PREVENTING SEXUAL HARASSMENT

1 PREVENTING . SEXUAL HARASSMENT . AND OTHER WORKPLACE HARASSMENT . A FACT SHEET FOR EMPLOYEES. Inside This Fact Sheet You'll Find: Definitions of SEXUAL and Other Workplace HARASSMENT what harassing behavior is when a workplace environment becomes hostile how to tell if conduct is unwelcome Employee Responsibilities for PREVENTING SEXUAL and Other Workplace HARASSMENT appropriate responses participating in an investigation Chronology of Development of Workplace HARASSMENT Law 2011 EDITION. THIS FACT SHEET .. explains what workplace HARASSMENT is under federal This publication was prepared by David Kadue, a partner in law and what it is not, the kinds of behavior that may the law firm of Seyfarth Shaw. It emphasizes not only explicitly be interpreted as HARASSMENT in the workplace, how a SEXUAL and gender-based HARASSMENT but also HARASSMENT workplace environment can become hostile, how to avoid that is based on protected statuses other than sex. This Fact HARASSMENT of co workers, how to deal with HARASSMENT Sheet provides accurate and authoritative information regarding if it arises, and what to do if you become involved in a harass ment but is not legal advice.

2 For legal advice or other ex- HARASSMENT investigation. pert assistance, seek the services of a competent professional. Why Do Organizations Have intimidating, hostile, or offensive working as legal incentives to address and correct environment. that conduct at its earliest stages. Policies Against Workplace HARASSMENT ? The Supreme Court has explained Conduct constituting gender-based that there are two basic types of unlawful harass ment is not always SEXUAL in na- SEXUAL HARASSMENT . The first type involves ture. A man's physical assault on a wom- One important factor is the law. Over the HARASSMENT that results in a tangible em- an can be SEXUAL HARASSMENT if the as- last 40 years workplace HARASSMENT law has ployment action. An example would be a sault was based on the woman's gender, expanded dramatically, affecting both the supervisor who fires a subordinate for refus- even though there was nothing SEXUAL scope of conduct covered and the recover- ing to be sexually cooperative.

3 The imposi- about the assault itself. Or suppose, for ies that courts can award. A chronology of tion of this crude put out or get out bargain example, that men sabotage the work of legal developments appears elsewhere in is often referred to as quid pro quo ( this for a female co worker. Even if the men don't this Fact Sheet. The developing law has that ). This kind of SEXUAL HARASSMENT can engage in SEXUAL behavior, such as telling made clear that employers must prevent and be committed only by someone who can off-color jokes or displaying pornographic correct workplace HARASSMENT , and that an effectively make formal employment ac- photos on the walls, their behavior is antiharassment policy is key to those efforts. tions (such as firing, demotion, and denial of unlawful HARASSMENT if their behavior is promotion) that will affect the victim. based on the woman's gender. Yet employers typically go far beyond the law to forbid harassing behavior that A second type of unlawful SEXUAL HARASSMENT on bases other than the law itself does not necessarily reach, in HARASSMENT is referred to as hostile sex.

4 The quid pro quo type of harass- order to maintain the organization's good environment. Unlike a quid pro quo, ment described above happens with reputation, promote employee morale which only a supervisor can impose, respect to SEXUAL HARASSMENT , and per- and productivity, and take a moral stand a hostile environment can result from haps religious HARASSMENT (if an employ- against demeaning behavior. the gender-based unwelcome conduct er requires an employee to participate of supervisors, co workers, customers, in religious activities as a condition of vendors, or anyone else with whom the employment). The hostile environment What Is Workplace victim interacts on the job. The behav- type of HARASSMENT described above can iors that have contributed to a hostile happen with respect to any offensive HARASSMENT ? environment have included: conduct based on other protected sta- tuses, such as race, color, religion, na- threats to impose a SEXUAL quid pro quo.

5 Workplace HARASSMENT rises to an unlaw- tional origin, age, and disability. Federal ful level whenever unwelcome conduct on discussing SEXUAL activities; law protects all of these statuses. State the basis of gender or other legally protected telling off-color jokes; or local law often protects other statuses, status affects a person's job. Both employ- such as SEXUAL orientation. unnecessary touching;. ers and employees have a responsibility to In a hostile environment the same prevent and stop workplace HARASSMENT . commenting on physical attributes; principles that apply to HARASSMENT based SEXUAL HARASSMENT . SEXUAL harass- displaying sexually suggestive pictures; on gender apply to HARASSMENT based on ment is defined by the Equal Employment using demeaning or inappropriate terms; other protected statuses. In each case, Opportunity Commission (EEOC) as unwel- the questions will be whether there was using indecent gestures; unwelcome conduct, whether the con- come SEXUAL advances, requests for SEXUAL favors, and other verbal or physical conduct using crude language; duct was based on a protected status, of a SEXUAL nature when: whether the conduct was severe or per- sabotaging the victim's work; vasive enough to affect employment, and submission to the conduct is made either engaging in hostile physical conduct; or whether the employer will be liable.

6 These explicitly or implicitly a term or condition issues are addressed in the remainder of of an individual's employment, or granting job favors to those who partici- pate in consensual SEXUAL activity. this Fact Sheet. submission to or rejection of the conduct These behaviors can create liability if by an individual is used as a basis for employment decisions affecting such they are based on the affected employ- When Does a Work individual, or ee's gender and are severe or pervasive, Environment Become Hostile? as explained in the next section. None- the conduct has the purpose or effect theless, even if unwelcome conduct falls of unreasonably interfering with an indi- short of a legal violation, employers have To create a hostile envi ronment, unwel- vidual's work performance or creating an moral and organizational reasons as well come conduct based on a protected status 2 ISSN 1544-7820. must meet two requirements: (1) it must be cultures, or genders have varying sensi- very difficult for a harasser to explain subjectively abusive to the person(s) af- tivities to certain conduct.

7 For example, away offensive conduct by saying, fected, and (2) it must be objectively severe SEXUAL conduct that does not offend most She said no, but I know that she really or pervasive enough to create a work en- reasonable men might offend most rea- meant yes. A second-best approach vironment that a reasonable person would sonable women. In one study, two-thirds is for the offended employee to consis- find abusive. of the men surveyed said they would tently refuse to participate in the unwel- be flattered by a SEXUAL approach in the come conduct. To determine whether behavior is severe workplace, while only 15 percent would Ambiguous rejection. Matters are or pervasive enough to create a hostile be insulted. The figures were reversed more complicated when an offended environment, a judge considers: for the women responding. Varying lev- employee fails to communicate clearly. the frequency of the unwelcome discrimi- els of sensitivity have led some courts All of us, for reasons of politeness, natory conduct; to adopt a standard for judging cases of fear, embarrassment, or indecision, the severity of the conduct; SEXUAL HARASSMENT that considers the sometimes fail to make our true feelings reaction of a reasonable person belong- known.

8 Whether the conduct was physically ing to the protected group in question. threatening or humiliating, or a mere of- Soured romance. SEXUAL relation- fensive utterance; Because the boundaries are so poorly ships among employees often raise marked, the best course of action is to difficult issues as to whether continu- whether the conduct unreasonably avoid all conduct in the workplace that is i nterfered with work performance; ing SEXUAL advances are still welcome. potentially offensive on the basis of a per- Employees have the right to end these the effect on the employee's psycholo son's protected status. Be aware that your relationships without fear of retaliation on gical well-being; and conduct might be offensive to a co-worker the job, so that conduct that once was whether the harasser was a superior in and govern your behavior accordingly. If welcome is now unwelcome. However, the organization. you're not absolutely sure that behavior is because of the previous relationship, it HARASSMENT , ask yourself: is important that the unwelcomeness of Each factor is relevant no single factor is Is this verbal or physical behavior of a further SEXUAL advances be made very required to establish that there is a hostile SEXUAL nature?

9 Clear. environment. Trivial, isolated incidents do not create a hostile work environment. Is the conduct offensive to the persons What not to do. Sending mixed who witness it? signals can defeat a case of SEXUAL Courts have declined to find liability HARASSMENT . Complaints of SEXUAL where women were asked for a couple of Is the behavior being initiated by the HARASSMENT have failed because the dates by co-workers, subjected to three of- party who has power over the other? victim: fensive incidents over 18 months, or sub- Might an employee feel compelled to invited the alleged harasser to lunch or jected to only occasional teasing or isolated tolerate that type of conduct in order to dinner or to parties after the sup - crude jokes and SEXUAL remarks. remain employed? posedly offensive conduct occurred;. Courts have upheld findings of unlaw- Might the conduct make an employee's flirted with the alleged harasser;. ful HARASSMENT , however, where women job environment unpleasant?

10 Were touched in a sexually offensive wore sexually provocative clothing and If the answer to these questions is yes, used SEXUAL mannerisms around the manner while in a confined work space, put a stop to the conduct. alleged harasser; and subjected to a long pattern of ridicule and abuse on the basis of their gender, participated with others in vulgar lan- or forced to endure repeated unwelcome guage and horseplay in the workplace. SEXUAL advances. How Can You Tell if Conduct For these reasons, if you find These examples simply illustrate Is Unwelcome? conduct offensive, you should make how severe or pervasive discriminatory your displeasure clearly and promptly conduct must be to be legally action- known. Remember that some offend- able (and how blurred the line between Only unwelcome conduct can be HARASSMENT . Joking, comments, and ers may be unaware of how their lawful and unlawful conduct sometimes actions are being perceived. Others is). Given this uncertainty, prudent em- touching, for example, are not harass- ment if they are welcomed by the persons may be insensitive to the reactions of ployers address incidents of unwelcome fellow workers.