Contact Hours: 1
This online independent study activity is credited for 1 contact hours at completion.
To provide healthcare providers an overview of sexual harassment in the workplace, steps for reporting, and considerations for employers when a complaint is received.
Sexual harassment is a common occurrence in the workplace. Its estimated that 50% of women and 20 % of men have experienced sexual harassment at work. Although it is a common occurrence, often, individuals are not aware of the various steps to submit a complaint, or what they should expect from their employer. This independent study provides an overview of sexual harassment as defined by Fair Employment and Housing Act and Title VII of the Federal Civil Rights act of 1964.
Upon completion of the independent study, the learner will be able to:
- Define sexual harassment.
- Describe inappropriate work behaviors as it relates to the Fair Employment and Housing Act.
- Understand Title VII of The Civil Rights of 1964 and its influence on workplace discrimination.
- Review steps for reporting sexual harassment.
- Review employer responsibilities once sexual harassment has been reported.
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Sexual harassment is illegal and not tolerated in any workplace. Its estimated that 50% of women and 20 % of men have experienced sexual harassment at work. ² Sexual harassment can inflict serious damage on an origination’s productivity and morale and individuals named in sexual harassment complaints could lose their job, reputation, and even their careers. Also, employees can be found personally liable in court for acts of harassment. Federal law defines Sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature 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.” This is further defined by the Fair Employment and Housing Act and Title VII of the federal civil rights act of 1964. Sexual harassment can occur in a variety of conditions, including but not limited to the following³:
- The harasser’s conduct must be unwelcome.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- 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.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The Department of Fair Employment and Housing is responsible for enforcing state laws that make it illegal to discriminate against a job applicant or employee. The Fair Employment and Housing Act (FEHA) applies to public and private employers, labor organizations and employment agencies. ³ It is illegal for employers of five or more employees to discriminate against job applicants and employees or retaliate against them because they have asserted their rights under the law. And, even if an employer has less than five employees, harassment is still prohibited in all workplaces. The following inappropriate behaviors are specifically mentioned by the FEHA act as forms of sexual harassment³:
- Gossiping or spreading rumors about sexual topics or engaging in sexual conversations that are overheard by others.
- Leering, making sexual gestures, or displaying sexually suggestive objects, pictures, cartoons, or posters.
- Making derogatory comments about one’s sexual orientation, gender identity, or gender expression.
- Making graphic, sexual comments about an individual’s body.
- Making inappropriate remarks or jokes about a woman’s pregnancy, childbirth, or other related medical conditions.
- Making or using derogatory comments, epithets, jokes, or slurs.
- Offensive, gender-based comments that degrade others such as “a woman’s place is in the kitchen, not the boardroom.”
- Physically assaulting a coworker or impeding or blocking an individual’s movements or ability to work.
- Threatened or actual retaliation for filing a sexual harassment complaint.
- Unwanted sexual advances like flirting, propositions, or repeated requests for dates.
- Unwanted touching such as shoulder massages, hugging, and back scratching.
- Using demeaning or offensive names, such as honey, sweetie, baby, hottie, girl, boy, or hunk.
- Using sexually degrading words to describe an individual or sending suggestive or obscene letters, notes, or invitations.
Sexual harassment is harassment based on sex, gender, pregnancy, childbirth, or other related medical conditions. There are two types of sexual harassment; quid pro quo, and hostile environment.
Quid pro quo
Quid pro quo sexual harassment occurs when a manager or supervisor withholds, or awards job benefits based on sexual behaviors. This includes work assignments, promotions, demotions, hiring, termination, positive or negative performance reviews, or any other job-related benefit. Quid pro quo is a serious offence, and often just one instance is enough for a plaintiff to win a lawsuit.
In many states, managers and employers can be held liable in a lawsuit, even if a threat was only implied and not carried out. For example, a manager who suddenly blocks a subordinate employee’s promotion after the employee asks the manager to stop rubbing her shoulders could be found guilty of quid pro quo sexual harassment even though there was no verbal threat of adverse employment action. Additionally, in some states, the courts have ruled that managers and their employers cannot require employees to tolerate unwelcome sexual advances as a condition of employment. For instance, a supervisor at a restaurant could be found guilty of quid pro quo harassment if he tells his employees that they should put up with lewd comments or inappropriate touching because the behavior is expected when employed as a waitress.
Hostile environment occurs when the conduct unreasonably interferes with an individual’s work performance or creates and intimidating, hostile, or offensive working environment. Federal courts have adopted the “reasonable person standard” when addressing sexual harassment, which questions whether a reasonable person would find the behavior offensive. ² Most behaviors that are continuous, unwanted, and based on sex meet this standard. The safest way to avoid sexual harassment is to avoid these behaviors entirely. Hostile environment sexual harassment can occur between employees of the same sex, between employees of different sexes, and between employees of any rank or position within an organization. Harassing jokes, comments, or other behavior can create a hostile work environment even if the jokes or comments are not directed at the individual making the sexual harassment complaint. For example, a transgender individual who was forced to endure jokes and hostile comments on sexuality by coworkers, even if the comments were not directed at them personally may have the legal basis to file a sexual harassment complaint.
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Acts of 1964.⁴ Before Title VII of The Civil Rights of 1964 was signed into law, an employer could reject an applicant because of their sex, race, religion, or national origin. An employer could also decline to promote an employee, decide not to give them an assignment, or in some other way discriminate against that person. Title VII applies to state and local governments, employment agencies, labor organizations, as well as employers with 15 or more employees. ⁴ Title VII was created to prohibit discrimination in employment because of ⁴:
The following provides a brief overview of selected areas of Title VII ⁴:
It is unlawful for an employer to refuse to hire or discharge any person, or to discriminate against them because of their race, color, sex, religion, or national origin in respect to compensation, terms, conditions, or privileges of employment. It is also unlawful for an employer to limit, segregate, or classify employees or applicants for employment in any way which would deprive them of employment opportunities.
Employment agency practices
It is unlawful employment for an employment agency to fail or refuse to refer for employment, classify, refer for employment, or discriminate against any person because of their race, color, religion, sex, or national origin.
Labor organization practices
It is unlawful for a labor organization to discriminate against any person or exclude them from its membership because of their race, color, religion, sex, or national origin. It is also unlawful to limit, segregate, or classify its members or applicants for membership or employment, or fail to refer any person for employment in any way that would deprive or limit them of employment opportunities because of one’s race, color, religion, sex, or national origin.
It is unlawful for any employer, labor organization, or joint labor management committee controlling apprenticeship or any other training to discriminate against any person because of their race, color, religion, sex, or national origin in admission or employment in any program established to provide apprenticeship or other training.
It is not however, unlawful practice for an employer to hire employees, or refer anyone for employment based on their religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that business or enterprise.
It is not unlawful practice for an employer to refuse to hire or discharge any person for a position, if the position or access to the premises is subject to any requirement imposed in the interest of the national security of the United States, especially when they have not fulfilled or have ceased to fulfill the requirements.
Businesses or enterprises extending preferential treatment to Indians
Businesses on or near an Indian reservation may give preferential treatment to an individual who is Indian and living on or near a reservation.
Prohibition of discriminatory use of test scores
It is unlawful employment practice for anyone who is about the selection of applicants for employment or promotion to adjust, use different cutoff scores, or alter the results of employment related tests based on race, color, religion, sex, or national origin.
Sexual harassment is often perpetuated between coworkers, but it also occurs between employees and individuals not directly employed by an organization, such as contractors, consultants, delivery persons, vendors, and even customers. Sexual harassment can occur anywhere that an employee represents their organization, including parties, dinner with clients, conferences, charity events, trade shows, and sales calls. Sexual harassment can be perpetrated through text messages, instant messages, emails, social networking sites, and on the phone.
The Equal Employment Opportunity Commission² has the responsibility for developing and implementing agreements, policies and practices designed to maximize effort, promote efficiency, and eliminate conflict, competition, duplication and inconsistency among the operations, functions and jurisdictions of the various departments, agencies and branches of the Federal Government responsible for the implementation and enforcement of equal employment opportunity legislation, orders, and policies.
There are many variations to steps for reporting sexual harassment in the workplace. This list comprises the steps most needed for adequate reporting. They include¹:
• Everything should be documented related to the inappropriate conduct prior to filing a workplace sexual harassment complaint. The documentation should include all offensive comments and bad conduct that can be remembered, the dates and times they took place, and the names of everyone who witnessed the harassment. Often, when a coworker has done something offensive like name calling or violating personal space too often, they may not recognize that they have crossed a boundary. An email can be sent to them asking them to respect boundaries and stop the offensive behavior. However, if the email has no effect, the email becomes evidence that the offensive behavior exists, and that there was an attempt to resolve it.
• Become familiar with the company’s policies on complaints. Most employers have policies and procedures to identify and report harassment, and these should be addressed in the employee handbook, and the employee handbook should have clear information about how to make a sexual harassment report. Employers must remain impartial; the person who will be investigating the complaint should be neutral and not have preconceived opinions about the victim or the accused harasser.
• Meet face-to-face with the person you will make the report to. Although this may feel awkward, an in-person meeting allows the employer to ask follow-up questions.
• Email a written complaint of the sexual harassment to the person whom you reported the problem. The email should specifically state and describe the workplace sexual harassment that is being experienced. There are multiple forms of discrimination, including age, disability, ethnicity, national origin race, and religious. Because there are so many variations of discrimination, the letter that is composed must specify the type of discrimination that is being experienced, namely sexual harassment. A victim of sexual harassment should keep a copy of the email and request a copy be kept in their personnel file. A paper trail builds evidence for the future.
• One should also let their employer know that they are prepared to provide details and cooperate with any investigation into the complaint.
• To limit the chances of retaliation, one should request that the employer keep the complaint confidential. It’s important to be aware, however, that this request may not be honored.
• Within a day or two of submitting the complaint, the employer should at least acknowledge that it was received and provide some basic information as to what will be done in response to the complaint. If no response is received or if there is concern that the employer isn’t taking the complaint seriously, the accuser should ask when a response can be expected.
• Workplace retaliation is illegal. If a victim of sexual harassment is retaliated against, such as being fired for reporting harassment, they should seek legal counsel.
Even though harassers are responsible for their actions, the employer is also responsible for dealing with the situation correctly. ² The employer is responsible if it knew or should have known about the sexual harassment. If the employer fails to deal with the complaint properly, the employer may be found liable. An employer can even be liable for sexual harassment by someone who is not an employee, or if an employee sexually harasses someone outside the workplace. For instance, if a contractor works for the employer to fix the photocopier and sexually harasses an employee, or, if an employee is travelling to a work-related conference and sexually harasses someone at the conference, the employer may be liable.
Under the Fair Employment and Housing Act employers are required to have a policy against sexual harassment. In workplaces with more than five employees, the policy must be in writing and clearly posted. The policy must clearly state that workers can report incidents of workplace harassment to a person other than the supervisor or employer. The employer should also consider the following²:
- Establish a written nondiscrimination policy which includes a specific policy against all forms of harassment. The policy should define sexual harassment, be published in the employee handbook, and be posted visibly throughout the workplace. An employer will have little chance of defending against a claim of a hostile environment or sexual harassment if no written policy exists.
- The policy should include various ways an employee can submit a complaint regarding sexual harassment. The complaint route should not be limited to the employee’s immediate supervisor because they may be the harasser.
- The employer should also consider installing an anonymous hotline or an interactive website for employees to report harassment or other workplace conditions.
- The employer should conduct regular training seminars on sexual harassment and require mandatory attendance. It should also keep careful records of who attended each training session and what material was presented.
- The employer should plan who will oversee investigation complaints of sexual harassment and how the investigation will be conducted. It should also consider hiring experienced employment counsel to conduct the investigation, or a company that specializes in such investigations.
- On receipt of a complaint of sexual harassment, the employer should review the employment practices liability insurance policy and notify the insurance carrier of the complaint. If the complaint involves sexual assaults or other criminal conduct, the employer should suggest that the person making the complaint make a police report.
- The employer should investigate all complaints of sexual harassment promptly, thoroughly, and objectively, and conduct an interview with the person making the complaint in the investigation. The employer should gather as much detail from the person making the complaint as possible about what happened, when and where it happened, and who else is aware of the harassment. The employer should also ask the person making the complaint how they would like the situation to be resolved.
- The employer should also treat all information collected during the investigation as confidential. However, the employer should not promise confidentiality because complete confidentiality is difficult to achieve.
- If the investigation finds that the complaint is justified, the employer must take immediate corrective action against the harasser. It must also inform the complaining party about the action taken.
- For serious, ongoing incidents, the employer should consider temporarily reassigning the alleged harasser or person making the complaint.
- If the investigation finds the complaint to be unfounded, the employer must inform the person making the complaint and the accused harasser and close the investigation.
- The employer must not take disciplinary action against the person making the complaint unless it can be proven that they intentionally lied about the situation. Retaliation against an employee for exercising rights protected by law, such as the right to complain about harassment constitutes illegal discrimination.
It is unlawful to harass a person because of that person’s sex. Harassment can include sexual harassment or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment. Harassment does not have to be of a sexual nature. It can include offensive remarks about a person’s sex; for instance, it is illegal to harass a woman by making offensive comments about women in general.
The victim of sexual harassment and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision, such as the victim of harassment being fired or demoted.
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 providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII of The Civil Rights of 1964.
- Bonar, B., & Esq. (n.d.). How to report workplace sexual harassment- Step by step. Law Firm Northern Kentucky – Bonar, Bucher & Rankin, PSC. https://www.lovethelaw.com/blog/how-to-report-workplace-sexual-harassment-step-by-step
- Employment. (n.d.). DFEH | Dept. Fair Employment & Housing. https://www.dfeh.ca.gov/Employment/#:~:text=The%20Fair%20Employment%20and%20Housing%20Act%20%28FEHA%29%20applies,they%20have%20asserted%20their%20rights%20under%20the%20law
- Facts about sexual harassment. (n.d.). U.S. Equal Employment Opportunity Commission. https://www.eeoc.gov/publications/facts-about-sexual-harassment
- Sexual harassment. (n.d.). U.S. Equal Employment Opportunity Commission. https://www.eeoc.gov/sexual-harassment
- Title VII of the civil rights act of 1964. (n.d.). U.S. Equal Employment Opportunity Commission. https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964