Avoiding Sexual Harassment
Sexual harassment is defined as “unwelcome verbal, visual or physical conduct of a sexual nature that is severe or pervasive and affects working conditions.” Sexual harassment in the workplace is considered sex discrimination and is thus regulated by the Equal Employment Opportunity Commission (EEOC). The EEOC has the power to investigate a claim of discrimination and can issue a “right to sue” to employees who claim. The “right to sue” allows an employee to bring their claim of sex discrimination to court. Any claims made are typically heard by federal court since anti-sex discrimination laws are federal laws. Obviously the employer should try to prevent such claims before they become expensive lawsuits.
Avoiding Sexual Harassment Claims Between Employees and Supervisors
Supervisors are held to a different standard than other employees because they are in a position of power and control over their subordinates. It's always bad judgment for a supervisor to date someone who reports to them, but it does occur in the workplace and does not always lead to harassment of the employee. However, when there are intimate relations between a supervisor and a subordinate, someone else in the department may feel that the subordinate is getting preferential treatment, and that may be sexual discrimination. Supervisors should carefully consider all of the people affected by their decision to date an employee.
Avoiding Sexual Harassment When Complimenting Co-Workers
Co-workers are often fearful of complimenting one another for fear their comments will be construed as sexual harassment. Compliments by themselves are not illegal, but if the compliments focus on appearance more than on quality of work, there may be a problem. This is especially true for supervisors, who may jeopardize their position if they are inappropriate or offensive, or even if they do not take timely steps to stop harassment among employees.
Should All Sexually Oriented Conversation Be Banned in the Workplace?
To expect that people who work together aren't going to flirt, joke and even date is unrealistic. Likewise, to tell people that they can only talk about business-related matters is probably an unattainable goal. A good general rule is to be sensitive to the reactions of others and honor their request to avoid any sexual behavior or discussion that might be offensive.
What Kind of Behavior Constitutes Sexual Harassment?
Certain types of behavior are considered minor and thus can be brushed off unless the behavior is a recurring one:
- Comments about a person’s body
- Jokes of a sexual nature
- Request for dates
- Request for sexual favors
- Spreading rumors of a person’s sex life
- Touching another person’s clothing
- Pictures, screensavers, or emails of a sexual nature
Other types of behavior are much more severe and thus should be addressed immediately:
- Exposure of inappropriate body parts
- Threats of physical violence
- Battery, or attempt thereof
- Rape, or attempt thereof
Should I Transfer, Suspend or Terminate An Employee After a Complaint Or Discovery of Sexual Harassment?
If an employee complains about sexual harassment, make a full investigation as soon possible. If you discover sexual harassment, make a full investigation as soon as possible. Until you conclude a full investigation, avoid making any official actions.
The only exception is if one person hits, rapes, or attempts to hit or rape another person. In that case, call the police.
If you punish an employee too soon and without an accurate picture of the situation, you could face retaliation lawsuit. Employers should be forewarned that retaliation suits are much easier to prove than regular discrimination lawsuits.
Separate the employees in question, but make sure the separation is not inconvenient to their current job performance. Make sure you determine exactly who the harasser is before punishing anyone.
What Kind of Dating Policy Can I Use?
Employers should create an explicit dating policy to avoid legal headaches down the road. The policies most often used are:
- Complete ban – Dating is completely prohibited. Although this is the most straightforward solution, many employees will try to date despite the ban. Using this policy creates a lot of enforcement problems and can hurt morale in the office. This policy also raises questions about discrimination when a relationship is discovered. For example, should both persons in the relationship be punished or terminated? If only one of them are punished, who and why? Is the policy enforced equally against men and women, hetero and homosexuals?
- Partial ban – Dating is permitted, but not between regular employees and supervisors. Executive members (CEOs, CFOs, etc.) are prohibited from dating anyone in the office.
- Ignore it – The employer can ignore these kinds of relationships entirely as long as they don’t interfere with work. However, the employer must have some kind of discrimination and harassment policy in place, even though they choose not to regulate dating. Without a discrimination and harassment policy, the limits of a relationship can quickly spiral into legal liability.
- Documentation and Management – The employees dating are required to disclose the relationship to the employer (or the human resources department). They may be required to sign a document stating that the relationship is consensual and that both employees understand the sex discrimination and harassment policy of the employer. This policy allows the company to control certain conduct in the workplace, such as public displays of affection.
This policy requires that the employer monitor the employees to ensure that there is no abuse of power. The trick is to monitor workplace conduct only and not interfere with the relationship outside of the office. This policy also requires that the employer have a strong dating policy in place before any dating begins.
Do I Need an Employment Attorney?
Sexual harassment is a very serious issue. Harassment not only affects worker morale but may turn into a costly and lengthy legal battle. Consult an attorney immediately if sexual harassment is becoming a problem in your workplace.
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Last Modified: 02-13-2013 10:41 AM PST