Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act.

Like any other type of harassment, sexual harassment is a form of discrimination. To be illegal, harassment must be based on an individual’s membership in a protected class; and obviously sexual harassment is harassment based on sex.

Sexual harassment can include unwelcome sexual advances or requests for sexual favors. It can certainly be physical, but verbal remarks related to a person’s sex could also constitute sexual harassment.

• Sexual harassment is unwelcome behavior of a sexual nature from any gender.

Sexual harassment is generally defined as unwelcome behavior of a sexual nature. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct:

• Affects an individual’s employment,
• Unreasonably interferes with an individual’s work performance, or
• Creates an intimidating, hostile, or offensive work environment.

Sexual harassment is not limiting — it covers a wide variety of circumstances. The victim as well as the harasser may be any gender.

The harasser may be:

• An employee’s supervisor,
• An employee’s direct report,
• A supervisor in another area,
• A coworker, or
• Or a non-employee such as a customer, vendor, or independent contractor.

Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

• Employers must address harassing conduct immediately to protect employees from a hostile work environment.
• Courts consider several factors when ruling on if a work environment is hostile.

A hostile work environment is defined as behavior that creates an intimidating, hostile, or offensive working environment. A hostile environment is one that may contain discriminatory intimidation, ridicule, or insults — an environment created or condoned by the employer.

Among court cases, only those work environments that reasonable individuals find seriously hostile or abusive are considered “hostile environments.” The actions must be severe or pervasive enough to alter the workplace for the employee.

Of course, it can be very difficult to draw a line between offensive sexual conduct and unlawful sexual harassment. This is why employers must address harassing conduct immediately.

Sexual harassment is illegal when:

1. It creates a hostile work environment. This means:
   • The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive (with a hostile work environment, the harasser could be anyone); and
   • A hostile work environment can exist even if conduct isn’t directed at anyone in particular.
   In rulings, courts consider:
   • Nature of the conduct,
   • Frequency of the conduct,
   • Status of the harasser,
   • Number of harassers, and
   • Number of victims.

• Sexual harassment quid pro quo (“this for that”) situations typically involve someone with authority victimizing an employee.

Quid pro quo involves submission to sexually harassing conduct as a condition of employment. It also may involve submission to or rejection of harassing conduct when it is used as the basis for an employment decision. This type of harassment often results in some form (or threat) of economic loss where, for example, an employee is passed up for promotion because the person rejected a supervisor’s advances.

This behavior does not have to be explicit — it is enough if it is implied through the words or conduct of the aggressor.

A sexual harassment claim may proceed even if the victim submitted to the advances, as long as the advances were unwanted, and the submission was not voluntary.

A quid pro quo (“this for that”) situation is created when:

• Employment decisions are contingent on putting up with sexual harassment or providing sexual favors, and/or
• The quid pro quo harasser is typically someone with authority.

• Since supervisors are representatives of the company, a company can be held liable for the actions of its supervisors.

The extent to which an employer is liable for acts of sexual harassment by supervisors was decided in two Supreme Court cases, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries v. Ellerth, 524 U.S. 742 (1998). These cases decided that an employer is vicariously liable for the acts of its supervisors.

The Court held that where the harassment results in a “tangible employment action,” such as termination, demotion, or undesirable reassignment, the employer would be held liable for the actions of its supervisor, even if the employer was unaware of the conduct (because supervisors are representatives of the company).

If no tangible employment action occurs, an employer may raise an affirmative defense if it satisfies these two requirements:

1. The company must show it exercised reasonable care to prevent and promptly correct any sexually harassing behavior once it became aware of it, and
2. The company must show that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer (such as following a stated sexual harassment complaint reporting policy).

• Employers should immediately respond to and investigate all claims of sexual harassment. The goal should be to protect the victim.
• Designate a person outside of an employee’s chain of command to take harassment complaints.
• If sexual harassment has occurred, remedial or disciplinary action should be taken.

When an employee comes to the employer with a claim that the individual was sexually harassed, the way a company responds may have a direct impact on the outcome of the situation. Do not ignore the claim — take all complaints seriously.

Designate someone to take complaints

The company should designate at least one official outside of an employee’s chain of command to take harassment complaints. For example, someone in the HR department could be authorized to handle complaints.

Allowing an employee to bypass the individual’s chain of command provides additional assurance that the complaint will be handled in an impartial manner. An employee who reports harassment by a supervisor may feel that officials within the chain of command will more readily believe the supervisor’s version of events.

Investigate all claims

One of the first steps in an investigation is a meeting between the person responsible for the investigation (the designated official outside of an employee’s chain of command) and the victim. In this meeting, which should take place where the conversation cannot be overheard, the victim should explain what happened.

The person designated to take complaints should interview any witnesses to the events, including other employees and supervisors. Those people may already be aware of problem situations. If employers observe harassing conduct, stop it immediately. Then take time to record the date, time, name of the harasser, the harassing conduct, and any possible victims.

Remedial or disciplinary action

If the investigation determines that sexual harassment occurred, remedial or disciplinary measures should be taken. A company should have a policy and procedure established for dealing with this type of situation. The measures do not have to be those that the employee requests or prefers, as long as the measures are effective. Remedial measures are designed to:

• Stop the harassment,
• Correct its effect on the employee, and
• Ensure that the harassment does not recur.

Remedial measures should not adversely affect the victim. If it is necessary to separate the employees involved, the harasser should be transferred or suspended. Do not transfer the victim, unless the person requests a transfer.

• A company should take measures against harassers to protect employees.
• Measures should also be taken to help restore a safe and secure workplace for the victim.

When a company determines a person is guilty of sexual harassment, remedial or disciplinary measures can include:

• Oral or written warning or reprimand,
• Training or counseling the harasser to ensure that it is clear why the conduct violated the law and/or company anti-harassment policy,
• Monitoring the harasser to ensure that the harassment stops,
• Transfer or reassignment,
• Demotion,
• Reduction of wages,
• Suspension, and/or
• Discharge.

After the guilty party has been appropriately reprimanded, consider the victim’s needs. Try to find ways to restore the sense of a safe and secure workplace. Some measures employers should consider taking include:

• Restoring leave taken because of the harassment,
• Removing negative evaluation(s) in employee’s personnel file that arose from the harassment,
• Reinstating the employee,
• Having the harasser apologize (only do this with the victim’s consent, as the person may not want further contact with the harasser),
• Monitoring employee’s treatment to ensure the person is not subjected to retaliation by the harasser or others because of the complaint, and
• Correcting any other harm caused, such as compensation for losses.

Whatever corrective actions employers choose to make, the actions should reflect the severity of the conduct. Under U.S. Equal Employment Opportunity Commission (EEOC) rules, management is required to correct the harassment situation, regardless of whether an employee files an internal complaint, as long as the conduct is clearly unwelcome.

A company may already have procedures in place for handling sexual harassment cases. If so, maintain a goal to uphold those procedures, help maintain the anonymity of the victim, and try to avert any future incidences.

• Employers can create and share policies and training programs that help prevent sexual harassment.

Prevention is the most effective and cost-efficient method of dealing with sexual harassment. Every company needs to have a sound preventive program to let all employees know what constitutes sexual harassment, that it is illegal, and that this behavior will not be tolerated.

Help prevent sexual harassment

Companies should create and distribute a clear sexual harassment policy that promotes zero tolerance of sexually harassing conduct. A training program can also be developed and shared to help prevent sexual harassment from occurring in the workplace.

Create a respectful work environment

Other aspects of a training program can include:

• Civility training, which promotes a respectful work environment overall, and
• Bystander training, a violence prevention strategy.

• Employers should create and share a written sexual harassment policy that promotes zero tolerance of sexual harassing conduct.

Employers should develop a written sexual harassment policy and distribute it to all employees. Some states require that a sexual harassment notice be posted informing employees of their rights.

Employers may choose to request that employees sign a copy of the sexual harassment policy, stating that all have read and understood it. The sexual harassment policy is not something that employers should keep hidden. If all employees are aware that there is zero tolerance of sexually harassing conduct, such conduct is less likely to occur.

An effective sexual harassment policy may include the following items:

• A statement that sexual harassment is not allowed,
• A definition of sexual harassment,
• A non-retaliation policy that protects victims and witnesses from any retaliation as a result of initiating a harassment claim,
• Procedures for filing a claim of sexual harassment,
• Repercussions for sexual harassing conduct, including affirming the possibility of terminating an employee who takes part in offensive conduct,
• Guidelines for bystanders who witness harassment,
• A procedure for filing a sexual harassment claim such as a hotline, email address, and several different persons to whom complaints may be addressed, and
• A statement asking employees to report sexual harassment that the individual experiences or witnesses.

• Employers should provide training for all new employees and periodically for all employees on the company’s zero tolerance policies for sexual harassment.

A good anti-sexual harassment training program can go a long way in preventing sexual harassment and proving that a company took adequate measures to prevent sexual harassment.

Whether a video is used, a pamphlet is distributed, or a classroom session is held, training is important. Effective training may mean the difference between sexual harassment occurring or not. If a case goes to court, the difference may be measured as a large amount of dollars. The effect of sexual harassment on victimized employees can be lifelong.

Courts sometimes require evidence of not only employee handbooks and written policies, but proof that employers have conducted face-to-face training on the employer’s rules to avoid punitive damage claims. Training should be done for all new employees and periodically for all employees.

• In addition to anti-harassment policies and training, employers can provide employees with civility training to create a more respectful work environment overall.

Civility training is not focused specifically on harassment prevention, but rather on creating a more respectful environment overall, which should lead to less conflict and fewer incidents of harassment in the workplace. Research has shown that incivility is typically a precursor to harassment.

How can employers achieve and maintain civility in the workplace?

It’s not just about an organization protecting itself from civil rights lawsuits anymore—it’s about individuals treating everyone with respect. Being happy with a job isn’t just about the work individual’s do. Many employees cite coworkers as a primary source of workplace happiness, and the paycheck comes in second. With a variety of backgrounds and belief systems, employees of all stripes come together at work to earn a living and make a difference by working toward a shared goal.

In a diverse workplace, each person must take responsibility for individual actions to ensure the culture is fair and respectful for everyone. It’s natural to want to share opinions or even joke around, but if it causes an individual to pause and wonder if it may be out of line, the person probably shouldn’t do or say it.

To help ensure employees can identify when others have crossed the line, employers can train workers to ask:

• Would I want this person to say/do this to me, my child, my spouse, or my parent?
• Would this person say/do this if other people (e.g., a supervisor, HR, a customer, a reporter) were present?
• Would I want the public to see this person’s behavior?
• Is this behavior distracting someone from doing a job to the best of that person’s abilities?
• Is someone with less power involved? Will the person be too afraid to say the behavior is out of line?

Conscious inclusion

Focus on “conscious inclusion” for personal growth and organizational improvement. These are ways to practice conscious inclusion:

• Demonstrate empathy: Understand everyone faces challenges no matter a person’s background, religion, gender, or race. Accept people for the contributions each makes in the workplace.
• Communicate authentically: Address issues directly. Speak clearly and stick to the facts. Don’t let anger or emotions cause individuals to say something the person doesn’t really mean.
• Embrace differences: Imagine how boring life would be if people were copies of each other. Differences lead to discoveries and self-growth. Embracing differences can increase a person’s knowledge, understanding, and happiness.
• Acknowledge privilege: A person can acknowledge any help or advantages that person may have had to get to where the individual is today. It’s helpful for workers to understand that not everyone may have had those same experiences. Chances are good someone a worker disagrees with has overcome adversity to be successful, and the person may have valuable insights to share.
• Act courageously: Be the person who steps forward with acceptance. Others can learn from the example to build a foundation of fairness in the workplace.

Positive examples

In contrast to typical anti-harassment training, civility training tends to give people positive examples of how to behave rather than highlighting the behaviors to avoid. The training typically includes a focus on interpersonal communication, conflict resolution, and effective supervisory techniques.

• Employers can provide bystander intervention training to help prevent violence and sexual harassment at work.

Bystander intervention training is a violence prevention strategy. As the name implies, bystander intervention training encourages people who witness potentially harassing situations to step in to diffuse them. Bystander intervention training is being used in organizations to prevent violence and sexual assault.

The concept involves at least four strategies:

1. Help bystanders recognize potentially problematic behaviors, thereby creating awareness;
2. Create a sense of collective responsibility by motivating bystanders to step in and take action when anyone observes problematic behaviors;
3. Empower bystanders by building their skills and giving people the confidence necessary to intervene as appropriate; and
4. Provide bystanders with resources to call upon and that support intervention.

Normalizing

Bystander training can put an end to “normalizing.” Normalizing occurs when a person dismisses or overlooks bad behavior for so long that it begins to feel acceptable or expected. Typically, this occurs because a person believes the behavior is unavoidable or easier to ignore than to address.

There is no environment where people should continue to dismiss acts of harassment because “this is just the way it is.” Sexual harassment is pervasive in some workplaces, but that doesn’t mean it’s acceptable or something to tolerate.

Some businesses have intimidating authority figures or a culture that promotes inappropriate behavior. If the culture of harassment is uncomfortable for individuals, those individuals should take steps to shift the culture to a healthier direction.

Employees should use whatever influence the person has with peers, or through the workers own position, to set the expectation that no one deserves to be harassed. Whether a new hire or 20-year veteran, an employee should make it clear that sexism, unwanted sexual advances, or sexually inappropriate behaviors will NOT be tolerated.

• Employers may not retaliate against an employee for disclosing or discussing sexual harassment or sexual assault.

Retaliation against an employee who discloses or discusses sexual harassment or sexual assault is a risk even if an employee’s report of sexual harassment didn’t rise to the level of being illegal.

Retaliation is when an employer takes action against an employee in some way for making or supporting a claim of discrimination.

Even if employers handle a sexual harassment charge properly, and limit liability in that area, if a supervisor retaliates against an employee for reporting sexual harassment, company liability starts all over again.

Examples of workplace retaliation include:

• Terminating or demoting the employee,
• Changing the person’s job duties or work schedule,
• Transferring the employee to another position or location,
• Reducing the employee’s salary, and/or
• Denying the employee a promotion or pay raise.

• Six states currently require private employers to conduct training on sexual harassment.
• Sexual harassment training is strongly recommended for all employers regardless of state requirements.

Some states have specific training requirements regarding sexual harassment. Companies should consult state law for states where the company operates. Currently, only six states require private employers to conduct training on sexual harassment (though additional states require it for government employers). Still, training is strongly recommended by state and federal agencies.

If a company operates in the following states, employers should follow the specific guidelines.

States with regulations include:

• California,
• Connecticut,
• Delaware,
• Illinois,
• Maine, and
• New York.