With the antics of San Diego mayor Bob Filner being broadcast almost daily on the national news sexual harassment has become a hot topic once again. Not that it needed any additional publicity. Celebrities get occasional mention with an accusation of someone being harassed at this party or that. Unfortunately this often confuses the picture of sexual harassment as defined by the EEOC and Title VII. Those situations are indeed sexual harassment, but not as defined under the EEOC for the workplace. So to help clear this up here are the rules of the EEOC regarding sexual harassment in the workplace.
According to the EEOC sexual harassment consists of:
Unwelcome sexual advances, requests for sexual favors, and 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.
Who is covered?
Not all businesses are covered by this definition. Many small businesses are excluded. The EEOC states:
Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.
That is not to say that sexual harassment is OK in small business situations, it just means that the business cannot be sued by the EEOC. A civil case could still be possible if someone claimed some harm had occurred.
Quid Pro Quo
All good HR people and well-trained managers know that there are two components to sexual harassment. The first is the notorious Quid Pro Quo version. This is what most people define as sexual harassment. Stereotypically this is the male boss requiring of a female subordinate some act of sex in order for her to keep her job, get a pay increase, avoid some job action, or some other job action. Just one incident is enough to claim sexual harassment. The EEOC tells us that sexual harassment can occur in a variety of circumstances, including but not limited to the following:
- 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.
- 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.
- 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.
However, there is a second component of sexual harassment called hostile environment.
Hostile environment sexual harassment is the more pervasive, but at the same time is defined in the eye of the beholder. How I interpret something is important but just seeing it one time does not make for a case of sexual harassment. There has to be a pattern of behavior that creates this hostile environment. So a workplace where sexual innuendo, jokes, pictures, links to websites, etc. abound could be reasonably construed to potentially create a hostile environment to an employee, but not necessarily. If all parties involved don’t find it offensive then no harm. It certainly is not good HR practices to allow this, but until someone complains there is no foul. But when someone does complain then it needs to be taken care of to avoid the complaint escalating to a lawsuit.
In my reading of the situation of the San Diego mayor, this appears to be the type of harassment that has occurred. Another case, PATRICK KELLEY v. THE CONCO COMPANIES, shows that sexual harassment can be claimed even though both parties were the same gender and it had nothing to do with sexual orientation. (Warning: graphic language in the case description.)
Beware “innocent” fun
I am continually amazed when I read about sexual harassment that has been allowed to go beyond what most of us would consider reasonable bounds. Because we are “sexual creatures” by nature there is always going to be some small aspect of sex or attraction at play in the workplace. But one of the hallmarks of being human is our adaptability and thus our ability to abide by defined rules and patterns of behavior when they are established. The problem is some places don’t define these rules and don’t realize that sexual harassment is more than innocent fun. As I wrote in Sexual Harassment is more than Innocent Fun companies can pay out large settlements for allowing innocent fun to occur.
Policies, promptness and training
There are three key lessons for employers in this area. The first key lesson for all companies it the importance of having a good sexual harassment policy. Define for employees the company’s position on sexual harassment.
The second lesson is to investigate promptly. Any rumor, any report, any suspicion should be investigated to the extent possible. Promptness in investigation is considered as important as I detailed here.
The third lesson is to train supervisor, managers and employees on a regular basis, as I wrote about in Teach Employees about Sexual Harassment. A little education goes a long way in both prevention and defense.
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