Managers are an employer's "eyes and ears," so they have a key legal responsibility to be on the lookout for behaviors that could spark a sexual harassment complaint. Here's a primer on what sexual harassment is and how to react when you see it.
What is sexual harassment?
Sexual harassment occurs when one person attempts to exert power over another in the workplace through sexual intimidation.
Legally speaking, it's a form of sexual discrimination, which violates the Title VII of the federal Civil Rights Act. (States often have their own anti-sexual harassment laws.)
The EEOC, which governs that federal law, says sexual harassment occurs when "unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature ... affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile or offensive work environment."
Two kinds of harassment
Managers need to be aware of two kinds of sexual harassment:
1. Quid pro quo harassment literally means "this for that" harassment and it's usually the most blatant kind. It occurs when a boss uses job rewards (such as raises or promotions) or punishment (such as demotions or firing) to force employees into a sexual relationship or sexual act.
One single incident of quid pro quo harassment is enough to justify a lawsuit. And victims don't even need to suffer any actual physical contact; they need only show that a coercive offer was made.
2. Hostile environment harassment is more subtle. Employees who make such claims argue that the workplace is so sexually charged that it affects their job performance. Recognized causes include pornographic pictures displayed, verbal abuse, inappropriate touching, sexual jokes or demeaning gender-based remarks.
To justify hostile environment claims, employees must typically prove they were subjected to repeated offenses; one incident usually won't be enough.
In both types of harassment, employees must prove that the conduct was offensive to someone (not necessarily the intended victim of the harassment).
Example: Say a male employee tells a dirty joke to a female co-worker. She thinks it's funny, but a second woman passing by finds it offensive. That offhand joke could contribute to a hostile environment claim simply because someone finds it offensive. That is good reason for supervisors to discourage any amount of sexually charged jokes or behavior, even if the majority of employees don't have a problem with it.
Who can file lawsuits?
You may be surprised to discover that sexual harassment isn't just a male-against-female offense. While most cases involve men harassing women, some male employees have successfully filed sex harassment lawsuits against their harassing female bosses.
Also, people of the same gender can sexually harass each other, as long as the harassment is of a heterosexual nature. Example: A male employee's co-workers bombard him with sexually explicit photos and e-mails that make him uncomfortable because he is married.
Can harassers be personally sued?
When employees sue for sexual harassment, they usually name the employer and the individual harasser in the lawsuit. Lawyers typically spend more effort going after employers, but all managers should be aware that they could be paying for harassment out of their own wallets.
That fact gives you more reason to personally avoid any harassing behavior. It's also a good point to make to employees who have demonstrated borderline harassing behavior in the past. They'll back off quickly if they know that their personal fortunes are at stake, not just their employers'.
How should supervisors respond?
Supervisors should be well-versed in the organization's policy, knowing what does and does not constitute sexual harassment in the workplace.
If you see harassing situations, don't be afraid to call employees on the behavior and state why it's wrong, assigning discipline if necessary. Contact HR to discuss appropriate next steps or discipline. When directing employees on sexual harassment issues, advise them to:
- Avoid unwelcome physical contact.
- Never demean others. Such behavior could contribute to a hostile environment, especially if it's aimed at an employee's gender.
- Don't make suggestive comments. The workplace isn't the place for sexual banter. When giving a compliment, don't add innuendo.
- Keep the door open. If possible, employees who need to speak to employees of the opposite sex should not close the door and invite accusations. If you expect trouble, bring a witness.
Final tip: Never retaliate in any way against employees who have complained about sexual harassment, filed a lawsuit or participated in an investigation. Federal law makes it illegal to retaliate against such complainers.