Which of the following true incidents do you believe are sexual harassment?
A co-worker keeps his wife's picture on his desk. The picture was taken on their Hawaiian honeymoon, and she's wearing a bikini. The picture is visible to anyone who enters his office.
An older man in the office refers to the younger women in the office as "the girls." When addressing them, he calls them "honey" or "sweetheart." Sometimes he puts an arm around their shoulder, and tells them that "pretty girls keep this old guy going."
As they walked out of a restaurant following a business lunch, the boss dropped a handful of M&Ms into his secretary's breast pocket and squeezed her breast.
A newly hired employee leaves his wife and two children at home when he accepts a job on an offshore oil rig. On the rig, he's taunted by other employees — and by supervisors. One day a co-worker holds him in a shower stall while another co-worker shoves a bar of soap between his buttocks and threatens to rape him.
Perhaps you find all these incidents offensive. Or perhaps you find the photo harmless, the older man lacking in judgment and the M&M and soap incidents repugnant. And therein is the challenge of sexual harassment — what's hostile or offensive is, to a large extent, in the eye of the beholder, which makes it hard to define.
What Is Sexual Harassment?
Officially, the EEOC says that sexual harassment includes "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." Specifically, such requests, advances or sexual conduct constitute harassment when:
Submission to such conduct is made a term or condition of employment or submission to or rejection of such conduct is used as a basis for employment decisions affecting the individual (these are often referred to as quid pro quo harassment).
Such conduct has the purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile or offensive working environment (commonly known as hostile work environment harassment).
That polite legalese covers, if you'll pardon the phrase, a multitude of sins: pressure for sex, touching, groping, suggestive behavior, provocative clothing, sexual humor, sexually explicit or suggestive photos, Internet porn, the Sports Illustrated swimsuit issue, the Victoria's Secret catalogue, and much more.
Are all those examples of sexual harassment under any circumstances? No. The courts have generally determined that something is harassment using the standard of a "reasonable person." (Some courts have held that if the alleged victim is a woman, then the standard is what a reasonable woman — not person — will consider unwelcome and sexual.)
That legalese certainly sounds, well, reasonable. But it hasn't kept sexual harassment from becoming the most controversial, divisive issue in the workplace.
That's because it's proven surprisingly difficult to reach a consensus about what's "reasonable." Cultural changes — including the greater prevalence of sexual images, language and discussion throughout society, a backlash against ideas seen by some as "politically correct," use of false allegations of sexual harassment to retaliate, and an increase in workplace dating — have complicated the picture.
The Middle Road
So what's a boss to do? Look the other way and hope for the best? Or clamp down on workplace behavior with ever more rules and policies to make sure that no one is ever offended?
Both approaches have been tried without much success. Ignoring the issue can lead to class-action suits and multimillion dollar judgments, as Mitsubishi Motor Manufacturing discovered. More policies led down an Orwellian path to "love contracts," in which employers require dating colleagues to sign a document stating they wouldn't claim sexual harassment if the relationship goes sour. (Don't misunderstand: We agree such a contract may be legally desirable under certain circumstances.)
The prudent approach is to take a middle road. State clearly that you take sexual harassment seriously and that you'll investigate all complaints promptly. Then follow these guidelines. They won't guarantee that no one will ever be offended. Indeed, sexual harassment law is so complex that we can't help you through every possible scenario. But they will help you through most situations.
Foster a climate of respect. Sexual harassment is often not about sex; it is about power. Harassment reflects a misguided sense of superiority (particularly over the person being harassed) and it's therefore more likely to happen when disrespect of any kind is tolerated. Don't allow employees to post sexually explicit photos, even in locker rooms or restrooms. Don't tolerate inappropriate humor, language or familiarity at work. For example, don't permit jokes or cartoons based on racial, ethnic or gender stereotypes to circulate. Don't allow employees to use profanity. And ask that employees refer to one another by name, rather than using nicknames or terms of endearment ("sweetheart," for instance).
Look for warning signs. If you create a positive environment, employees will usually step forward if there's a problem. But not always. It helps to be aware of the signs that may indicate a problem. Parallax Education, a Santa Monica, Calif.-based firm that specializes in sexual harassment issues, suggests watching for:
A noticeable change in the behavior of an employee, including, but not limited to, tardiness, absenteeism and mood swings.
An employee who avoids another employee, or shrinks from another employee's physical proximity.
Openly sexual behavior between employees, even if it seems welcome (for example, one employee sitting in another's lap).
Frequent after-work partying or heavy drinking
Unprofessional behavior during business trips or conventions.
If you observe any of this behavior, don't assume that there's a sexual harassment problem. You should, however, counsel employees not to engage in any openly sexual behavior at work, and remind them to act professionally when they represent the company — even if it's outside the office. If individual employees seem troubled, don't ask if they're being harassed, but do ask if there's anything you can help with.
Take seven steps to fight harassment. In a 1998 ruling on sexual harassment, the Supreme Court said that employers may be able to avoid liability or limit damages if they can establish that:
They exercised reasonable care to prevent and promptly correct any harassing behavior. An employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or otherwise failed to avoid harm. There are seven steps you can take to demonstrate a good faith effort in preventing and correcting the problem and encouraging employees to step forward if there's a problem. (For the seven steps, see "Stay Out of Jail" below).
Take all complaints seriously, but don't assume guilt. Any charge of sexual harassment should be taken seriously and investigated promptly (see "Stay Out of Jail" for more information). But don't assume that all accusations have merit. Employees may charge they've been harassed if a consensual relationship ends, to settle a score or to express anger. They may make a complaint against a manager in retaliation. (One employee, for example, filed a sexual harassment complaint within hours of being disciplined for excessive absenteeism). In each case, look at the evidence presented by the employee and do your best to reach an impartial conclusion. (The disciplined employee, for example, provided a list of witnesses to the alleged harassment, but in the investigation none of them corroborated the incidents).
Be sure that you don't take action without sufficient grounds to do so. In an effort to stop sexual harassment immediately, some supervisors have stepped in to solve problems that didn't exist. It's possible, for example, to overhear a conversation or to hear something out of context and assume that sexual harassment has occurred, when the employee in question views the situation differently. But always investigate if you have reason to believe harassment has occurred or a complaint is filed.
Keep sexual harassment complaints and investigations confidential. You won't accomplish anything good by letting the whole office know about a sexual harassment investigation, and you could do a lot of damage. For example, if an employee is accused of harassment and later found innocent, he could argue that he was defamed if word of the charges is spread. Talk to as few people as possible. Generally, limit any conversation to:
The employee who claims to have been harassed The person accused of the harassment Representatives in your HR department An attorney representing your employer in the case Any employees who are witnesses or possible witnesses to the alleged harassment.
Caution everyone involved to respect an employee's confidentiality and not to talk about the situation or the investigation.
Come to a conclusion. The investigation's purpose is to determine whether sexual harassment occurred and, if it did, to swiftly punish the conduct so it doesn't happen again. If you fail to take swift and effective action to prevent sexual harassment, you stand to lose all credibility in the eyes your employees, the EEOC and the courts. It can also result in punitive damages. Remember, whether you took effective action to prevent sexual harassment will probably be judged in hindsight and be based, at least in part, on whether sexual harassment occurs again under your watch.
Track complaints. Keep confidential records of all harassment complaints. Without records, you could be unaware of a pattern of harassment by the same person. Such a pattern could be relevant in determining someone's credibility or in disciplining an employee.
Don't ignore the aftermath. Sexual harassment investigations are painful, especially if the allegations prove true. Even when the investigation is complete and you've taken action, it will take time for the wounds to heal. Take these steps:
Do not answer questions about the case from other employees; the details should be confidential. You can answer questions about the company's policy on harassment or about how claims are addressed. If other employees gossip about the situation, ask them to stop, and let them know that if they continue to do it they may be subject to discipline that may include being fired. Put a copy of the conclusion reached following the investigation (even if the conclusion is that the investigation was "inconclusive") in both employee's personnel file. An employee who's been harassed may feel uncomfortable continuing to work alongside the harasser. If the employee who was harassed asks to be separated from the harasser, consider honoring the request by moving the harasser. Doing so shows good faith on your part. It isn't always reasonable to honor such requests, however. It is generally a bad idea to even consider reassigning an employee who was harassed; if she is unhappy with the new assignment, you may face complaints that you made the assignment in retaliation for the harassment claim.
If you have an employee assistance program (EAP), remind the employee who was harassed about the program. If you don't have an EAP, consider paying for a limited number of sessions with a professional therapist. Counseling is the compassionate thing to do and can help the employee be more productive at work.
Stay Out of Jail
Understand the legal landscape of harassment. Sexual harassment takes many forms. It can happen at work or off-site. It may involve employees, customers, or vendors. Very few people are truly expert on harassment law, but you should know the basics. (See "The Legal Landscape of Sexual Harassment.")
Follow the seven steps mentioned above:
1. Make sure your company has a written (and legally satisfactory) antiharassment policy. Work with an expert, such as an attorney, to develop a policy on sexual harassment. The policy should be easy to understand. Be sure it includes specifics about the procedures for making a complaint. The procedure should give employees options for making a complaint to more than one person.
2. Distribute the policy. Having a policy in a three-ring binder somewhere is not enough. Make sure all employees get a copy. Review it with employees, and have them sign a statement that they received it and understand it.
3. Conduct training. At a minimum, all managers and supervisors (yes, that means you) should have training on sexual harassment regularly (we recommend annually). One of the best ways to prevent harassment is to teach all employees about specific prohibited behavior and to tell them they will be held accountable for such behavior.
4. Audit employment decisions. Be sure that all employment decisions (such as promotions or terminations) are handled appropriately and consistently and that no decisions are made outside the system. Otherwise, for example, employees might be unfairly punished for resisting a supervisor's advances. If you work in a large organization, ask HR for help.
5. Conduct prompt and thorough investigations. Take every complaint seriously and investigate promptly. If your firm has an HR department, work with HR to conduct the investigation. If you don't have an HR department, consider bringing in an outside expert (such as an attorney or a consultant with expertise in sexual harassment). That's because although an investigation is critical, an incomplete, inaccurate or biased investigation can make the situation worse.
The investigation should include:
Interviews with the employee making the complaint
Interviews with the person charged with the complaint Interviews with witnesses (usually identified by the employee who was harassed or by the person charged with the harassment)
Review of any evidence presented by either side (such as notes, email, voicemail messages, photographs, etc.) Document each step of the process and any findings.
6. Take prompt and effective remedial action. If you conclude that harassment has probably or definitely happened, take action to stop it. Depending on the situation, that action might include:
Oral or written warning or reprimand Transfer or reassignment Demotion Reduction of wages Suspension Discharge Training or counseling of harasser to ensure that he or she understands why the conduct violated the employer's anti-harassment policy Monitoring the harasser to ensure that harassment stops
Ascertain what the complainant believes would be appropriate discipline. The discipline meted out should reflect the seriousness of the offense. If the harassment was "minor," such as a few crude remarks by someone with no history of misconduct, then counseling and an oral warning may be all that's needed. If the harassment was severe or persistent, however, suspension or discharge may be necessary. Remember, it's up to you to take swift and effective action to prevent a recurrence.
In most cases, it may also be necessary for the company to rectify the consequences suffered by an employee who was harassed. That may include:
Restoring leave taken because of the harassment Expunging negative evaluation(s) in an employee's personnel file that arose from the harassment Reinstating a fired employee Asking the harasser to apologize Monitoring treatment of the employee to ensure that he or she is not subjected to retaliation by the harasser or others in the workplace because of the complaint Correcting any monetary harm caused by the harassment (e.g., compensation for losses, including emotional distress and lost wages or salary.)
7. Follow up on remedial measures. Check back with the employee who made the complaint to be sure that any action taken has been effective. Document any follow-up interviews, including the employee's comments.
Bob Rosner is the co-author of The Boss's Survival Guide (McGraw-Hill, 2001), along with Allan Halcrow, former editor of Workforce Magazine and Alan Levins, senior partner of San Francisco-based employer law firm Littler Mendelson. Rosner is also founder of the award-winning workingwounded.com. He can be reached via fax at (206) 780-4353, and via e-mail at: firstname.lastname@example.org.