Sexual Harassment: Are Employers Responsible?

            There are two different types of sexual harassment that are generally recognized by our legal system. The type of sexual harassment which most people think of when the term comes to mind is called Hostile Environment Sexual Harassment, in which a person is sexually mistreated in their work place by one or more co-workers or employers.  Hostile Environment Sexual Harassment includes such situations as use of degrading or vulgar language, requests for sexual favors or references to one’s sexuality in an inappropriate context.  The second type of sexual harassment that is legally recognized is Quid Pro Quo Sexual Harassment, a situation in which the person’s sexuality is leveraged against them in some way affecting their employment.

DEFINING HOSTILE ENVIRONMENT SEXUAL HARASSMENT

            Hostile Environment Sexual Harassment is the type of sexual harassment that many people tend to know most about because it has been widely addressed by the media.  This type of sexual harassment also tends to be more out in the open in the work place than does Quid Pro Quo Sexual Harassment which is another reason that people in the general public are more aware of it.  Hostile Environment Sexual Harassment is the kind of sexual harassment that happens when an individual or group in the workplace is overtly vulgar or makes sexual comments about employees.

            There are many different types of behavior that might be part of Hostile Environment Sexual Harassment.  Such behavior includes things like using offensive, demeaning or derogatory language in the workplace, inappropriate touching of co-workers, or making references to one’s own or one’s co-worker’s sexuality.  Hostile Environment Sexual Harassment can also include more overt acts such as displaying lewd material in one’s work space or even making lewd comments and requesting sexual favors.

ARE EMPLOYERS RESPONSIBLE FOR HOSTILE ENVIRONMENT SEXUAL HARASSMENT?

            Employers can be held responsible for Hostile Environment Sexual Harassment if two conditions occur.  One is that the employer has to have known (or reasonably should have known) about the harassment taking place.  This means that if the employer witnessed or was told about the behavior, he or she should have reasonably known about it.  If the company doesn’t have any policies against sexual harassment or if harassment took place in front of a number of people, the employer should have known about the potential for this harassment.  The other criteria that must be met to hold an employer accountable for this type of sexual harassment is that the employer has to have made no reasonable attempts to end the sexual harassment.

EMPLOYERS AND QUID PRO QUO SEXUAL HARASSMENT

            Of course there are some times when the employer is actually the one perpetrating the sexual harassment.  This is most often the case in Quid Pro Quo Sexual Harassment which is defined as a situation in which employment is based upon sexual behavior.  For example, when a boss tells an employee that he or she risks job loss if he or she won’t perform sexual favors, this is Quid Pro Quo Sexual Harassment.  Other characteristics of this type of sexual harassment include demotions or lack of opportunity for promotions resulting directly from threats made about sexual favors or indirectly from beliefs about an employee’s sexual practices.  Similarly, loss of economic benefits or wages in relation to an employee’s willingness or lack of willingness to engage in sexual behavior on the job is a type of Quid Pro Quo Sexual Harassment.

            Because the employer is generally directly involved in the sexual harassment of this kind, the employer is held responsible for it more easily than in the case of Hostile Environment Sexual Harassment.  Any supervisory person can be held responsible for Quid Pro Quo Sexual Harassment, even if the employee initially agrees to the behavior.

LAWS PREVENTING SEXUAL HARASSMENT

            Although holding the actual employer responsible for their actions in the case of both kinds of sexual harassment can sometimes be difficult, there are a number of laws in place to make sexual harassment illegal.  Some of these relate specifically to outright sexual harassment of the kind described above.  For example, Title VII of the Civil Rights Act of 1964 makes unwanted sexual harassment and related behavior illegal for employers who have more than fifteen employees, including all government agencies. Executive Orders 11375 and 11246 of that act, which were created in 1965 by President Johnson, make sexual discrimination illegal and set the groundwork for affirmative action for women.

Legislation like this can also be related to establishing equal rights in the work place and in education.  For example, Title IX prohibits sex discrimination specifically within educational institutions.  Equal pay laws make sure that men and women are paid equally for the same work with some exceptions. This type of legislation helps to equalize the workplace which in turn helps to limit problems of sexual harassment.  This is because when people view each other as equal, they are less likely to accept mistreatment of themselves and others.

SEXUAL HARASSMENT IN THE REAL WORLD

But how does this all play out in the real world?  Let’s take a look at one example.  You are in your workplace when a female co-worker approaches you and asks your advice about a sexual harassment problem that she is having with her supervisor.  The supervisor overhead another worker making derogatory comments to her and ever since then, she believes that the supervisor has been hinting that she will not get a raise if she doesn’t comply with sexual requests.  She wants to know what she should do.

First, you would want to advise her about the two different kinds of sexual harassment.  The derogatory comments by other co-workers fall under the category of Hostile Environment Sexual Harassment.  Because the supervisor heard the comments and failed to do something about them, he can be held responsible.  The actual leveraging of the raise by the supervisor falls under Quid Pro Quo Sexual Harassment and the supervisor can be held directly responsible for that as well.

After you have explained these two types of sexual harassment to your co-worker, you should inform her of the specific laws mentioned above so that she has all of the information that she needs to make a case against the supervisor for both kinds of harassment.  You should also find out if she is part of a union because this can affect certain thing such as time limitations of her contract and how to handle conflicts with supervisors generally.  No matter how your co-worker is going to proceed, you should tell her to document everything that has happened and to even get witnesses if possible so that she has strong evidence to support her.  This will help stop the sexual harassment problem in the work place, a problem which affects everyone.

There is no easy solution to dealing with sexual harassment in the workplace. There is a lot of ambiguity about behavior. People have been accused of sexual harassment when no such thing has occurred and that, too, can cause damage in the workplace. However true sexual harassment of either kind described above still does occur and makes the workplace uncomfortable for many people. Working to make employers responsible for their role in controlling helps to limit the problem