SEXUAL HARASSMENT1
Sexual Harassment:
What is it? How do you report it? What are the lasting effects caused from it?
Stevie Warner
The University of Central Oklahoma
Sexual harassment is an ongoing dilemma that is present in the workforce. No occupation or profession is immune to sexual harassment. It transcends occupational and professional categories, age groups, educational backgrounds, racial and ethnic groups, and incomes levels (Kim & Kleiner, 1999). It affects us all. Most companies now require that their employees partake in a training course based on sexual harassment yearly. Most employees can state the obvious situations that would be considered a violation of a company’s policy in the dealings with this particular topic, but they would be stunned to find out all that can be classified as sexual harassment.
Sexual harassment, as defined in legal terms, is unwelcomed verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment (Equal, 2013). There are some important words present within this definition. One of these words is unwelcomed. It must be known to the actor that the actions are not wanted by the other party. The severity and pervasiveness also need to be taken consideration. A single minor incident may not account for sexual harassment. However, if the single incident is as extreme as rape or attempted rape, then yes it is considered harassment. When gaging the pervasiveness one should take into consideration the amount of times the incident(s) has occurred and for how long has the harassment been taking place. One can also note how many other people have been sexually harassed.
It is also extremely important for an employee to know what is considered sexual harassment. Many people probably overlook some incidents because they are unaware that they are classified as sexual harassment. Sexual harassment can be categorized into verbal or written, physical, nonverbal, and visual harassment. Susan Heathfield (2013) gives the following examples of those categories of harassment. Verbal or written harassment can include but is not limited to: comments about clothing, personal behavior, or a person’s body; sexual-based jokes; requesting sexual favors or repeated asking of a person out on a date; sexual innuendoes; telling rumors about a person’s personal or sexual life; playing sexually suggestive music; and threatening a person. There is also physical harassment. Examples of this type are: assault; impeding or blocking movement; inappropriate touching of a person or a person’s clothing; kissing; hugging; patting; and stroking. Nonverbal incidents can include: looking up and down a person’s body; derogatory gestures or facial expressions of a sexual nature; or stalking. Visual harassment examples are: posters, drawings, pictures, screensavers, offensive words of clothing, or emails containing images of a sexual nature.
Another form of sexual harassment is that of non-sexual. This is the case when a person is being harassed based on their gender (Equal, 2013). An example of this would be if a male or female is in a position that is stereotypically of the other gender and from this they are teased or picked on. Also, included in this area is harassment based on a person’s sexual preference.
When thinking about sexual harassment most people automatically think of males violating females. The victim as well as the harasser can be male or female. The victim doesn’t have to be of the opposite sex. Also, most think that is always a direct supervisor but it can be an agent of the employer, supervisor in another department, co-worker, or even a non-employee (EEOC, 2009). Someone that is not directly being harassed can still be a victim of the harassment. Anyone that has been offended by the action(s) can be a victim, such as a co-worker that was present when the harasser gestured a sexual based facial expression in the direction of another employee. Economic injury or discharge of the victim doesn’t have to exist for there to be unlawful sexual harassment.
A telephone poll that was conducted by Louis Harris and Associates on 782 U.S. workers revealed that nearly 1/3rd of the female workers reported that they had been harassed in the workplace. Of the men 7 percent reported harassment at work. 62 percent of the tolled workers stated that they did not report or take action on the incident. All the women stated that the harasser was a male. The men reported that 59 percent of their harassment was done by females leaving the other 41 percent to have been done by another male. (Otten & Golden, LLP, 2012) Of the women polled, 43 percent reported that the harasser a supervisor. A little more than a 1/4th of the women were harassed by an employee that had seniority to them. Nearly 1/5th of the harassers were co-worker at the same position as the victim. Junior employee harassers accounted for 8 percent. (Otten & Golden, LLP, 2012) This poll gives evidence and proves that the assumptions and stereotypes that are made in reference to sexual harassment in the workforce are incorrect. Anyone can be a victim and anyone can be the harasser.
There are many laws in place to protect employees against sexual harassment. The federal law on this subject is that of Title VII of the 1964 Civil Rights Act. This law is in effect to make sure that employers are held responsible for preventing and managing any and all sexual harassment that occurs with their given workplace. As stated in the U.S. Equal Employment Opportunity Commission fact sheet (2009), Title VII applies to employers with 15 or more employees, including state and local governments and also to employment agencies and to labor organizations, as well as to the federal government. It is also applicable in private organizations, including non-profit agencies. In summary, this law is in place to protect all workers that are employed by any organization that employs 15 or more workers against sexual harassment.
There are also laws in place at the state level. The state of California has the California Fair Employment and Housing Act (FEHA). This law prohibits sexual harassment in employment. FEHA applies to private public employers, employment agencies, labor organizations, state licensing boards, and state and local governments that have 1 or more employees. Unlike Title VII, FEHA provides protection against sexual harassment for persons who provide services pursuant to a contract.(Equal, 2013) For instance if the lawn maintenance at the California State Capitol is done by a contracted laborer and they harass or are being harassed by an employee of the Capitol then the Capitol is held responsible for acting on the incident.
The Oklahoma Anti-Discrimination Act is in place in the state of Oklahoma. This Act prohibits all public employers of 15 or more persons from discriminating in employment because of sex. Also in effect as of November 1, 2011, the Act covers all private employers, regardless of size. Contractors and/or subcontractors that provide goods or services to the state are also considered employers under the Act. The Oklahoma Human Rights Commission expressly provides that sexual harassment is a violation of the state’s Anti-Discrimination Act. (BLR, 2013) This law is in place for the protection of employees that may be discriminated against based on their gender which is a form of sexual harassment. An example of this Act in place is that a male cannot be discriminated against while applying for a job in a predominantly female based occupation such as administration.
In addition to federal and state laws, there is what is referred to as Tort Laws. These are more for the civil aspects in cases of lawsuits (Maypole & Skaine, 1983). If the harassed decides to seek out civil reprimands in civil court against their harasser they can by using these laws. To be able to use tort laws one would typically argue that assault and battery took place. The assault and battery is factored by the fear, imminent physical injury, or unpermitted contact that took place during the harassment. One can also argue that there was intentional infliction of emotional distress. Some of the advantages of Tort is that it does not limit the compensatory damages to the loss of income, medical expense, mental or emotional distress but also punitive damages and the fact that the time limit to make the claim is increased from six (6) months that Title VII allows to two (2) years.
There are some well-known cases of sexual harassment. These cases have become the trendsetter for cases that followed. These cases vary from the White House to college athletics to banks to fast food restaurant chains. Sexual Harassment can happen anywhere and to anyone. Big and small organizations alike are at risk of having sexual harassment incidents occur. The victim is not always one that would be thought to be victimized.
The first sexual harassment decision was made in 1976. This was the case of Anita Hill vs. Clarence Thomas. Ms. Hill, a former colleague of Thomas and a law professor, accused Thomas of using inappropriate language and sexually harassing female colleagues when they had worked together (Kaminsky, June 2006). The allegations were never part of an actual lawsuit. Hill’s claims were never proven or disproven, however Tomas denied all claims that were brought forth. Thomas ran for senate and with a 52-48 vote he was approved. In 1991 confirmation hearings of Justice Clarence Thomas took place and the concept entered national consciousness. After the hearings the number of sexual harassment cases filed increased by 50%.
The first case to ever reach the United States Supreme Court was the case of Meritor Savings Bank vs. Michelle Vinson in June of 1986 (Tang & McCollum, 1996). Vinson alleged that her supervisor Sidney Taylor had improperly touched her, exposed himself to her, and had sex with her during her employment. While the trial was in process at the District Court it was testified that there was a voluntary sexual relationship between Taylor and Vinson. Due to this information the court found that it did not fall under sexual harassment. The court also went on to state that since the bank was not notified of the harassment it was not to be held liable for the Mr. Taylor’s alleged sexual harassment.
The Court of Appeals reversed and remanded with the notion that a violation of Title VII may be predicated on either of two types of sexual harassment – (1) harassment that involves the conditioning of employment benefits on sexual favors, and (2) harassment that, while not affecting economic benefits, creates a hostile or offensive working environment (Cordell, 2009). The Court of Appeals maintained that Ms. Vinson’s grievance was based on the latter of the two.
With the conflicting verdicts from the lower level court decisions the case was sought to be seen by the United States Supreme Court and the court agreed to hear the case. The Supreme Court considered three questions of the most importance: Is a hostile working environment created by unwelcomed sexual behavior a form of employment discrimination prohibited under the Title VII when no economic loss or quid pro quo harassment exists; does a Title VII violation exist when the relationship is “voluntary”; and, is a business liable for a hostile working environment if it is not aware of the misconduct? (Cordell, 2009) When answering these questions the court turned to the United States Equal Employment Opportunity Commission. Per the outcome of the answers found, The United States Supreme Court ruled in favor of Ms. Michelle Vinson. This case shows that even with a voluntary sexual relationship, sexual harassment can become present in the workplace if it begins to create a hostile work environment.
Another well-known case is Paula Jones vs. President Bill Clinton. Jones alleged that Clinton, while the Governor of Arkansas, had exposed himself to her and ask for oral sex in a hotel room (Kaminsky, June 2006). At the time (1991) Jones was a state employee. Clinton denied the allegations. Jones filed multiplerounds; eventually her lawsuit was dismissed on the bases of failure to state a claim. Jones appealed the dismissal and a settlement was reached. The lawsuit was dropped in exchange for $850,000. Even though a settlement was reached, Clinton has never admitted to the accusations. This case would lead into the investigation of President Clinton’s sex life. The Monica Lewinsky scandal and the impeachment were huge situations following the Paula Jones case. What this case shows is that even if the report is not found in court to be substantive, it still may leave an impression and open the door for more incidents in the dealing with the same person to report their cases or be brought back up as evidence of a repeated offender.
The cases against the University of Colorado Football Program are notable ones. In 2001, two women, Lisa Simpson and Anne Gilmore, made a claim of sexual harassment. They stated that they were sexually assaulted by Colorado football players and recruits at an off-campus party (Kaminsky, June 2006). The claimants alleged that the university was liable due to the cultivation if an atmosphere that led to the alleged assaults. They claimed that the school tries to draw in the best high school football prospects with sex and alcohol parties.
Simpson and Gilmore filed suit under Title IX of the Civil Rights Act. Title IX promotes gender equality in education. This title is different from the sexual harassment claims previously mentioned. Violations of Title IX require showing that the school had actual notice of sexual harassment and then acted with deliberate indifference (Kaminsky, June 2006). The university decided to settle with the women, Lisa Simpson was set to receive $2.5 million and Anne Gilmore $350,000 (Sander, 2007).
Following the claims, the University of Colorado Board Of Regents made an independent investigation. The results for this investigation found that drugs, alcohol and sex have been used to bring in recruits but not with the sanctioning of university officials (Sander, 2007). Several university officials lost their jobs. The school now exhibits some of the strictest recruitment policies in the country. This case caused many schools to run their own investigations into their recruitments and make sure that all students are protected at all events from such harassment and negative behavior.
According to a survey that was committed, 42 percent of the women and 15 percent of the men claimed that they had been sexually harassed on the job. Sexual harassment is now one of the most fervently pursued civil rights issues (Tang & McCollum, 1996). Human resource managers in all aspects of the employment realm should be on high alert for these issues.
Most companies have a policies and procedures that complainants must follow when it comes to sexual harassment. Employees should make sure to read the employee handbook to fully understand their employer’s processes. It is also wise to educate one’s self on ways to prevent and deal with unwanted advances for colleagues. There are many resources available online and in print from organizations such as the Equal Employment Opportunity Commission and the Equal Rights Advocates.
According to Equal Rights Advocates (2013) one should follow a series of steps when encountering sexual harassment at work. Step one is to say “No” Clearly. It is important to give a stern warning and make it clear to the offender that the advances are not wanted and the advances are found to be offensive. If the harassment doesn’t end quickly, one should write a letter to the harasser requesting that they stop and keep a copy for their own records.
The next step is to write down exactly what happened. These details should include dates, times, places, and any witnesses that may have observed the offense. If it is possible, have the witnessalso make a log of what they saw or heard, especially if the same issues are happening to them. One should not keep this log at work, but instead in a safe place at home or elsewhere.
Now it is time to report the harassment. At this time it is important that one knows their company’s protocol for making a claim. Normally, one would inform their supervisor, human resources department or some other department or person within the company who has the power to stop the harassment. If it is possible, the report should be done writing and the claimant should keep a copy for their records.
One should be sure to keep a paper trail. As previously stated, one should make sure they keep copies of all correspondence in dealings with the harassment. This allows one to show proof of the report and any actions that followed. This will be important if the situation has to go further than just the employer to get resolved. Also, one should request a copy of their personnel file.
The next step, if the problem has not been dealt with or still persists, is to involve the victim’s union if they belong to one. One should file a formal complaint through the union and try to get a shop steward or other union official to help with working through the grievance process. One should get a copy of their union’s grievance policy and see if it discusses the problems that they are experiencing. One must still file a complaint with a government agency if a lawsuit with either the state or federal courts will be pursued.