What is Harassment?
Harassment, and more specifically, sexual harassment, is illegal. Sexual harassment is based upon sex or of a sexual nature; gender harassment; and harassment possibly based on pregnancy, childbirth, or related medical conditions. It includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.
It's really important to know what your specific state says. According to the United States Equal Opportunity Employment Commission (EEOC), sexual harassment occurs "when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or an offensive work environment." They further define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature under any of these types of conditions. Sexual harassment under Title VII of the Civil Rights Act of 1964 is strictly prohibited in the workplace. Sexual harassment is classified as a form of discrimination.
“Unwelcome” is the critical word. That is, sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome. It depends on the circumstances: one person might, in fact, welcome a request for a date, sex-oriented comment, or joke while another may not. And even though victims may feel pressured to accept certain conduct and actively participate in it, they may still find it offensive and objectionable.
What is Included?
Sexual harassment can be verbal, visual, or physical. It doesn't require sexual desire on the part of the harasser. It can be expressed in a variety of ways, some of which are very subtle, others more overt, but all of them are a violation of employee rights.
They can include:
- Dirty jokes and lewd language
- Sexual content posted on walls or a computer screen.
- Quid pro quo sexual harassment
- Sexual favoritism
- Leering suggestive looks
- Inappropriate touching, unwelcome physical proximity, or blocking or impeding someone's movement,
- Denied promotions or pay raises because of gender or sexual orientation.
- Unwelcome phone calls, e-mails, or text messages.
- Unwanted touching, scratching a co-worker's back, or wrapping one's arms around a coworker's waist, or interfering with that person's ability to move, or any other unwanted bodily contact.
- Unwanted flirting, asking for dates that are repeatedly turned down
- Sending or posting e-mails or pictures of a sexual or other harassing nature.
- Displaying objects, pictures, or posters that are sexually suggestive.
- Playing music that's sexually suggestive.
- Displaying sexually suggestive objects or pictures that are unwelcome
- Making repeated and unwanted advances to a coworker.
Impact of Harassment
According to the Journal of Personnel Psychology, sexual harassment experiences are associated with many negative outcomes, such as decreased job satisfaction, lower organizational commitment, withdrawing from work, ill physical and mental health, even symptoms of PTSD. Historically, sexual harassment has been identified as one of the most damaging barriers to career success and satisfaction, particularly for women. In fact, women are nine times more likely than men to quit their jobs, five times more likely to transfer, and three times more likely to lose their job because of harassment (National Council for Research on Women, 2014).
The effect on morale can be serious as well. Both men and women in the workplace can find their work disrupted by sexual harassment, even if they are not directly involved. Sexual harassment can have a demoralizing effect on everyone within the range of it, and it often impacts company productivity negatively too (Equal Rights Advocates). There is also a financial cost to employers. Sexual harassment costs a typical Fortune 500 company $6.7 million per year in absenteeism, low productivity, employee turnover. That doesn't even include the additional costs for litigation, executive time, and the tarnished public image should a case wind up in court (Cleveland State Law Review).
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees based on sex, race, color, national origin, and religion. It applies to employers with 15 or more employees, including federal, state, and local governments. It also applies to private and public colleges and universities, employment agencies, and labor organizations.
Despite the passage of this Act almost half a century ago, gender and race discrimination in the workplace is still a pretty serious problem. Title VII specifically states, "It shall be unlawful employment practice "for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
Title VII of the Civil Rights Act of 1964 states that it's unlawful employment practice for an employer
- to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation terms, conditions, or privileges of employment because of such individual's race, color, religion, sex or national origin or
- to limit, segregate or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the status as an employee because of race, color, religion, sex, or national origin. again based on all of those different factors.
Forbids discrimination including:
- Hiring and firing
- Compensation, assignment, or classification of employees
- Transfers, promotion, layoff or recall
- Job advertisements
- Recruitment
- Testing,
- Use of company facilities
- Fringe benefits
- Pay, retirement plans, and disability leave
- Other terms and conditions of employment.
Title VII Key Points
- Title VII is a federal law that was enacted in 1964 to curb incidences of workplace discrimination in the United States
- Classes protected under Title VII are race, color, religion, sex (including pregnancy), national origin, and genetic information
- Employers by Title VII are those with business ventures that employ at least 15 employees in a year, regardless of whether government- or private-owned
- Title VII protects any worker and applicant who is working or applying for a Title VII-covered employer in any area in which the United States has jurisdiction over
- The United States Equal Employment Opportunity Commission (EEOC) is the federal agency that is mandated to enforce federal laws that make it illegal to discriminate against employees and applicants, like Title VII
Sexual Harassment in Detail
Background
The reality is that sexual harassment takes a lot of different forms in today's workplace. According to a 2016 study done by the EEOC, about 75% of people who experience workplace harassment fail to bring it up with their manager, their supervisor, or a union representative. One major reason for that is that employees fear that they will be retaliated against at work. However, another possible reason for underreporting is that employees who are subjected to inappropriate behavior aren't really clear on when it crosses that line into something that is illegal harassment.
In today's society, sexual harassment takes on some really subtle forms. Instead of being propositioned for sex, or slapped on the butt, a victim might receive suggestive late-night texts, unsolicited discussions of sex, or surprise dates on the pretense of doing work. These days, sexual harassment is just as likely to happen through e-mail, social media, or some other venue outside of the office.
Causes of Sexual Harassment
The causes of sexual harassment can be complex, and involve socialization, politics, psychology. Work relationships can be quite intimate and intense, and those involved share common interests. Employees are oftentimes dependent on each other for teamwork and for support and are dependent on their supervisor's approval for opportunities and career success.
Supervisors and employers can grow accustomed to the power that they have over their employees. Such closeness and intensity can blur the professional boundaries and lead people to step over the line. Politics can be a cause, and problems caused by poor management, workplace bullying, frustration, and job or financial insecurity can create hostile work environments that spill over into the working relationship. Personal problems also can be a factor, and sexual harassment can be a symptom of the effects of life traumas, such as divorce, or the death of a spouse or a child.
Types of Sexual Harassment
There are two types of sexual harassment recognized by federal law, and also by most state laws. These are quid pro quo and hostile work environment.
Quid pro quo harassment. An employee is subject to quid pro quo harassment when a term of employment is conditioned upon accepting unwelcome advances of a sexual nature. Quid pro quo (meaning "something for nothing") is conditioning a job or a promotion on an applicant's or an employee's submission to sexual advances or other conduct based on sex. So this occurs when a supervisor's request for sexual favors or other sexual conduct results in a tangible job action. For example, "I'll give you the promotion if you sleep with me," or, "I'll fire you unless you go out with me."
Hostile work environment. In a hostile work environment claim, the employee must show that unwelcome comments or actions based on sex were severe or pervasive enough to interfere with work performance or created an intimidating, hostile, or offensive work environment. This occurs when an employee is subject to unwelcome physical or verbal conduct.
Again, the hostile work environment is so severe, so pervasive, that it creates this abusive work environment. While quid pro quo is pretty straightforward, the hostile work environment claims can be tougher to detect. We have to question what types of behaviors really qualify as harassment, and how much is enough to qualify as harassment.
Types of Inappropriate Conduct
Some workplace conduct is clearly sexual harassment.
Those clear examples are:
- Unwanted kissing
- Touching of breasts or genitals
- Butt slapping
- Rape
- Sexual Assault
- Requests for sexual favors
- Sexually suggestive comments
- Uninvited massages
- Sexually suggestive gestures including catcalls, ogling, or cornering someone in a tight space,
While overt forms of sexual harassment certainly still happen in the workplace, more subtle forms are on the rise. For example, any of the following actions can also be considered sexual harassment if they're happening often enough, or are severe enough to make that employee uncomfortable, intimidated, or distracted enough to interfere with their work:
- Repeated compliments of an employee’s appearance
- Commenting on the attractiveness of others in front of an employee
- Discussing one’s sex life in front of an employee
- Asking an employee about his or her sex life
- Circulating nude photos in the workplace
- Making sexual jokes
- Sending sexually suggestive text messages or emails
- Leaving unwanted gifts of a sexual or romantic nature
- Spreading sexual rumors about an employee
- Repeated hugs or other unwanted touching
Sexual Harassment by a Supervisor
Employees know that complaining about their supervisor or their manager can cause some serious problems at work. Unfortunately, many people put up with sexual harassment by their supervisors, the owner or CEO of their company for months and sometimes even years before they speak up. Don't wait too long, that's important. For sexual harassment claims, managers and supervisors have a special level of liability. If you put up with unlawful behavior for months or years, then suddenly speak up and complain, believe it or not, your employer could use it against you. It's not fair, but oftentimes in a court of law, it'll work.
Generally speaking, sexual harassment by supervisors and managers is about abusing a position of power. Many times it can be subtle and build up over a period of time. Ask yourself, have you observed any of the following in your employer?
- Inappropriately leaning too close to you at your desk
- Unwelcome touching
- Inappropriate language dirty jokes
- Consistently asking you, "What do you do with your evening?" "What did you do over the weekend?"
- Phoning you or emailing you at home, or off-hours
- Quid pro quo, expecting something in exchange for a promotion or pay raise
- Overtly asking you out on dates
Some of this is sexual harassment and some of it may not be sexual harassment. You have to obviously look at each case.
Unwanted Sexual Advances
Sexual harassment includes behavior such as unwelcome advances that make you feel self-conscious, nervous, afraid, or otherwise uncomfortable. Regardless of how it started, or how you initially responded, unwanted advances that persist or escalate can lead to a hostile working environment. Soon you just want to avoid all interaction with that person and possibly dread coming in to work. The harasser could be a coworker, a supervisor, an executive, or even a client or a customer.
Unwanted sexual advances come in many forms:
- Pressure to "hang out" outside of work
- A pattern of come-on, or flirting
- Comments about your looks or your body
- Sexually suggestive language
- Flowers, cards, or gifts
- Promises of job perks
- Fondling, hugging, inappropriate touching
- Advances outside of the workplace.
Perhaps the advances continued even after you told the person that you weren't interested. Perhaps you don't even know how to discourage the behavior. Maybe you don't want to get the person in trouble or fear that you will lose your job. Perhaps you've experienced threats or retaliation for refusing advances.
Sexual Assault
Sexual harassment usually starts with subtle behavior such as a comment, an invitation, a tentative touch, but as time goes by, harassers often get bolder. Sometimes they cross the line from unwanted advances or inappropriate touching, to sexual assault.
Sexual assault in a work setting is both a criminal offense and grounds for a civil lawsuit. Yet for many reasons, victims of workplace sexual assault often feel helpless to do anything about it. You can stand up for your rights. You can fight back
Behavior doesn't have to rise to the level of forcible rape to be considered sexual assault. There are degrees of sexual assault and assault can occur even with your clothes on. The law does not consider sexual contact consensual when it involves an employee and a person in a position of power (supervisor, executive, or owner). Harassers often use threats and the power of their position to convince the victim to do things that they wouldn't otherwise do.
In addition to rape, or "consensual" sex with a superior, any of these behaviors could constitute sexual assault in an employment setting:
- Kissing you against your will
- Lifting your skirt or your shirt, or unbuttoning your blouse or pants
- Groping your breasts or your backside
- Placing hands down the front or the back of pants
- Pressing against you or pulling you onto their lap
- Holding your arms, or blocking your escape.
- Disrobing or exposure by the harasser.
- Forcing or coercing you to perform or view a sex act.
Sometimes sexual assaults are fueled by alcohol in after-hours scenarios, but very often, assaults are committed in the workplace by harassers who chose their victims and choose their moments.
Inappropriate Touching
Some people claim to be "huggers", or "touchy-feely", but no one has the right to hug or touch you if it makes you feel uncomfortable. Unwelcome touching of a sexual nature is often disguised as friendly, or even paternal behavior. Under the law, it could be considered sexual harassment.
Every school kid learns about good touch and bad touch, but in a work setting, victims of harassment often endure unwanted touching for many reasons. "Oh, it's not that big of a deal, that's just how he is." "Am I reading something into this?" "Is it really innocent or is it something more sinister?" "Will I get this person in trouble?" And so that pattern continues, and oftentimes, it escalates. It is a big deal, and you don't have to endure it. Trust your instincts.
Unwanted touching can take a lot of different forms:
- Groping or grabbing
- Caresses or massages
- Brushing against you
- Hugging
- Kisses anywhere on your body
- Sitting or standing uncomfortably close to you
- Hovering over you while you're trying to do your work.
Sexual harassers get a sense of power or thrill from this kind of touching, and they're skilled at passing it off as innocent behavior. Now, whether it's a supervisor, it's a coworker, or whoever, it needs to stop, and you need to be protected from further abuse.
Sexual Pictures
Not everyone finds sexual images entertaining or harmless. You may find them demeaning or disturbing, making you self conscious, or making it hard to concentrate on your job. This is not something that you have to endure at work. Your employer should not condone it or make you feel like you're the "bad guy" for taking offense or speaking up.
In a bygone era, "sexy" pictures may have been tolerated in the workplace. Today, they are recognized as outright pornography or images that degrade and objectify women as well as reinforce outdated gender roles. This leads to a hostile work environment in which you feel anxious, uncomfortable, or even intimidated. It also fosters an environment in which other forms of sexual harassment are allowed to gain traction.
So some of the photos that might be considered harassment include:
- Centerfolds or nude pictures
- "Cheesecake" calendars or posters
- Pornographic depictions, whether that's a photo or even a cartoon.
- Sexual pictures that are sent to your work computer, or your phone
- Other offensive images of a sexual nature.
