What Is Sexual Harassment
Any of the following unwanted behavior may constitute sexual
harassment:
Sexual Harassment and Workplace
Issues
Sexual harassment is a form of sex discrimination when it would
not have occurred but for the person's gender. It is covered
under Title VII
of the 1964 Civil Rights Act . Some of the most recognized
forms of sexual harassment are:
- Direct sexual advances or propositions, including higher-ranked
employees asking for sexual favors.
- Intimidating or excluding women employees to jeopardize
their employment status.
- Creating a hostile workplace for women by using sexist
jokes, remarks, or pinning up sexually explicit or pornographic
photos.
Sexual harassment is not mutual and is unwelcome. It is rude,
demeaning behavior and is usually about the abuse of power.
In fact, sexual harassment psychologically hurts the women involved
and the work atmosphere. According to the National Council for
Research on Women, women are 9 times more likely than men to
quit their jobs, 5 times more likely to transfer, and 3 times
more likely to lose jobs because of harassment (The Webb
Report, June 1994). There may be serious economic consequences
as a result of sexual harassment. A woman's job status may be
jeopardized and and she may lose wages if she is fired or takes
extended leave to avoid the harasser.
The 1994 Merit Systems Protection Board Study of sexual harassment
noted that women in in traditionally male-dominated occupations
such as construction, policing, the military are more likely
to be harassed. Additionally, other studies have found that
harassment is more commonly found in female-dominated workplaces
where majority of women earn low wages and the management
is predominantly male ( see Frank E. Saal, "Men's Perceptions
of Women's Interpersonal Behaviors and Sexual Harassment"
in Sexual Harassment in the Workplace: Perspectives,
Frontiers and Response Strategies. Sage Publications:
Thousand Oaks, CA, 1996.)
A victim of sexual harassment may file legal claim even if
s/he has tolerated the behavior for fear of retaliation or
losing their job.
The law remains unclear whether a woman "who is not herself
the object of sexual harassment might still have a hostile
environment claim." (Women and Sexual Harassment: A
Practical Guide to the Legal Protections of Title VII and
the Hostile Environment Claim by Anja Angelica Chan,
JD, [Harrington Park Press: New York, 1994]).
Offensive and demeaning behavior does not have to be tangibly
detrimental (ex. wage loss, passed promotion) to the job to
be considered sexual harassment.
Preventing Sexual Harassment in the
Workplace
Employer Liability
Employers are responsible for the conduct of supervisors
and managers. Employers also have a responsibility to protect
their employees from harassment by non-employees (e.g., customers,
vendors, suppliers, etc). Managers are liable for sexual harassment
between co-workers if they knew or should have known about
it and took no steps to stop it. The existence of a company
grievance procedure alone does not automatically insulate
employers from liability. Employers should also take responsibility
to take action against sexual harassment once they are aware
it is occurring.
An effective sexual harassment policy stresses the illegality
of sexual harassment and delineates a clear and appropriate
complaint process while ensuring the confidentiality for the
victim . Additionally, such a policy encourages witnesses
or victims to report the behavior immediately and mentions
that retaliation against persons reporting harassment is illegal
and will not be tolerated.
Once finalized, an organization's sexual harassment policy
should be distributed to all employees and a copy posted in
an accessible and prominent location. Employers should also
consider scheduling seminars or workshops on sexual harassment
to promote company-wide knowledge of the policy.
Many states have drafted state prevention model policies
for employer use. Other employer resources concerning may
be obtained from federal employment discrimination enforcement
agencies such as the Equal Employment Opportunity Commission
(EEOC) and state fair employment agencies, or national organizations
combatting sexual harassment, such as Legal Momentum, which offers an "Employer Legal Resource Kit".
Benefits of Sexual Harassment Policies
Ignoring problems of sexual harassment can cost the average
company up to $6.7 million a year in low productivity, low
morale, and employee turnover and absenteeism, not including
litigation or other legal costs. Following clear and proactive
formal policies against sexual harassment in the workplace
is one way to prevent lawsuits and drops in productivity and
efficiency. ("Sexual Harassment in the Fortune 500", Working
Woman, Dec. 19, 1988).
Stopping Sexual Harassment
If possible, and if the harassment is not too severe or violent,
directly confronting the harasser may be useful. Also, although
having protested is not necessary for a claim, it would strongly
strengthen a claim.
In Back Off! How To Confront and Stop Sexual Harassment
and Harassers, Martha Langelan recommends taking these
steps:.
- Do the unexpected: Name the behavior. Whatever he's just
done, say it, and be specific.
- Hold the harasser accountable for his actions. Don't make
excuses for him; don't pretend it didn't really happen.
Take charge of the encounter and let people know what he
did. Privacy protects harassers, but visibility undermines
them.
- Make honest, direct statements. Speak the truth (no threats,
no insults, no obscenities, no appeasing verbal fluff and
padding). Be serious, straightforward, and blunt.
- Demand that the harassment stop.
- Make it clear that all women have the right to be free
from sexual harassment. Objecting to harassment is a matter
of principle.
- Stick to your own agenda. Don't respond to the harasser's
excuses or diversionary tactics.
- His behavior is the issue. Say what you have to say, and
repeat it if he persists.
- Reinforce your statements with strong, self-respecting
body language: eye contact, head up, shoulders back, a strong,
serious stance. Don't smile. Timid, submissive body language
will undermine your message.
- Respond at the appropriate level. Use a combined verbal
and physical response to physical harassment.
End the interaction on your own terms, with a strong closing
statement: "You heard me. Stop harassing women."
You may also file an internal complaint through the appropriate
avenues offered by the organization's policy on sexual harassment
if it has one.
If the victim is a union member, reporting the harassment
to the union steward may garner support and secure a potential
ally. According to the National Labor Relations Act, unions
must represent and aid their members in stopping sexual harassment,
a form of discrimination. There are strict limits on filing
grievances. They must be filed with 6 months of the date of
the incident you are complaining about. If the union is uncooperative,
the victim may file a complaint (also within those 6 months)
with the NLRB (National Labor Relations Board).
Documenting Harassment
Documenting the harassment is important for use as evidence
in a case or complaint.
You should:
- Photograph or keep copies of any offensive material at
the workplace.
- Keep a journal with detailed information on instances
of sexual harassment. Note the dates, conversation, frequency
of offensive encounters, etc.
- Tell other people, including personal friends and co-workers
if possible.
- Obtain copies of your work records (including performance
evaluations) and keep these copies at home
Legal Remedies
If you decide to file a complaint with an outside agency, it
is advisable to consult an attorney, although you are not required
to retain counsel in order to file. Attorney referrals can be
obtained by contacting local (e.g women's centers, rape crisis
centers) or national women's organizations, your union (if member),
specialized employee interest groups, law schools, legal aid
community services, state Fair Employment Practice (FEP) agencies,
or state Equal Employment Opportunity Commission (EEOC) offices.
In addition, your friends and professional contacts may know
suitable attorneys.
Interview all attorneys who may potentially represent you.
At the very least, any attorney you choose must specialize
or have experience in employment discrimination law. Ask the
attorney if she/he has prior experience dealing with sexual
harassment cases, and what the outcomes of those cases were.
Pay attention to the attorney's demeanor and to your "gut"
feeling about this person. Once you retain an attorney, pay
attention to how she/he treats your case. Are your phone calls
returned within a reasonable time frame? Does your attorney
take your concerns into consideration as she/he develops your
case? Like anyone else you may hire, you have the option
of firing an attorney who does not adequately represent you.
For more information on dealing with attorneys see: "Lawyerland:
The World of Attorneys" in The Frugal Shopper
by Ralph Nader and Wesley J. Smith. (Washington, DC: Center
for Responsive Law, 1992); "Legal" in Why Women Pay More:
How to Avoid Marketplace Perils by Frances Cerra Whittelsey.
(Center for Study of Responsive Law, Washington, DC, 1993)
and "Lawyers and Legal Research" in Sexual Harassment
on the Job by William Petrocelli and Barbara Kate
Repa. (Nolo Press: Berkeley, CA, 1995).
Overview of Legal Options:
Remedies Under Civil Law
- Filing your claim with the EEOC (under Title VII
of the 1964 Civil Rights Act).
You must file a claim with the EEOC within 180 days
of the last incident of harassment to begin the process
for obtaining relief under Title VII. An EEOC claim can
be filed in a manner to protect the victim's identity.
Title VII covers all public and private employers in the
United States, as well as U.S Citizens working for a U.S.
company based in a foreign country. Complaints can be
filed through EEOC district offices are located across
the United States. The Civil Rights Act covers only companies
with 15 or more employees. State fair employment agencies
(FEP) laws may be more generous and extend to smaller
companies.
The EEOC conducts its own investigation of the company
or organization. Through the investigation, the EEOC determines
whether or not harassment occurred, whether harassment
is provable in court, and whether other employees have
suffered from sexual harassment as well. Upon finishing
the investigation, the EEOC makes a determination. If
the EEOC finds in the favor of the victim (agrees you
were harassed), it can pursue (settle) the case for you
(happens in less than 1% of cases filed) or issue you
a 'right-to-sue' letter so you and your lawyer can file
a lawsuit independently. If the investigation finds you
were not harassed, you can appeal the EEOC's finding.
The EEOC investigation can be lengthy and take over
a year. If you wish, you and your attorney can skip the
EEOC investigation, but you must at least file a claim
with the agency before you can obtain the right to sue
letter that allows you to enter court.
Few sexual harassment cases get to federal court, and
those that do can take years. Victims who win sexual harassment
cases in federal court can receive the following remedies
: attorneys fees; reinstatement of promotion; compensatory
and punitive damages; pay for lost wages and benefits;
injunctive relief (changes in workplace policy and practice
to prevent future harassment). The amount of damages awarded
depends on the size of the company.
- Filing your claim under state Fair Employment Practice
(FEP ) statutes
States statutes are modeled after Title VII. Most states
have a Fair Employment Practice agency located in the
state capital that is responsible for enforcing state
statutes banning sex discrimination. Most states also
have an investigative process which varies. Be aware that
some states have weak FEP laws that provide for little
or no remedy at all. Time limits for filing claims with
FEP agencies range from 6 months to one year. Most FEP
agencies do not protect the victim's identity.
- Filing a common law tort suit allows victims to:
receive money for compensatory damages (personal injury,
lost wages, or health care expenses), or money from punitive
damages (money awarded to victim in order to punish company).
Assault and battery or wrongful discharge cases can also
file this suit. Confidentiality is not guaranteed, nor is
the woman protected from company retaliation.
The EEOC and state fair employment practice agencies
will first attempt to settle your case out of court.
- Dual filing
Filing your case with more than one agency (both EEOC and
state or local agency) is also an option. They sometimes
work together or share information on cases. But the EEOC
has a huge backlog and will often refer cases to local agencies
or local FEP automatically.
- Criminal Remedies
If the harassment crosses over into the criminal realm (e.g.,
sexual assault and rape), you should report the incident(s)
to the police.
Sexual Harassment in Schools, Colleges
and Universities
What Constitutes Sexual Harassment in an Educational Setting?
Sexual harassment in schools is illegal under Title
IX of the 1972 Education Act. This law applies to
schools, colleges and universities that receive any amount
of federal funding. Title IX allows the U.S. Department of
Education to investigate complaints, order remedies, and withhold
funding from educational institutions in violation of Title
IX. Enforcement of Title IX is administered by the Department's
of Education's Office of Civil Rights.
In 1992, Christine Franklin, a high school student from a
Georgia school district, became the first to win a Supreme
Court case for sexual harassment under Title IX. She claimed
to have been sexually harassed by her male science teacher
for two years. The harassment culminated in rape on three
occasions.
Equity in education is compromised and jeopardized by the
existence of sexual harassment in educational institutions.
In the 1993 American Association
of University Women (AAUW) study "Hostile Hallways",
85% of all girls and 76% of boys reported having been sexually
harassed at school. But, says Anne Bryant, former director
of AAUW, "The impact on girls is far more devastating". Many
more girls than boys said that, as a result of the harassment,
they were afraid in school or less confident about themselves.
Most of the harassment in junior high and high schools happens
in hallways. Classrooms are the second most frequent location
where harassment occurs. The most common complaints were inappropriate
jokes, looks, or gestures. Sexually suggestive touching, grabbing,
or pinching was the second most common complaint.
Most of the harassers are students, although 18% of all students
in the survey said they had been sexually harassed by a school
employee.
Many ask how one can tell whether the questionable behavior
is normal flirting, the effect of raging hormones, or when
it is sexual harassment. Nan Stein, of the Wellesley Center
for Research on Women and an expert on the sexual harassment
of young women, suggests considering the following checklist:
| Sexual Harassment |
|
Flirting |
| feels bad |
|
feels good |
| one-sided |
|
reciprocal |
| feels unattractive |
|
feels attractive |
| is degrading |
|
is a compliment |
| feels powerless |
|
in control |
| power-based |
|
equality |
| negative touching |
|
positive touching |
| unwanted |
|
wanted |
| illegal |
|
legal |
| invading |
|
open |
| demeaning |
|
flattering |
| sad/angry |
|
happy |
| negative self-esteem |
|
positive self-esteem |
Originally appeared in USA Today
What To Do if You are Harassed in a Federally-Funded
Educational Institution
Incidents of sexual harassment in elementary, middle
or high school should first be reported to the Principal,
if possible. They may also be reported to the Vice-principal,
school counselor, a member of the school board, or the
district Superintendent of Schools. College and university
students and staff should consult their student and staff
handbooks for information on how to file grievances. Schools,
colleges and universities that have not already done so
should develop grievance policies and procedures regarding
sexual harassment and distribute this information to students,
teachers and administrators. Persons experiencing harassment
should first follow grievance procedures established by
the school, college or university. If this action is ineffective,
the victim should report sexual harassment to the U.S.
Department of Education's Office of Civil Rights at (202)
260-7250 (phone) (202) 260-7250 (fax). If any criminal
behavior has occurred (e.g. sexual assault, rape), you
should report this to the police as soon as possible.
DISCLAIMER:
The information and materials on this site have been provided for general informational purposes only, are not comprehensive, not complete and are not legal advice. The information contained in the site is general information about sexual harassment and should not be construed as legal advice to be applied to any specific factual situation. None of the information is intended to constitute, nor does it constitute, legal advice. For information about your legal rights you should consult an attorney.
|
