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Sexual Harassment in the Workplace
Equal Employment Opportunity Commission (EEOC) was established in 1975 and since this time sexual harassment has been one of its major issues that arise in the workplace on a day to day basis. Sexual harassment can be defined as “unwanted sexual attention that would be offensive to a reasonable person and that negatively affects the work or school environment” (Brandenburg 1997, p.1). The key word in this definition is “unwanted.” The EEOC has used its influence under the Sex Discrimination Act to support claims of sexual harassment at employment tribunals. It has also initiated investigation on organizations that had an excessive number of sexual harassment complaints. The guidelines by the EEOC about sexual harassment are defined as unwelcome advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature in the working environment. (Bohlander & Snell pg112)
There are two types of sexual harassment quid pro quo harassment and hostile environment, in which the EEOC recognizes that, will elaborate on. We will also investigate the liability that is held by employers if sexual harassment is not recognized and how employers can prevent from being liable. We will also discuss how failure to adopt a pro-active and aggressive stance on this issue can result in costly lawsuits, and also be a loss of employee morale, decline in productivity, and an erosion of a company's public image.
Review of Literature
“A Legal and Psychological Framework” focuses on variety of points concerning sexual harassment. First of all, in the order for companies to act wisely they need to understand the whole issue of sexual harassment. They should consider the disturbing statistics behind an often hidden problem, the legal grounds available to victims, the current trends in the law, and the ways that companies can protect themselves. The Civil Rights Act of 1964 is an act that should be studied and acknowledged by all companies. It has made it “illegal to discriminate on the basis of race, color, religion, age, national origin and sex”. (Bladley & Fishkin, 1998, p. 207). This gave birth to Title VII of the Act, which states that when a complaint is made, employers are obligated to investigate and take necessary corrective measures.
In 1986, the Supreme Court held that employers can reduce the danger of being held liable for sexual harassment by establishing procedures "calculated to encourage victims of harassment to come forward." Since then, almost 75 percent of companies with more than one hundred employees have adopted anti-sexual harassment policies. Most of those policies look very much like the "Sample Antiharassment Policy" reproduced in Barbara Lindemann and David Kadue's Sexual Harassment in Employment Law, which first appeared in 1992. (Rosen, 1998, p. 25-35)
"If you are in management, now is the time to refine your sexual harassment policy so that it is in the spirit of your organization's values rather than written to the letter of the law," writes Rita Risser in a report in 1996 by Fair Measures Management Law Consulting Group. "Your policy should go beyond [what the law forbids]. If you set your standards too low, one mistake by one supervisor could make you the next landmark case. Also, the EEOC accepts claims for conduct that clearly is not illegal. Since it's costly to respond to such claims, it's in an organization's best interest to minimize them."
(Rosen, 1998, p. 25-35)
Sexual harassment is embodied in two different forms and companies should be aware of them. The first type is Quid pro quo is a Latin term, which means this for that. It occurs when an individual's submission to or rejection of sexual advances or conduct of a sexual nature is used as the basis for employment decisions affecting the individual or the individual's submission to such conduct is made a term or condition of employment. It is sufficient to show a threat of economic loss to prove quid pro quo sexual harassment. A single sexual advance may constitute harassment if it is linked to the granting or denial of employment benefits. Courts have held employers strictly liable for quid pro quo sexual harassment initiated by supervisory employees. A subordinate who submits and then changes his or her mind can still bring quid pro quo harassment charges against the alleged perpetrator. For example, a supervisor promotes a female employee only after she agrees to an after-work-date, the conduct is clearly illegal (Bohlander & Snell, 2007, p 112).
Hostile Environment is the second form of sexual harassment. This occurs when unwelcome sexual conduct unreasonably interferes with an individual's job performance or creates a hostile, intimidating or offensive work environment even though the harassment may not result in tangible or economic job consequences, that is, the person may not lose pay or a get a promotion. Employers, supervisors, coworkers, customers, or clients can create a hostile work environment. A hostile work environment might include, repeated requests for sexual favors, demeaning sexual inquiries and vulgarities, offensive language, other verbal or physical conduct of sexual or degrading nature, sexually offensive, explicit or sexist signs, cartoons, calendars, literature or photographs displayed in plain view, and offensive and vulgar graffiti.
SEXUAL HARASSMENT INTERVENTIONS
Sexual harassment has an effect on people of all races, ages, and regardless of sex. Title VII of the Civil Rights Act of 1964 prohibits sexual harassment and still today many organizations have failed to successfully implement adequate policies and procedures to address sexual harassment issues. According to the U. S. Equal Employment Commission, their agency received an increased number of filed grievances from 10,532 in 1993 to over 15,000 in 1998 (Ganzel 1998). U. S. Supreme Court rulings on cases such as Faragher vs. City of Boca Raton and Burlington Industries vs. Ellerth attempts to decrease the number of sexual harassment grievances filed with the EEOC and the court rulings are requiring employees to work in conjunction with their employer to resolve sexual harassment issues with the EEOC. This requirement places the responsibility on the employer to employ guidelines for preventing sexual harassment and it also places responsibility on the employee to follow the guidelines set forth by the employer. In turn, the rulings are serving as a motivator to employers so that their action will be in compliance with federal laws.
It is important for companies to maintain effective compliance with the rulings of the Supreme Court. It is a requirement of all federally-funded organizations, as well as, schools to establish sexual harassment policies in writing, distributing the policies to employees, and to enforce the policies (Barrier 1998). Effective organizational policies on sexual harassment mush clearly identify (Ganzel 1998):
1)The behaviors constituting the harassment along with the company's intolerance of these behaviors
2)Channels employees must follow to report sexual harassment complaints to their supervisors or designated company representative
3)Strategies the company will follow in investigating and resolving a complaint to include confidentiality practices
4)Warnings that violation of the policy will result in punishments that could include dismissal
- Assurance that retaliation will not be allowed
Good sexual harassment policies echo partnership among company executives, supervisors and employees, and among administrators, teachers and students. Sexual harassment is a demonstration of deeply held beliefs, attitudes, feelings, and cultural norms (Brandenburg 1997). It shows the abuse of power, a gender-power discrepancy, and sometimes power-related vengeance.
Marjorie Fink, a national sexual harassment prevention trainer, attributes climate as a major element to guide prevention efforts (“Trainer: Stop Bullying” 1999). The climate in business and schools is unique. In some organizational climates, verbal teasing, dirty jokes, and sexual pictures may be the central behavior that mirrors sexual harassment; in other instances, improper touching, stalking, or shoving may be the behavior that reflects sexual harassment. As all members of a work organization or school become involved in establishing policy, these related issues can be more effectively addressed and behaviors pursued.
Companies and schools are finding internal grievances to be an effective tool to handle sexual harassment claims. Internal grievance procedures may save time, minimize emotional and financial expense, and be more sensitive to all involved parties (Brandenburg 1997, p. 53). In order to be effective, grievance procedures must include clearly defined informal and formal steps for employees to follow when submitting claims. Informal claims should specify how the harassed party should proceed with seeking advice or counsel about a proper response to the offending behavior. Also, informal claims should explain the process of mediation, negotiation, and problem solving that may be used to resolve the issue. In formal claim procedures, grievances are required to be submitted via writing and must present all related facts to the incident - who, what, where, when, the scope of the incident, and the names of the individuals involved in the claim. Employees should submit sexual harassment claims immediately after the incident. It is also important for organizations and schools to specify the procedures that are required of employees or students to follow.
Grievance procedures should also identify the party or parties to whom grievances must be submitted. According to the grievance officer model, all complaints are processed through a designated supervisor or officer; in the grievance board or committee model, grievances are submitted to a group (Brandenburg 1997). An advantage of the grievance officer model is that it includes one entry point for complaint submission. An advantage of this model is that is may require the harassed employee to deal with someone with whom he or she may feel uncomfortable with discussion the issue. The grievance board or committee model places the problem in the hands of many and has the disadvantage of requiring greater communication and coordination between committee members and the harassed employee which in turn makes the issue more difficult to remain confidential.
SEXUAL HARASSMENT PREVENTION TRAINING
All employees (supervisors down to line workers, administrators to custodial staff) must have clear and acquired knowledge of the company's policy and grievance procedures. In order to prevent or decrease sexual harassment allegations, it is imperative for organizations and schools to provide access to training for all employees and document their sexual harassment training participation and completion of the training program. It is important that the employees are made aware that although Supreme Court's rulings held companies liable for harassment by supervisors even when management was unaware of the incidents in which a harassed employee did not follow the company's reporting procedures or did not participate in company-sponsored sexual harassment prevention training (“Protecting Employees” 1988).
Effective training should include training on Title VII of the Civil Rights Act of 1964 which prohibits sexual harassment, identify the required actions that may be categorized as sexual harassment, and describe the company's policy and its grievance procedures. Therefore, training provided should serve as a tool to enhance awareness of sexual harassment and present strategies for intervention. Effective training programs provide:
1)Good teaching and learning practices if training is descriptive, intensive, relevant, and positive
2)Involvement of all members of a company or school
3)Interactive problem-based learning experiences
4)Present information from a positive viewpoint, encourage healthy behavior rather than forbidding poor behavior
5)Teach intervention skills (Berkowitz, 1998)
- Help learners to recognize sexual harassment by providing them with appropriate and relevant definitions and examples of sexual harassment
- Help learners to interpret which behaviors indicate harassment
- Encourage participants to share their experiences and their tolerance for certain behaviors as a means of demonstrate their common ground
- Encourage participants to feel responsible for dealing with the problem
- Teach intervention skills and provide opportunities to practice them. Use role play scenarios to assist participants find comfortable and appropriate ways to express their discomfort with another's behavior
- Assist participants to be free of retaliation. Explore participants' fears about retaliation and provide examples of how interventions will be supported.
Department of Defense 1995 Sexual Harassment Study
In 1994, the DoD implemented 3 types of surveys regarding sexual harassment. The first survey (Form A) was a replica of a 1988 DoD. Disadvantages of the1988 survey was it did not provide opportunities for those responding to the survey to report certain types of behavior related to sexual harassment, the survey limited reporting of sexual harassment claims to occurrences at work, and it did not include items that measured various areas of importance such as how much training was being provided; how effective was the training; what were the opinions of the responders regarding the complaint process. Therefore, two surveys were compiled in which Form A provided comparative data and Form B permitted collection of important information that broadened the DoD's knowledge of sexual harassment in the active-duty member services in 1995.
The main purpose of conducting the Form A survey was to compare sexual harassment incident rates between 1988 and 1995. Form B (the second survey), provided an expanded list of potential harassment behaviors of those survey participants, provided respondents to report sexual harassment experiences that took place outside normal duty hours and on/off a military installation, and the measures of service members' perceptions of the complaint process and training. For research purposes, the third survey (Form C) was conducted with a small sample of active-duty members. The results from this survey were not calculated. Over 90,000 active-duty military personnel received one of the three surveys between February 15, 1995 and September 18, 1995. Approximately 30,000 members received Form A, 13,600 actually completed the survey resulting in a response rate of 46 percent. Form B was mailed to about 50,000 members with a completion number of 28,300 resulting in a 58 percent response rate. Form C was mailed to approximately 9,500 members and 5,300 surveys were completed with a 56 percent response rate.
Major Finding 1: How much sexual harassment is occurring? How do 1995 results compare to those obtained in 1988? (Form A)
Major Finding 2: Form B consisted of 25 items. Once the data was collected, it was analyzed and reported into five broad categories. This survey doubled the possible categories of reporting and broadened the circumstances under which harassment could be reported (off-duty hours, off-based). This survey concluded that 78 percent of women and 38 percent of men indicated that they had experienced one or more of the behaviors listed in the survey within the previous 12 months.
Major Finding 3: Did service members consider the experiences they reported to be sexual harassment?
Many of the service members did not consider the experiences they reported to be sexual harassment. Although 78 percent of the women and 38 percent of men checked one or more items, only 52 percent of women and 9 percent of men indicated that they considered experiences they checked on the survey to be sexual harassment.
Major Finding 4: Comparison of surveys and results
Based on the information collected from the three surveys, evidence shows that sexual harassment within active-duty military services has declined. Between 1988 and 1995, the percentage of women reporting incidents declined 9 percent while the percentage of men declined 3 percent.
In our method we decided to have several different people complete an anonymous questionnaire that held a position at United Parcel Service. The questionnaires were handed during the employees lunch break and returned to us at the end of the work day. A large amount of sexual harassment is not reported due to embarrassment or being fearful of termination.
Date of Birth
Have you ever sued anyone before for any reason?
If Yes, Who have you sued?
If Yes, Why were you suing them?
What is your job title?
When did you start working for your employer?
Are you still employed there? Yes No
If not, were you fired? Yes No
If you were fired, when were you fired?
What has happened that makes you believe you have experienced
What has been said to you?
What is the job title of the person in relation to you that has
said or done these things?
Have you been touched physically in any part of your body, either
with or without your consent?
If you consented to being touched, or involved sexually, did you
feel this was important to your job to do so?
Have you reported this behavior to anyone at all?
If so, to whom?
Have you reported this behavior to anyone in management?
If so, to whom?
Was the report verbally or in writing?
What was management's response?
When did the acts that you believe were harassment take place?
Have you had any emotional or psychological consequences from the
sexual harassment in the workplace?
Have you shared these experiences with a support group, a doctor,
a minister, a spouse, or any other person?
If so, with whom did you share?
Have you had any physical illness or results from the sexual harassment?
For example, breaking out in hives; insomnia
(inability to sleep); nausea or vomiting; pregnancy resulting; headaches
(migraine), anxiety attacks, shingles.
If Yes, Why were you suing them?
Equal Employment Opportunity Data Posted Pursuant to the No Fear Act
Equal Employment Opportunity Data Posted Pursuant to Title III of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act), Pub. L. 107-174
*Unable to reconstruct data from FY 2002 through FY 2003
We have determined that sexual Harassment is definitely not about sex, instead it is about power. This type of harassment is disrespectful and has no justification for the actions that are presented. Companies need to understand the sexual harassment and its severity that can be caused. All companies should have guidelines into place in order to protect themselves. One of the best tools is training on this behavior in order to prevent the action before it takes place. Companies can begin by describing the forms of sexual harassment, which are quid pro quo and hostile environment. Quid pro quo harassment occurs when “submission to or rejection of sexual conduct is used as a basis for employment decisions and hostile environment can occur when unwelcome sexual conduct “has the purpose or effect of reasonably interfering with job performance or creating an intimidating, hostile, or offensive working environment.” Although, these two forms have different definitions their base point still remains the same “unwanted behavior.” Intervention is one of the major sources that companies can use in order to save themselves time as well as money on lawsuits. In addition, it can save the employee of any embarrassment they may feel. Sexual harassment continues to go till this day, but we must intervene the first time that it occurs. Allowing this type of behavior to continue is the mistake that is made so often.
Berkowitz, A. D. "How We Can Prevent Sexual Harassment and Sexual Assault." Educator's Guide to Controlling Sexual Harassment 6, no. 1 (October 1998).
Bohlander & Snell. Sexual Harassment." Nation's Business 86, no. 12 (December 1998):
Bradley, David & Fishkin, Shelley Fisher. (1998). The Encyclopedia of Civil Rights In America. New York: M.E. Sharpe, Inc., p. 207.
Brandenburg, J. B. Confronting Sexual Harassment. New York: Teacher's College, Columbia University, 1997.
Ganzel, R. "What Sexual-Harassment Training Really Prevents." Training 35, no. 10 (October 1998).
“Protecting Employees-and Your Business." Nation's Business 86, no. 12 (December 1998).
Roberts, Barry S. & Mann, Richard A. (2000, June 19). Sexual Harassment In The Workplace: A Primer. Retrieved July 2, 2005 from the World Wide Web: http://www.uakron.edu/lawrev/robert1.html
"Trainer: Stop Bullying and Teasing in K-6 to Prevent Sexual Harassment Now, Later." Educator's Guide to Controlling Sexual Harassment: Monthly Bulletin 6, no. 4 (January 1999):