Legal Pad: Sexual Harassment in the Workplace
If you want to bring up a tricky subject that is bound to offend someone and trigger an argument—and you don’t want to talk about politics or religion—I would suggest “sexual harassment.” It isn’t that most reasonable and enlightened people don’t agree that sexual harassment is a bad thing that shouldn’t be tolerated under any circumstances; it’s that we’re still not all on the same page about what constitutes “harassment,” much less how to banish it.
The governmental organization that sets the rules about sexual harassment in the workplace is the Federal Equal Employment Opportunity Commission (EEOC), which categorizes sexual harassment under the heading of sex discrimination, considered a violation of Title VII of the Civil Rights Act of 1964. For our purposes, this column will provide an overview of workplace sexual harassment as it is legally defined and described.
The Long Arm of the Law
The official EEOC statement reads as follows: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature constitute sexual harassment 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. Notably, a person may harass someone else by making
disparaging or offensive comments about that person’s sex in general, even without mentioning them or directing it to them specifically. Remember that women and men are equally subject to, and can be held responsible for, such harassment.
The EEOC tells us what sexual harassment is and what it isn’t: “Simple teasing, offhand comments or isolated incidents that are not very serious” do not qualify as sexual harassment according to the EEOC. Assessing this requires an exercise in judgment. In the workplace, when certain behaviors become so pervasive, frequent and severe that it creates what the law would consider a hostile work environment, then the behavior is illegal and action must be taken.
Workplace pecking order has no bearing on whether someone can be considered a harasser or victim, although obviously it is much more intimidating for a harassed person to take action when the individual committing the violation is their superior. Moreover, businesses can end up in hot water with the EEOC whether the accused harasser is a worker, owner, client, vendor or the person who services the water dispenser. And the object of the harassment doesn’t even need to be an employee: Job applicants can also be harassed.
The Safety Zone
Although questions like “Am I not allowed to compliment people anymore?” may make many women want to put their fist through a wall (or a man), activists point that the conversations that arise from such questions are important and necessary. The fact is that overcoming the scourge of sexual harassment is going to require exceptional amounts of patience, communication and cooperation on all sides. There are nuances involved, and perhaps a lot more unintentional line-crossing than we all realize. Consider the following scenario:
The setting is the break room of a large spa. Alicia, a massage therapist, is at the vending machine getting a snack when Allan, a spa administrator, enters. He immediately notices that Alicia is wearing new yoga pants, and that they’re flattering to her figure. “Alicia looks hot in those pants,” he thinks, and immediately blurts out, “Nice yoga pants, are they new?”
Alicia finishes getting her snack, turns around to see Allan staring at her pants/legs, takes a deep breath, says “Yes, thanks,” and quickly leaves the breakroom. She walks directly into the spa director’s office to share what just happened and discuss what a “creeper” Allan is.
The director had heard about similar exchanges between Allan and other female colleagues; she decides to bring up the matter with HR, and Allan ends up receiving a serious reprimand and a black mark on his record. “All I did was compliment her pants!” he objects. “And anyway, if she was offended, why didn’t she just tell me?” The HR person replies, “Maybe she was uncomfortable. You do have seniority. Besides, was it really her pants you were complimenting?”
Now, Allan is a decent person but he has spent most of his life surrounded by other guys who would never think twice about complimenting a women’s “pants.” He has never been challenged this way before and this last comment has given him pause. It was true: H wasn’t really commenting on Alicia’s pants. And Alicia knew it.
Still, do such compliments constitute harassment? “I honestly don’t understand,” admits Allan. “I didn’t threaten Alicia or touch her or even insult her! It just seems like giving someone a compliment should be within my rights as a person.”
What about Alicia’s right to get a snack from the vending machine at work without being openly appraised an made to feel the object of someone’s sexual desire?” replies the HR rep. “Which right do you think should outweigh the other?”
For some people, finding and staying within areas of interaction that are both natural and respectful is going to be a daily challenge. And although they may bruise a few egos, conversations like the one above are crucial if we’re going to truly progress and learn how to treat each other like equals.
How to Stay Untouched
It is critical for every employer to have a written sexual harassment policy. This document should provide action guidelines for employees who experience the effects of harassment. If the alleged harasser is a supervisor, there must be a way for employees to go above that person’s head to report the grievance, with assurances that there will be no negative ramifications for disclosing the alleged harassment.
Establish a zero tolerance policy toward sexual harassment, but enforce it with care. If “zero” to you means that anyone accused of harassment is immediately fired, you are leaving yourself open to serious liability. The employer’s immediate action should be to separate the parties
so as to protect both (sometimes a tall order, especially in small spas). Then, the employer has a duty to investigate and gather evidence; if it’s forthcoming and serious, termination of the harasser is warranted. Perhaps the best definition of zero tolerance is: If it’s proven, you’re gone.
If the situation is he said/she said issue and there is no definitive evidence, the employer might need to continue the separation of the alleged victim and alleged harasser, but keep a close watch and stay accessible for further dialogue. A that point it’s a good idea to subtly let your entire staff know that you run an EEOC-compliant business, and what that means for them.
When it comes to sexual harassment, the best prevention for employers is responsible hiring, keen attention and employee education. There is no substitute for a responsible hiring, keen attention and employee education. There is no substitute for a professional conducted harassment seminar. The instructors use real-life examples from cases that have been decided by the courts or the EEOC, and this gives employees and supervisors a reference point from which to recognize workplace sexual harassment when it occurs.
For more detail on the parameters of the law and employer responsibility regarding sexual harassment, visit eeoc.gov/laws/types/sexual_harassment.cfm.
–by Michael L. Antoline, JD