Abstract
Knowing what constitutes harassment that is sexual in nature in the workplace and the impact it has on the employees and the organization are crucial to understanding its prevention. Sexual harassment doesn’t just affect women although they are the group representing the highest levels of sexual harassment in the workplace with 80% experiencing some form of it during their careers with 37% of men being harassed. Sexual harassment along with all forms of harassment have a negative impact on the working environment of the organization as well as the emotional, physical, and psychological wellbeing of the victims. Several high-profile cases in recent years have highlighted just the financial impact to the offenders and the organizations they work for as agents of that company. Preventing harassment at work needs to be the focus to creating a comfortable work environment. Clearly defined policies and procedures identifying what is deemed harassment, the consequences to the offender and establishing a zero-tolerance policy have shown to be effective in reducing workplace harassment. There is no one solution to fixing this problem but encouraging reporting of instances from both the victim as well as from witnesses will enforce the idea that these actions will not be tolerated by anyone, from the lowest employee to the highest.
Introduction
Sexual harassment can occur in many different settings, home, school, church, special clubs and groups, and in the workplace. Victims and harassers can be of any gender, male or female and does not necessarily involve the opposite sex and is often perpetuated by a person of power and includes actions that can range from mild transgressions to sexual assault and abuse. There are laws in the United States that state sexual harassment, in most contexts, is illegal however, instances of minor teasing, one-off inappropriate comments or one-off incidents are not considered illegal or covered by these laws. When it comes to the workplace, sexual harassment is usually considered illegal and against company policy when it is frequent, severe, is offensive, has a negative impact on an employee’s standing with the company, and/or creates a hostile work environment for the victim. Harassment in the workplace is also considered a form of employment discrimination and is illegal under the Equal Employment and Opportunity Act of 1972 while sexual harassment is outlined under Title VII of the Civil Rights Act and applies to most private and public organizations of 15 or more employees or members. Even with laws, regulations, and corporate policies designed to eliminate sexual harassment, it continues to be ever present. 79% of all workplace sexual harassment victims are women with 21% being men with 51% of the total number of employees being harassed were done so by a supervisor with 12% of those being threatened with termination if they fail to comply with the harassment. While sexual harassment is recognized in all types of businesses and industries, banking, business, and finance provide the most instances of sexual harassment. Preventing sexual harassment in the workplace has become a major goal of every U. S. company, domestically and abroad through training programs and bringing awareness to the behaviors that constitute sexual harassment.
Definition of Sexual Harassment
According to the U. S. Equal Employment Opportunity Commission (EEOC), sexual harassment is defined as “unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature” when the “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” (USEEOC). Under the EEOC guidelines, harassment comes in all forms, not just of a sexual nature. Other forms of harassment include remarks made that may be offensive in nature about a person’s sex, gender, or identity. Additionally, the accuser and the offender can be of the same or different sex or any combination thereof. The key point to remember is harassment of any kind becomes illegal once it becomes unwelcomed and unwanted and is pervasive or severe to the point the harasser’s conduct makes you uncomfortable and uneasy.
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Sexual harassment can either be sexual in nature or based on sex and be delivered verbally, physically, non-verbally or visually in a sexual nature. Verbal harassment can be commenting on someone’s body, clothing, behavior, and personal relationships, making jokes of a sexual nature or sexual innuendos, requesting favors of a sexual nature, gossiping and spreading rumors about someone’s personal life or sexual activity, or verbally threatening someone for turning down sexual advances. Physical harassment covers the act of blocking someone’s movement, inappropriate or unwelcomed touching of a person, or by forced contact such as kissing, caressing, or hugging. Non-verbal and visual harassment is eyeing someone’s body up and down, making obscene gestures, stalking, and displaying or sharing of material that is of a sexual nature.
Types of Sexual Harassment
Sexual harassment falls under two main types of classifications; quid pro quo and hostile work environment. Quid pro quo is Latin for “something for something” and usually occurs in the workplace when a supervisor, manager, or figure of authority implies in some fashion that an employee will receive something of value in return for accepting sexual advances from the superior or performing some act of a sexual nature. In the workplace, these advances are generally done as an offer for being hired, advancement in the company, or special treatment in the workplace and can also be used in exchange of an employee being reprimanded or terminated. In order for a claimant to prove a case of sexual harassment at work, several pieces of evidence must be presented: Was the person employed or applied for a position with the company being prosecuted, the person being accused of the harassment made unwanted sexual advances either verbally or physically, the accuser’s employment or other benefits were a condition of acceptance of the advances, the accused must have been an employee of the company at the time of the act, the victim was harmed due to the action, and the accused’s actions were the cause of the accuser’s harm. Legal action can be taken if the accuser accepted the advances and participated in the encounter or declined the offer and claims must be filed within 180 days of the alleged action taking place with the U. S. Equal Employment Opportunity Commission.
If a company or agent of the company is found to be guilty of inappropriate actions resulting from sexual harassment, the victim can claim compensatory damages including lost wages, lost benefits, or loss of employment opportunities and can claim emotional distress and get back their employment in position, title and pay if terminated or demoted for non-acceptance of the advances. Additionally, the accuser can recover punitive damages for overly abhorrent violations to dissuade the accused from engaging in or allowing harassment of this nature in the future. Punitive damages are rarely awarded in cases of workplace sexual harassment claims.
The other major classification of sexual harassment in the workplace is a hostile work environment. The conditions of a hostile work environment where the actions of a superior, peer, or other co-worker’s actions, either verbally or physically, make performing your job function impossible. Due to their actions and behavior, the terms, conditions, and reasonable expectations of a comfortable working environment have been altered to an uncomfortable environment. These actions typically consist of inappropriate jokes that are explicit and sexual in nature or sending or displaying material of nude people or otherwise viewed as pornographic qualify as creating a hostile work environment and considered sexual harassment. Actions or behaviors creating a hostile work environment are generally reported to a supervisor or member of the organizations human resource department to resolve the issue in house.
In order to claim a hostile work environment under the EEOC guidelines, the accuser must provide several pieces of evidence as proof of the harassment: the action or behavior taken must discriminate against a protected class according to the EEO, it must be persistent over an extended period, sever, and not a one-off situation, and the actions or behavior haven’t been properly or thoroughly investigated or appropriate action hasn’t been taken against the offender by the organization. Failure of the organization to take proper action can result in the organization being held liable for the actions of an employee against another. Any person reporting a hostile work environment against another employee cannot be retaliated against by the accused as a means of getting back at the accuser for reporting their inappropriate actions or behavior.
Current Cases Involving Sexual Harassment
Significant awards have been given to plaintiffs in several high-profile cases featuring claims of sexual harassment. In the case of Ani Chopourian vs. Catholic Healthcare West, the plaintiff was awarded $168 million in damages. Mrs. Chopourian was able to prove that during her two-year employment at a Sacramento hospital, she filed multiple complaints with the hospital with no action being taken against the defendant to resolve the claim. Mrs. Chopourian was able to prove the actions were pervasive due to the details from one of the claims that a surgeon at the hospital verbally and physically harassed her daily during her tenure with the hospital. According to court records, the award was not payed as the parties reached an undisclosed, negotiated settlement.
In another case, an employee of an Illinois Aaron’s Rent retail chain, Ashley Alford, was awarded $95 million in a federal court from her ability to prove sexual harassment by her manager that the company did little about her claims until the actions turned from sexual harassment to sexual assault. The award went unpaid as court records reflect an out-of-court settlement between the parties was reached, reported by several news reports being for $6 million.
A more recent case involved a Fox News host, Gretchen Carlson, and Roger Ailes, then CEO of Fox News, where Mrs. Carlson was awarded $20 million in damages in an out-of-court settlement in which she filed claims against Mr. Ailes that alleged Mrs. Carlson’s contact with the news organization was not renewed because she refused to sleep with Mr. Ailes suffering pervasive and severe sexual harassment at work. Mrs. Carlson went on to publish a book about her experience (USAToday).
The #MeToo movement was started after allegations were made against then movie producer and co-founder of Miramax Production Company, Harvey Weinstein, of sexual harassment, misconduct, and assault from several prominent actresses in Hollywood where Mr. Weinstein agreed to settle the sexual misconduct allegations for a reported $44 million with several cases of sexual harassment and assault still pending court rulings in Los Angeles and New York with some allegations involving a 16 year old minor. Based on these allegations and the still pending legal troubles and already found guilty in the court of public opinion, Mr. Weinstein has lost his job, his company, his wife, and his reputation, and has been distanced from colleagues and friends to save their own reputations and standing (Ingber).
Conclusion
The #MeToo movement has increased the public visibility of sexual harassment and assault on employees at work and the emotional, physical, and psychological effects it has on all involved but sexual harassment and assault in the workplace continues to be a widespread concern with research suggesting that up to 80% of women and 37% of men experience some form of sexual harassment in their lifetime. Sexual harassment and assault present serious consequences for the accuser, the accused and the organization where the harassment took place. In cases where the accuser is female, they tend to experience mental and physical health problems, interrupts their careers, lowers their earning potential, and can discourage women from attempting to advance their careers into higher positions and negatively impacts any progression made to narrow the gender pay gap (Chatterjee).
For men, sexual harassment tends to begin during their adolescents and increasing into their college years. Little is known of the impact of sexual harassment on men due to many cases going unreported due to the stigma associated with being a victim of sexual harassment and the embarrassment or feeling of being a lesser man for reporting such actions and the potential for perceptual differences in what constitutes sexual harassment between men and women (Bailey).
The impact to the organization comes in the form of high legal costs defending themselves and/or their agents against claims of sexual harassment, higher employee turnover rates as less people want to work for an organization that has an issue with sexual harassment, increased absenteeism among employees as they attempt to remove themselves from the situation which then reduces the production capabilities and revenue generation, and the harm to the organizations reputation as fewer people will want to work for an organization where these actions occur regardless of whether they are proven or not.
While all industries, organizations, and work environments can have issues with sexual harassment and assault, several types of environments present higher claims of inappropriate sexual behavior. These are industries where employees receive tips such as restaurants and bars, industries where employees work in isolated areas such as hotels employees and janitors, industries where employees lack legal immigration status are have work visas such as in agricultural fields and clothing factories, and industries that are dominated by men such as banking and finance. Each of these fields have higher than average claims of sexual harassment and assault and extra care should be given to ensure these actions don’t happen.
Recommendations
Remediation and extinction of the problem of sexual harassment in the workplace begins with the reporting instances of harassment and assault. If an employee feels they have been harassed, they should follow the steps for filing a complaint as outlined in their employee handbook and take detailed notes about the harassment, including as much detail as possible. Discuss the behavior or actions with your supervisor, manager, or human resource department, seek support from co-workers, friends, and family to help deal with the emotional toll workplace harassment can have, understand you are also protected from retaliation by the offender, your supervisor, and/or the organization, and reach out to the EEOC even if not filing a formal complaint. They have resources and counselors available to help you with reporting to your employer, through the process of filing a formal complaint, and providing emotional support to help you cope with the effects of the harassment.
As an employer, we must be proactive in establishing a workplace free of harassment by focusing on prevention. We have the responsibility of empowering our employees to report instances of sexual harassment, assault, or other form of harassment and discrimination. It is also our responsibility to create a well-defined policy outlining prohibited behavior specific to sexual harassment and assault, as well as other forms of harassment and provide this policy to every employee through the employee handbook and on the company’s intranet site for ease of accessibility. In this policy there needs to be a clear procedure for reporting complaints and the process of how the complaints are investigated along with steps of discipline and actions the employer can and will take against the offenders once the investigation has concluded. To get a feel for the current conditions, conduct regular employee engagement surveys that are done anonymously to identify any potential areas of concern or existing problems. We also need to empower employees that witness any instance of harassment while at work and provide training on how to intervene on behalf of the victim and report the issue as well. Providing this empowerment encourages employees to take ownership in creating a workplace free of harassment of any kind (AAUW). Creating a work environment that is free from all forms of harassment not only is required by federal, state and local laws making non-compliance illegal, it’s to our benefit as it increases employee morale, job satisfaction, and productivity all contributing to an increase in the organization’s bottom line. The EEOC provides access to additional resources and training programs to help us prevent harassment at work before it becomes a hostile work environment and/or illegal (IWPR).
References
Bailey, R. (2019, May 02). Many men are sexually harassed in the workplace – so why aren’t they speaking out? Retrieved from https://theconversation.com/many-men-are-sexually-harassed-in-the-workplace-so-why-arent-they-speaking-out-93081
Chatterjee, R. (2018, February 22). A New Survey Finds 81 Percent Of Women Have Experienced Sexual Harassment. Retrieved from https://www.npr.org/sections/thetwo-way/2018/02/21/587671849/a-new-survey-finds-eighty-percent-of-women-have-experienced-sexual-harassment
Equal Rights Advocates. Sexual Harassment at Work. (n.d.). Retrieved from https://www.equalrights.org/legal-help/know-your-rights/sexual-harassment-at-work/
Ingber, S. (2019, May 24). Harvey Weinstein ‘Reaches $44 Million Deal’ With Accusers. Retrieved from https://www.npr.org/2019/05/24/726507389/harvey-weinstein-reaches-44-million-deal-with-accuser
McCoy, K. (2017, October 25). Sexual harassment: Here are some of the biggest cases. Retrieved from https://www.usatoday.com/story/money/2017/10/25/sexual-harassment-here-some-biggest-cases/791439001/
Shaw, E., M. A., Hegewisch, A., M. Phil., & Hess, C., Ph. D. (n.d.). Sexual Harassment and Assault at Work: Understanding the Costs. Retrieved from https://iwpr.org/publications/sexual-harassment-work-cost/
The American Association of University Women. Employee’s Guide: Sexually Harassed – What Should I Do Next? (n.d.). Retrieved from https://www.aauw.org/what-we-do/legal-resources/know-your-rights-at-work/workplace-sexual-harassment/employees-guide/
The American Association of University Women. Employer’s Guide: Move beyond Compliance. (n.d.). Retrieved from https://www.aauw.org/what-we-do/legal-resources/know-your-rights-at-work/workplace-sexual-harassment/employers-guide/
The American Association of University Women. Colleague’s Guide: What’s My Role? (n.d.). Retrieved from https://www.aauw.org/what-we-do/legal-resources/know-your-rights-at-work/workplace-sexual-harassment/colleagues-guide-whats-my-role/
U. S. Equal Employment Opportunity Commission. Facts About Sexual Harassment. (n.d.). Retrieved from https://www.eeoc.gov/eeoc/publications/fs-sex.cfm
U. S. Equal Employment Opportunity Commission. Sexual Harassment. (n.d.). Retrieved from https://www.eeoc.gov/laws/types/sexual_harassment.cfm
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