distributed to all employees if possible; at least, it should be posted prominently. The single most effective action any company can take is for its management to set an example and to speak out clearly and authoritatively. The best policy and program can be undermined or even destroyed if company leaders speak jokingly or derisively about sexual harassment, or engage in behavior that sets a poor example. Dealing with Harassment ' The complaint procedure section of your harassment policy is critical to successfully processing a harassment claim. An employee must know to whom she or he can go to make a complaint. Once the 0 AM 9/9/97 10:4 hrtp://freenet.buffalo.edu/~sing1es/sex-har hrtp;//freenet.buffa10.edu/~singleS/Sax_h complaint is made, the employer must take action right away. The employer should: ——Inform the claimant of her rights to recover for any injury which may have taken place. These rights will vary from state to state. Your attorney can provide you with current information regarding claimant's rights in your jurisdiction. ——Promptly investigate the claim with sensitivity, care and confidentiality. You may find it helpful to obtain a copy of the EEOC (Equal Employment Opportunity Commission, an aged; of e United States Government) March 19, 1990 "Policy Guidance 8fi7§e2%31 arassment." (Check the government pages of your local telephone directory to fifid~‘\\\ the EEOC office nearest you, or call 1—800-EEOC—USA ) 1 have a cofy oFfiu‘s dummen'f ‘ on res.er in‘l’kz Mau‘n . . . . L a -' Ra . It is very important that the investigator/s be néfifgg} £3 E t '\F intimidating, and that they make clear their goal is to arrive at the truth, not slant it or cover it up. The investigators should thoroughly interview both the claimant and the alleged harasser to determine specific charges and responses to those charges. Conducting an Investigation Remain neutral and protect privacy If the harasser admits to the offending conduct and commits to stopping that conduct, and if the claimant is satisfied with that solution, or if other sanctions and remedies can be agreed upon, it may be possible to make the claimant completely secure and appropriately discipline the harasser without knowledge of the investigation spreading through the workplace. This is desirable to safeguard both the claimant and the alleged harasser. Attorneys state that in many cases when news of a complaint becomes widespread, the end result may be loss of the victim's job. However, if the harasser does not admit the conduct, and the investigators believe that more information is necessary, other witnesses may also be interviewed. It is important that in questioning other employees, the investigators remain neutral and strive to preserve the dignity of both the claimant and the alleged harasser to the greatest extent possible. In determining what happened, investigators should assess the credibility of all the people they interview.~ Finally, the stated procedure for investigations should be followed to the letter for all complaints, regardless how credible they appear at first. Protect employees from additional damage or retaliation Employers must protect the claimant and any other possible victims from further harassment. It is not protecting the claimant to move her to another position away from the harasser if this move has a detrimental effect on her compensation or other condition of employment. If the claimant feels strongly that her safety is in question, physical protection should be provided as necessary, including before, during and after the investigation. If you find harassment occurred, discipline the harasser. The EEOC guidelines mentioned above are helpful in formulating appropriate discipline. Factors to take into account include the effect of the harassment on the claimant; whether the harasser has a prior "record" of harassment and had knowledge of the company's policy; the severity of the harassment; and the harasser's employment record and rights under an employment contract, if applicable. Discipline may range from an oral warning for very minor harassment, to immediate termination for severe harassment. If the harasser remains in the workplace, follow up to make sure he has not retaliated against the claimant and that the harassment has not resumed. Inform the claimant about the discipline applied to the harasser. 3 of 5 9/9/97 10:48 1 http:/'/freenet.buffalo.edu/~singles/sex-har http://freenet.buffalo.edu/~s ingles/sex-he Note: The American Arbitration Association offers fact-finding teams for sexual harassment claims. For information, call 212 484 4040. What legal consequences do employers face? Under current law, both state and federal, sexual harassment is illegal but is not a crime —- that is, neither the employer nor the alleged harasser may be imprisoned if a court finds that harassment occurred. However, because sexual harassment is a civil offense, the court may impose financial penalties on an employer whose employee was harassed in a work—related context. In addition, certain size criteria limit whether an employer may be sued for work-related sexual harassment: under California law, for example, an employer need have only one employee for relevant state law to apply (unless the employee's claim is for retaliation, in which case the threshold is five employees). Even the company that follows all the suggestions above may find itself facing potential legal liability for harassment in its workplace. An employer is not necessarily "safe" even if it did not know about the harassment before receiving a complaint, or if it had adopted and promulgated a specific harassment policy —— or even if it had warned the harasser in question to stop the offensive conduct. In some cases employers have been held liable for harassment in the workplace by nonemployees such as customers or vendors. In such cases the court tries to determine whether the employer knew or should have known about the offensive conduct and how much control the employer had over the offender. The best protections against lawsuits based on sexual harassment are preventive: taking a firm stand against harassment and making it clear harassment in your workplace will not be tolerated. A strong preventive stand on harassment not only deters potential harassment, but may stop existing harassment before the victimized employee quits employment because of the harasser's conduct. Once such a quit occurs, the claimant may bring a wrongful termination action against her or his former employer. If the former employee proves that harassment had created an intolerable work environment, her chances of recovery are good. In some jurisdictions the court may allow the claimant to bring other claims, such as assault and battery or invasion of privacy. Employers should be aware that alleged harassers have also sued their employers as a result of harassment claims against them, even when strong evidence exists that they committed the harassment. Possible claims include defamation, invasion of privacy, or wrongful termination. Employers should make every effort to preserve the dignity and privacy of individuals accused of harassment and should make sure harassment investigations are conducted fairly and scrupulously to avoid this type of complaint. Although a claim may be without merit, a harasser who will not admit his conduct may invest considerable emotional energy in asserting his innocence and may direct anger towards both the employer and the claimant and may try to channel this anger through the legal system as far as it will go. Please Note: Sexual harassment is unlawful under both state and federal law. Because laws regarding sexual harassment vary from state to state, this article discussed sexual harassment under federal law. Nothing in this article should be construed as legal advice. For actual legal advice, or for information about laws specific to your state, consult an attorney. Copyright (c) 1991, DataLine. All rights reserved. This article may be redistributed provided that the article and this notice remain intact. Under no circumstances may this article be resold or redistributed for compensation of any kind without prior written permission. Contact DataLine at 848 A AM 9/9/97 10:4 ...
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SexualHarassment - Facts About Sexual Harassment lnfl

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