SEXUAL HARASSMENT A GUIDE FOR EMPLOYEES OBJECTIVES Learn

SEXUAL HARASSMENT A GUIDE FOR EMPLOYEES

OBJECTIVES • Learn the definition and types of sexual harassment • Understand your role and responsibilities • Learn how to report harassment, respond to employee reports and investigate complaints • Learn to recognize potential harassment situations

WHAT IS SEXUAL HARASSMENT? DEFINING AND UNDERSTANDING SEXUAL HARASSMENT

DEFINITION: • “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment. ”

BREAKING IT DOWN • Sexual harassment can include: • Different kinds of behaviors • Different kinds of motivation • Different kinds of harassers • Different kinds of victims

BREAKING IT DOWN • “Unwelcome sexual advances and requests for sexual favors” • Behaviors that are not invited or solicited • If told to stop, behavior is unwelcome • Unwelcome requests not limited to supervisor/subordinate relationship

BREAKING IT DOWN • “Verbal or physical conduct of a sexual nature” • Catcalls, whistles, nicknames • Gestures, “elevator eyes” • Unwelcome compliments or attention • Shoulder rubs, caressing, hugging, standing in someone’s way • Displaying swimsuit calendars, sexual objects

BREAKING IT DOWN • “When this conduct explicitly or implicitly affects an individual’s employment” • “Quid Pro quo” or “This for that” • Between a supervisor, manager or employer and a subordinate

BREAKING IT DOWN • “Unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment” • Anyone can be harasser: supervisor, subordinate, peer, customer, vendor, etc. • Third parties can be victims as well. • Jenny may like Bob’s lewd jokes, but Dave in the next cube may find them offensive. • Judged by the reasonable person standard • Impact, not intent

WHEN IS IT SEXUAL HARASSMENT? DETERMINING SEXUAL HARASSMENT

WHEN IS IT SEXUAL HARASSMENT? • Reasonable Person Standard • Judge from the perspective of the victim, not the harasser. • Could a reasonable person view this behavior as intimidating, hostile or offensive?

WHEN IS IT SEXUAL HARASSMENT? • Intent vs. Impact • The harasser’s intent isn’t the standard by which harassment is judged. • The impact of the behavior—whether intended or not—is what determines sexual harassment.

WHEN IS IT SEXUAL HARASSMENT? • When considering conduct, ask: • How severe is the conduct? • Is it welcome or unwelcome? • Would a reasonable person find it intimidating, hostile or offensive?

PREVENTION AND REPORTING UNDERSTAND YOUR RIGHTS AND RESPONSIBILITIES

WHAT’S AT STAKE? • Negative Employment Action • Training, suspension, demotion, termination • Civil Liability • If you harass one of your co-workers, you may be held personally liable in a lawsuit. • Harassment negatively impacts the morale and productivity.

PREVENTION • Familiarize yourself with your company’s sexual harassment policy. • Err on the side of caution. • Before you act, ask yourself, “Would I want to see this broadcast on the local news? ” • Establish a system for reporting and investigating claims of sexual harassment.

REPORTING • Your company has a policy for reporting harassment. • Harassment is never okay; you have the right to tell your harasser to stop. • Report the harassment to your supervisor or human resources. • Your company will try to keep the details of any investigation as confidential as possible.

EVEN IF… • Sexual harassment is never okay, even if: • What began as consensual behavior turned into harassment over time • It occurred at a company event off-site, or outside of normal company hours • First example: starting an email exchange of jokes with a coworker that, at some point, takes a turn toward the lewd and sexually vulgar • Second example: a co-worker groping you at a company outing like a picnic or sporting event, or while you’re on an out-of-town conference trip with a colleague

COMMON FEARS • Fear of retaliation from harasser • Fear of being seen as a troublemaker • Desire to handle it yourself • Embarrassed about being seen as a “victim” • You and all of your co-workers deserve a workplace free from harassment and intimidation.

COMMON FEARS – (CONT’D) • Employees are often VERY reluctant to come forward right away, if at all. • Many mistake an employee’s reluctance to report harassment as that employee’s consent of the harassing behavior. Many also mistakenly believe that most people would stand up to the harasser and tell him or her to stop. • While some do, studies show that most people don’t immediately tell their harassers to stop. • This is no way excuses the harasser’s behavior; on the contrary, it makes it all the more important that you take a proactive role in identifying and eliminating unacceptable behavior.

WHAT DO IF I WANT TO FILE A COMPLAINT? • ALL complaints or information about suspected sexual harassment will be investigated • Refer to the company’s sexual harassment policy. • Report to Human Resources (complaint can be verbal or written) • Aside from the internal process, employees may also choose to pursue legal remedies with governmental entities at any time (contact information provided on last page. )

SUPERVISORS Many supervisors make the mistake of transferring an employee away from a harassing manager or co-worker. This doesn’t address the root of the problem (the harassing behavior) and it leaves both the supervisor and the company open to liability in a retaliation lawsuit.

SUPERVISORS • All supervisors and managers who receive a complaint or information about suspected sexual harassment, observe what may be sexually harassing behavior or for any reason suspect that sexual harassment is occurring, are required to report such suspected sexual harassment to Human Resources • In addition to being subject to discipline if they engaged in sexually harassing conduct themselves, supervisors and managers will be subject to discipline for failing to report suspected sexual harassment or otherwise knowingly allowing sexual harassment to continue. • Supervisors and managers will also be subject to discipline for engaging in any retaliation.

RETALIATION The company takes sexual harassment very seriously, and will not tolerate anyone who retaliates against an employee who files a claim or participates in an investigation.

RETALIATION – (CONT’D) • A victim of harassment or anyone who aided in the investigation could be the target of retaliation. • Adverse employment actions can include things like demotions or firing, but also failure to be promoted or transfers to other departments, shifts or locations that the employee could claim are less desirable than the previous position. • Many supervisors make the mistake of transferring an employee away from a harassing manager or co-worker. This doesn’t address the root of the problem (the harassing behavior) and it leaves both the supervisor and the company open to liability in a retaliation lawsuit.

CASE STUDIES HOW WOULD YOU REACT?

QUESTIONS TO CONSIDER • How severe is the conduct? • Is the conduct welcome or unwelcome? • Who else might the conduct be affecting? • Would a reasonable person consider the conduct intimidating, hostile or offensive? • What would you do? • How would you react if you encountered this conduct?

1. DISCUSSING THE FUTURE Mike hired Sue straight out of college. He’s always been very attentive, commenting on her appearance and telling her how nice her body is. One day, Mike calls Sue into his office and tells her he’d like to go out for drinks after work to discuss a possible promotion. Sue is excited about the possible promotion but politely declines. She tells Mike she’d like to keep their relationship professional.

1. DISCUSSING THE FUTURE (CONT. ) • Almost immediately, the comments stop, but so does any attention from Mike. The promotion ends up going to someone else, and, a couple of months later, she receives a poor performance review. • Is this sexual harassment?

1. DISCUSSING THE FUTURE ANSWER • Answer: • Yes. • This is classic quid pro quo harassment. Even though Sue isn’t fired, Mike dangles the promise of a workplace benefit—the promotion—in exchange for a date. • When Sue declines, he denies her that benefit. Additionally, the poor performance review might also be seen as a negative employment action in response to Sue’s refusal. • There is also some possible hostile work environment harassment initially. It’s fine to compliment a co-worker, but it’s not okay to do so in an unwelcome, sexual manner. • e. g. It’s the difference between saying, “That’s a really nice shirt” and “I like the way that shirt shows off your body. ”

2. A SENSE OF HUMOR Everyone at work seems to like Matt. He’s friendly and outgoing, and the lunchroom echoes with laughter at his jokes. Heather doesn’t mind the jokes sometimes, but, lately, they’ve been getting really raunchy and sexually explicit.

2. A SENSE OF HUMOR (CONT. ) • One day after lunch, Heather approaches Matt. She explains that the jokes he’s been telling are offensive and they’re making her uncomfortable, and she politely tells him to stop. Matt replies that everyone else seems to like them, so he doesn’t see what the big deal is. He tells her that they’re just jokes, and she needs to develop a better sense of humor. • Is this sexual harassment?

2. A SENSE OF HUMOR ANSWER • Yes. • Even though Matt may not direct his jokes at Heather or intend to be offensive, he IS offending her. If the pattern of behavior continues, it would constitute a hostile work environment.

3. LANDING THE ACCOUNT Kevin just heard that he didn’t land the big sales account. Once he found out that his co-worker Jack was gunning for the account, he knew he didn’t stand a chance. Considering how friendly their supervisor Pam has been with Jack around the office, it seemed inevitable Jack would get the account. The only thing Kevin didn’t know was just how friendly Jack and Pam were.

3. LANDING THE ACCOUNT ANSWER • It’s unclear, given the uncertain nature of Jack and Pam’s relationship. However, if there IS a sexual relationship between them—even a completely consensual one—it might still be sexual harassment. • In this case, Kevin would have the claim for third-party quid pro quo harassment. • There are unforeseen consequences of workplace romances. Even if you’re not trying to, your relationship might end up causing harm to your co-workers, or create false perception of favoritism.

4. PRIVATE AREA Jim is one of the most talented, veteran mechanics at the auto shop. He pretty much keeps to himself during the day, preferring to get his work done rather than socialize. Last week, Carole, who was recently hired to work in the parts department, came to Jim’s workstation to deliver some parts he’d requested. She was shocked to discover a scantily clad pin-up girl taped to the side of his tool chest.

4. PRIVATE AREA (CONT. ) Carole tells Jim that she finds the calendar incredibly offensive and asks him to take it down. Jim chuckles and shakes his head. He says that he didn’t force Carole to look at anything, and, if she doesn’t like it, she doesn’t have to come over and deliver parts to him. It’s his private work area, anyway. So what’s the big deal? Is this harassment? Is Jim right?

4. PRIVATE AREA - ANSWER • Case law has indicated that a displayed pin-up, swimsuit or pornographic calendar can be sufficient enough to cause a hostile work environment. • Even if it hasn’t risen to the level that could leave the company liable yet, once a manager or supervisor receives a complaint, it is his or her obligation to investigate the claim, make sure the harassing behavior stops, and offer disciplinary action when appropriate. • Employees may claim that in this kind of scenario, you’re attempting to stifle their free speech rights or that it’s a private workspace. However, supervisors and companies are responsible if their employees engage in harassing behavior. Displaying a pin-up calendar isn’t an issue of free speech; it’s a harassing behavior that violates Title VII of the U. S. Civil Rights Act.

5. DIDN’T SAY A WORD • Every day, Marcus whistles when Claire passes by his desk. He rarely ever speaks to Claire, but Marcus always seems to have his eyes on her. He stares, bites his lip or grunts. It’s begun to make Claire feel very uncomfortable, to the point where she walks all the way to the other side of the office to avoid passing his desk. • Is this sexual harassment?

5. DIDN’T SAY A WORD ANSWER • Yes, definitely. • Non-verbal behavior such as whistles, grunts, gestures or staring can all contribute to a hostile work environment.

6. MAN UP • Dan has been having a hard time in the warehouse. A couple of weeks ago, Dan accidentally dropped a box he was carrying. Brad, one of his co-workers, joked that Dan was too weak to work it. Since then, other coworkers have joined in on the taunting, calling him “weak, ” “girly-man” and “sissy. ” • Is this sexual harassment?

6. MAN UP - ANSWER • This IS sexual harassment, though it’s slightly unusual for two reasons. • First, it’s same-sex harassment. It’s not the most common type, but anyone can be a harasser and anyone can be a victim. In this case, both the harasser and the victim are men. • Second, it’s unusual in that in this same-sex harassment, it’s about sex stereotypes rather than sexually explicit language. • A work environment where an employee experiences pervasive exposure to negative stereotypes based on sex constitutes a hostile work environment

7. JUST DINNER • Practically every day for the past two months, Marcus has been asking Cheryl out to dinner. At first, it seemed innocent enough, and Cheryl thanked him for the invitation but politely declined. She told Marcus she wasn’t interested in pursuing a romantic relationship. She thought that would be the end of it, but, the next day, he asked again.

7. JUST DINNER (CONT. ) • Marcus was persistent, asking her day after day. He’s never said anything mean or threatening, but he just won’t take “no” for an answer. Marcus is convinced that, eventually, Cheryl will change her mind. After all, he isn’t asking for much—just dinner. • Is this sexual harassment?

7. JUST DINNER - ANSWER • It’s important to make a distinction. Workplace romances can be tricky, and companies have their own guidelines for appropriate behavior when it comes to employees socializing. • That said, simply asking a co-worker out on a date is not sexual harassment. If you are going to do so, you must remember to be polite and respectful of your answer. • In the example above, however, Marcus is creating a hostile work environment. Even though he may not be using vulgar language, Cheryl has stated that his advances are unwelcome. He should have stopped, and his continued requests for dinner may constitute the basis for unwelcome, pervasive, sexual behavior in the workplace— the very definition of hostile work environment sexual harassment.

8. A BIG TIPPER • Olivia is the newest hire at the restaurant, and, so far, she’s been doing a great job. One night, she looks into the dining room and feels her stomach sink. Greg, a regular, just got seated at one of her tables. He has been making comments about her body, asking her on dates and touching her when she walks past the table. • Is this sexual harassment?

8. A BIG TIPPER - ANSWER • Yes. • Even though Greg is a customer and not an employee, it is still sexual harassment. Third parties—customers, vendors, contractors—can contribute to a hostile work environment, even though they are not employed by the company,

SUMMARY WHAT WE’VE LEARNED

OBJECTIVES - REVISITED • Learn the definition and kinds of sexual harassment • Understand your role and responsibilities • Learn how to report harassment, respond to employee reports and investigate complaints • Learn to recognize potential harassment situations

FURTHER RESOURCES • Equal Employment Opportunity Commission (EEOC) • Human Resources • Company’s Sexual Harassment Policy

FURTHER RESOURCES – (CONT’D) • Equal Employment Opportunity Commission (EEOC) – https: //www. eeoc. gov/laws/types/sexual_harassment. cfm • New York State – https: //www. ny. gov/programs/combating-sexual-harassment-workplace • Company’s Sexual Harassment Policy Please advise Human Resources immediately if you have not received a copy. Complaint form and due process