Sexual Harassment and the. Dr. Rafael Cartagena.
Dr. Rafael Cartagena
Legally, sexual harassment has been defined as unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature when submission to, or rejection of, such conduct explicitly or implicitly affects and individual’s employment; unreasonably interferes with the individual’s work performance; or creates an intimidating, hostile or offensive work environment.
Two types of sexual harassment are described by the courts, and may occur alone, but often co-exist. These are:
a hostile, offensive work environment due to unwelcome sexual conduct;
Quid Pro Quo (literally, this for that)
Sexual favors demanded as a condition of employment or promotion (no sex, no job).
Title VII of the Civil Rights Act of 1964 declared unlawful any discrimination against a person in the workplace because of race, color, sex, religion or national origin. In 1980, EEOC guidelines declared sexual harassment to be a form of sex discrimination, and therefore a violation of Title VII.
In Meritor Savings Bank v. Vinson (1986) the U.S. Supreme Court affirmed the basic premise of the guidelines: that sexual harassment is a form of sex discrimination and that the employer is liable for a supervisor’s actions if the supervisor acted as the employer’s agent.
The Robinson v. Jacksonville Shipyards (1991) case in Florida severely criticized an employer for inadequate and unsympathetic responses to complaints of sexual harassment.
The Civil Rights Act of 1991 amended the Civil Rights of 1964 in order to restore and strengthen civil rights laws that ban discrimination in employment. This Act affirmed the rights of women, people with disabilities, and religious minorities – including the victims of harassment – to collect monetary damages where there has been proven employment discrimination.
Ellison v. Brady (9th Circuit, 1991) recognized that the offensive behavior must be judged from the victim’s perspective, and that the harasser’s intentions will not change the outcome. In this case, the court chose to view the objective offensiveness of the behavior from the viewpoint of a reasonable woman rather than that of a reasonable person, noting behavior that men might consider unobjectionable could still be offensive to many women.
In Harris v. Forklift Systems (1993) the U.S. Supreme Court held that the victim of sexual harassment does not need to demonstrate tangible psychological injury.
The U.S. Supreme Court held in Oncale v. Sundowner Offshore Services, Inc. (1998) that gender and sexual orientation were not factors that would limit protection under sexual harassment laws.
Behavior that may at first be a minor annoyance becomes sexual harassment when it is unwelcome and persistent, when it begins to affect job performance, and when it creates a hostile, intimidating environment. The offensive behavior may be verbal, nonverbal or physical. Some examples:
Sexual harassment can be prevented. It takes a strong commitment on the part of employers, management and all employees to provide a healthy, comfortable work environment. Here’s how it can be done:
Adopt a strong company policy (1) defining sexual harassment as unwanted behavior that is offensive and that creates a hostile, intimidating work environment; and (2) stating such behavior is illegal and will not be tolerated.
Make the policy known to all personnel through employee handbooks, bulletin boards, memos, meetings, training videos, posters, etc.
Establish effective complaint procedures, including alternative reporting avenues in addition to an employee’s immediate supervisor.
Train all supervisors to recognize sexual harassment and to take prompt action in response to a complaint.
How effectively do you and your company handle complaints and investigations of sexual harassment? The following questions can help you examine and assess the adequacy of your procedures.
Is the complaint procedure prompt, convenient and non-threatening for the complainant, and are there options for reporting complaints?
Are there guidelines for interviewing complainant and alleged harasser and for documenting these meetings?