What is Sexual Harassment?
Sexual harassment
is unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature. Unwelcome sexual conduct
is unlawful when such conduct either (1) is made a term or condition
of an individual’s employment or (2) has the purpose of effect of
unreasonably interfering with an individual’s work performance or
creating an intimidating, hostile or offensive working environment.
There are Two
Types of Sexual Harassment as defined by the Courts:
"Quid
Pro Quo"
"Something
for something:" This type of sexual harassment usually involves
supervisors who use:
- Threats - firing,
blocking promotion, transferring, or giving a bad evaluation, if
a person does not go along with sexual advances.
- Rewards - hiring,
promoting, or giving a raise if a person does go along.
- For Example:
A female secretary is told by her boss that her job will be upgraded
if she goes along with his demands for sexual favors.
- A male file
clerk is promised a promotion to assistant office manager if he
agrees to have an affair with the female office manager.
"Hostile
Environment"
This
covers regular and repeated actions, or things displayed around
the workplace that "unreasonably interfere" with job performance
or create an "intimidating, hostile or offensive" work
environment.
Examples: Invitation
for dates which do not stop when the response is negative; uninvited
and deliberate touching or "accidental" brushing against
a person’s body; uninvited "friendly" pats, squeezes,
pinches, neck rubs, or other forms of physical contact; uninvited
letters, phone calls or gifts, sexually explicit or suggestive materials
such as pinups or sexually degrading cartoons posted in the work
site; uninvited sexually suggestive looks, constant leering, ogling
or gestures; uninvited sexual teasing, remarks or questions regarding
an employee’s personal life.
Usually a single
incidence of nonphysical sexual conduct will not create an offensive
work environment. Generally a pattern of offensive conduct is required
when nonphysical sexual conduct is involved.
Other
Types of Unlawful Harassment
Any type of harassing
behavior may be unlawful if it involves discriminatory treatment on
the basis of race, color, sex, religion, national origin, age of 40
or older, disability, or protected activity under the anti-discriminatory
statutes (Title VII of the Civil Rights Act, Title IX of the Higher
Education Act, etc.). However, the anti-discrimination statutes
are not meant to be general codes. According to the EEOC Enforcement
Guidance, "simple teasing, offhand comments, or isolated incidents
that are not extremely serious are not prohibited. Rather, the
conduct must be so objectively offensive as to alter the conditions
of the victim's employment." Furthermore, "the conditions
of employment are altered only if the harassment culminated in a tangible
employment action or was sufficiently severe or pervasive to
create a hostile work environment."
The
Reasonable Person Standard
A person who is
experiencing a repeated pattern of the above may feel like such behaviors
make it almost impossible to be productive at work. Courts apply the
reasonable person standard test asking "what would a reasonable
person think is out of bounds or interferes with work?" If a
"reasonable person" would consider the conduct sufficiently
severe to create an abusive working environment, a violation of Title
Vll has occurred.
Because supervisors
are in a position of power, they must be especially sensitive of the
way their actions and interactions with employees are or could be
perceived. A clear understanding of what constitutes sexual harassment
is absolutely essential to a supervisor in terms of preventing harassment
in their work group and preventing claims of harassment against them.
Federal
& State Regulations Regarding Sexual Harassment
- Sexual harassment
is against the law. Sexual harassment is sex discrimination under
Title IX of the Education Amendments of 1972 and Title VII of the
Civil Rights Act of 1964. Under these laws, educational institutions
are responsible for preventing sexual harassment of their students
and employees. Sexual harassment is also a violation of campus policy.
- Title VII of
the Civil Rights Act of 1964 prohibits discrimination on the basis
of sex. Although the statue was enacted in ‘64, it was not until the
mid 70’s that federal courts began to address the issue of sexual
harassment as a prohibited form of discrimination.
- Washington Law
against discrimination provides that it is an unfair practice for
any employer to discriminate against any person in compensation or
in other terms or conditions of employment because of sex.
Federal
Employment Law Chart
Sexual
Harassment Policy and Procedures
- Procedure
(see full policy in Staff Handbook)
- Grievance Officers
- Associate
Provost and Dean of Student Life
- Faculty
Representative
- Director of Human Resources
Grievance Officers will not always handle
a complaint on a formal basis using the formal process, however, the
key is to take immediate and appropriate action to resolve
a complaint. That may mean a more informal process depending on the
circumstances.
Supervisors should
not hesitate to contact a grievance officer if an employee comes to
them with a comment or complaint of questionable or inappropriate
behavior. The role of the grievance officer is to give advice to those
who are either unsure about whether or not they’ve been sexually harassed,
but who are feeling uncomfortable in their work environment, or to
those wishing to file a sexual harassment grievance. The grievance
officer will facilitate the grievance procedure or other appropriate
action.
Confidentiality
Accusations of sexual harassment can
cause extreme pain and hardship on both those accusing and those
being accused. It is very important that all matters pertaining
to a complaint of sexual harassment be kept as confidential as possible
and shared only on a need to know basis.
It is not uncommon for alleged harassers
to file libel and slander suits. Information should only be shared
on a need-to-know basis. If someone you work with brings a
complaint to your attention you should immediately refer them to
one of the grievance officers and advise them not to discuss their
complaint with others. Document all conversations carefully!
No Retaliation
Supervisor
Responsibilities
Supervisors
must be keenly aware of their obligation to create a work environment
that is free from harassment or discrimination. According to
the EEOC's Guidance on Vicarious Liability, "An employer is always
liable when a supervisor engages in harassment that culminates in
a tangible employment action."
- Don't
ignore harassing behavior or informal complaints! The EEOC states,
"Employers must exercise reasonable care to prevent and correct
promptly any harassing behavior." You have an obligation
to effectively respond to a complaint, even if the employee later
tells you that they're not interested in filing a formal complaint.
- Be
aware of your special responsibility to be knowledgeable about sexual
harassment and be sensitive to its impact on others.
- Try
to create a learning and working environment that actively discourages
behavior that could be viewed as risky or sexually harassing, both
by clearly informing others about expectations for appropriate
professional behavior in the workplace and by serving as a behavioral
role model.
- Make
certain that those you supervise are familiar with the University’s
policy on sexual harassment and grievance procedures.
- Encourage
reporting, treat incidents seriously, respond quickly, respect confidentiality
and prohibit retaliation against anyone who files a complaint.
The
University’s liability rests in whether or not immediate and appropriate
action is taken on a claim of harassment. As a supervisor, you have
the responsibility to act quickly when you hear of a complaint. You
must not promise someone who is sharing their situation with you that
you can keep it confidential as the University could be held liable
for inaction when they "knew or should have known about a sexual
harassment complaint". As a supervisor, the University depends
on you to keep your area free from liability. When in doubt about
how to follow through on a claim of harassment or something you think
might qualify as harassment, immediately contact one of the University’s
grievance officers.
Questions
and Answers
1. Can
men be sexually harassed?
2. In
my department, we give each other friendly hugs and pats on the
back from time to time. Should supervisors be concerned about this?
3. If
the complaint involves a person who works with the University but
is not employed here (vendors and independent contractors), are
we required to do anything?
4. What
about consensual relationships?
5. As
a supervisor, what should I do if someone comes to me with a compliant?
Question
1: Can men be sexually harassed?
A:
Yes. Sexual harassment has a lot to do with power. Women in positions
of power have been accused of sexually harassing male subordinates.
Also, homosexual or bisexual people have been accused of sexually
harassing subordinates or colleague of the same sex.
Question
2: In my department, we give each other friendly hugs and
pats on the back from time to time. Should supervisors be concerned
about this?
A:
Remember, whether or not a person feels sexually harassed depends
on the feelings of the receiver of the treatment. Where
one person may feel perfectly comfortable with an occasional hug,
or pat on the arm, another person may take offense. Remember that
the courts will apply the "reasonable person" standard.
Use your best judgment, but your best bet is to error on the side
of no physical contact especially if you’re in a position
of power (which supervisors often are).
Question
3: If the complaint involves a person who works with the University,
but is not employed here (vendors and independent contractors),
are we required to do anything?
A:
Yes. The University is responsible to take action on employee
complaints regardless if the alleged harasser is a regular employee
or an independent contractor. As a supervisor, you should keep
your eyes open!
Question
4: What about consensual relationships?
A:
Many people find their life mate through an employment relationship.
Where dating in the workplace becomes a problem is when a relationship
turns sour. For example, a supervisor is dating her subordinate.
The subordinate breaks up with the supervisor. The supervisor
then promotes another employee. Regardless of whether the promotion
was legitimate, the employee may claim discrimination/sexual harassment.
Or, say two peer employees are dating and then employee A breaks
up with employee B. Employee B can’t live without employee
A and repeatedly pursues employee A (sometimes at work) against
employee A’s wishes. Employee A may claim hostile environment
sexual harassment. Keep a watchful eye on consensual relationships
within your department.
Question
5: As a supervisor, what should I do if someone comes to me
with a complaint?
A:
It depends on the situation. If one of your subordinates confides
in you that they are uncomfortable with the treatment another
member of the department is directing towards them, but they don’t
want to talk to anyone about it, you do have a responsibility
to act as an agent of the University. Don’t promise confidentiality.
If what’s
being described is discomfort with an "offhand" comment
where there’s no pattern, or for an example, a shoulder rub
where there’s no pattern, it may be best to advise the employee
to make it clear to their coworker that the behavior is causing
discomfort and to "please stop". If you choose this
route, be sure to follow up with the complaining employee at a
later date, encourage the employee to talk to a grievance officer
if the treatment does not improve, keep your conversations confidential
where appropriate, document everything, and feel free to contact
a grievance officer for advice. But remember, you must take some
immediate and appropriate action.
If what’s
being described is blatant physical touching or "quid pro
quo" in nature, ask the employee to report it immediately
to a grievance officer and if they refuse, you must do so on their
behalf.
|