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Court Expands Views of Sexual Harassment


By Mary C. Beard, Kentucky Employers' Mutual Insurance

One of the most important issues employers face today is that of sexual harassment. According to the U.S. Equal Employment Opportunity Commission, sexual harassment is a form of sex discrimination that violates the Title VII of the Civil Rights Act of 1964. Two types of harassment fall under Title VII. They are Quid pro quo where an employee actually suffers a loss, or Hostile Environment, where the employee is placed in an environment that is abusive or highly uncomfortable. Situations of sexual harassment are created very easily and so often that it is most times overlooked. In order to protect your company from dealing with unwanted liability for sexual harassment, an in-depth knowledge of what exactly sexual harassment is and what can be done to prevent it is necessary.

Many companies put policies in action long ago that prevented the "office flirt" from massaging his secretary's shoulders, however American workplaces now have to face an issue that they had managed to avoid in the past. In 1998 the U.S. Supreme Court ruled that a certain type of sexual harassment existed and had been overlooked: sexual harassment between members of the same sex. The case of Oncale v. Sundowner Offshore Services, Inc. involves a Louisiana man who claimed that he was sexually assaulted by two male supervisors and a male co-worker. They allegedly repeatedly sexually taunted him and on one occasion held him down while they assaulted him in the showers with a bar of soap. The Supreme Court ruled that same-sex harassment is a form of discrimination that an employer should not engage in or allow to occur in the work place. The court said that men are capable of sexually harassing other men, just as women are capable of harassing other women. Further, the sexual orientation of the individual is not important to be in violation of the law.

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Sexual harassment continues to occur in the workplace, existing in countless forms and different circumstances. The law requires that the workplace be free of sexual harassment, therefore employers can be held responsible for suffering whether they are aware of it or not. The most important thing is to recognize that the conduct must clearly be unwanted. In order for there to be a hostile work environment, the behavior must be severe and pervasive. Sexual harassment can affect any person in the workplace; the harasser can be a supervisor, an agent of the employer, a co-worker or even a non-employee. Interestingly, anyone affected by the offensive conduct, not just the victim, can report sexual harassment. Also, sexual desire need not be present between the two people in order for sexual harassment to occur. For example, if a male employee claims a male supervisor sexually harassed him, the employer cannot claim it did not exist because both men are heterosexual.

Examples of unreasonable conduct can be, but are not limited to: unwanted sexual advances such as flirtations or propositions; sexually oriented noises, remarks and jokes; demands for sexual favors; asking intrusive sexual questions; a display in the workplace of sexually suggestive objects; comments about a person's sexuality or sexual experiences; unwanted letters, gifts, telephone calls or e-mails of sexual nature; and the intentional touch in any way whether it be squeezing, stroking, pinching, tickling, massaging, patting or brushing against a person without his or her consent.

The fear of retaliation stops many from reporting sexual harassment. If employers could punish employees for complaining about sexual harassment, the laws in place would not be effective. As a result Title VII makes it illegal for an employer to take actions such as termination, demotion or reduction in wages against an employee who makes a claim. An employee can claim to be a victim of retaliation even if the original claim of sexual harassment proves untrue. If the employer takes an adverse action against the victim within six months after the claim, this can be viewed as evidence of retaliation.

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Sexual harassment is a serious event. Ignoring the situation or assuming it will stop is allowing the offenders to repeat the behavior against others in the office, exposing your company to legal consequences. Many mistakes that can easily be avoided may occur when sexual harassment claims are made. One of the most common mistakes is that the report isn't taken seriously. Employers should never ignore any claim of sexual harassment. An immediate response to any claim of sexual harassment is the safest thing to do in all situations.

Preventative training is vital in protecting your company. Employers should clearly communicate that sexual harassment will not be tolerated. Proper preventive steps include:

  1. Update existing sexual harassment policies to include same-sex harassment and communicate the policies to all employees.
  2. Educate all managers and supervisors about sexual harassment, including same-sex harassment.
  3. Ensure that all employees are aware of the proper procedures for reporting harassment internally.
  4. There should be multiple people available to whom an employee may report an incident so that the employee is not circumscribed to one person, who may be the alleged harasser.
  5. Ensure that all employees can report claims without fear of retaliation.
  6. Investigate all forms of sexual harassment promptly and completely. When handling the situation, the employer should be sure to be objective, hearing both sides of the story and properly investigating and documenting the interaction between the individuals.
  7. Be aware that once any supervisor knows about a claim of sexual harassment, the knowledge is imputed to the company.
  8. Immediately take appropriate action against any improper conduct with consistent punishments.

These preventative methods may not completely eliminate sexual harassment in the workplace, but are a step in the right direction. An educated and aware staff is key to reducing sexual harassment in the workplace and preventing any future liability.

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