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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.
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.
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:
- Update existing sexual harassment policies to include same-sex
harassment and communicate the policies to all employees.
- Educate all managers and supervisors about sexual harassment,
including same-sex harassment.
- Ensure that all employees are aware of the proper procedures
for reporting harassment internally.
- 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.
- Ensure that all employees can report claims without fear of
retaliation.
- 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.
- Be aware that once any supervisor knows about a claim of sexual
harassment, the knowledge is imputed to the company.
- 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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