Heading off Sexual Harassment

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Heading Off Sexual Harassment

As many HR professionals know all too well, the problem of sexual harassment at the workplace (which affects primarily women) is keeping pace with the increasing proportion of women in the workforce. Other reasons for this increase include the rising number of women in occupations once dominated by men and an increased openness and acceptance of sexual discussions.

The Bureau of National Affairs (BNA) estimates that 40% of women are sexually harassed at work; other studies estimate up to 90%. Since sexual harassment can and does result in serious emotional and financial cost to each victim and each organization, the aggregate costs are staggering. Without question it can adversely affect the job performance of the victim. Less obvious, however, is the effect on the workplace itself. A loss of trust causes absenteeism, decreased employee morale, and ultimately the deterioration of the organizational climate. Sexual harassment is also considered a health-and-safety issue because it has a devastating effect on the victim's physical and psychological well-being.

Whatw Exactly Is Sexual Harassment?

According to the Equal Employment Opportunity Commission (EEOC), "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting the individual; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment."

Sexual harassment not only includes requests for sexual favors in return for job benefits; leering, intentional touching and patting, salacious gestures and other advances that invite sexual activity, and other verbal and physical abuse are also considered harassment. In the Williams v. Saxbe case (413 F. Supp. 654 [D.D.C. 1976], reversed on other grounds (587 F.2d 1240 [D.C. Cir. 1978]), the court determined that sexual harassment was sexual discrimination as defined by Title VII of the Civil Rights Act of 1964.

The courts have defined two types of sexual harassment: that which results in "tangible job benefit," or what is known as quid pro quo, and "hostile environment" harassment. "tangible job benefit" harassment is the demand for sexual favors in exchange for job benefits such as improved working conditions, favorable reviews, raises, promotions, or job retention. It is a "give-in-or-else" situation and may involve physical injury and career or financial consequences. The harasser here must be a supervisor, made or female, since the harasser must have control over the working conditions of the victim.

Guidelines for harassment which creates a hostile or offensive working environment were articulated in the discussion of Bundy v. Jackson (641 F.2d 934 [D.C. Cir. 1981]). This ruling expanded coverage of sex discrimination cases to include "sexual harassment as a condition of work" and covered "nontangible injury to the victim." It encompasses verbal or physical sexual misconduct that creates an intimidating, hostile, or offensive working environment or that interferes with an individual's work performance. Hostile environment harassment can also include sexual misconduct by co-workers or third parties such as customers or vendors.

Employer Liability

The EEOC requires that the "workplace be free from sexual harassment and intimidation" and that employers take a "firm, proactive role in the prevention of sexual harassment in the workplace."

The case of Horn v. Duke Homes, Division of Windsor Mobile Homes, Inc. (755 F.2d 599 [7th Cir. 1985]) held that the employer is absolutely liable for the conduct of its supervisory personnel with respect to unlawful sexual harassment, even if the employer lacks knowledge of the sexual harassment. …