Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.
All employees, including part-time and temporary workers, are counted for purposes of determining whether an employer has a sufficient number of employees. An employee is someone with whom the employer has an employment relationship. Generally, the existence of an employment relationship may be shown by a person's appearance on the employer's payroll.
Title VII does not forbid all conduct of a sexual nature in the workplace, but only unwelcome sexual conduct that constitutes a term or condition of employment. Thus, for instance, Title VII generally does not prohibit either preferential treatment or disciplinary action based on consensual sexual relationships between co-workers. For example, the person selected for a promotion is romantically involved with the boss, or an employee is fired for consensual sex with a supervisor.
What is Sexual Harassment?
Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature is sexual harassment when the 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.
Sexual harassment can occur when:
- The victim and the harasser are members of the same sex or members of the opposite sex
- The harasser is the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker or a non-employee
- The victim is not the person harassed but is affected by the offensive conduct
- There is no economic injury to or discharge of the victim
- The harasser's conduct is unwelcome
An employee must communicate the ''unwelcomeness'' of the actions to the harasser, but it does not have to be expressed verbally. For example, if an employee walks away from sexual comments or removes her supervisor's hand in a case of unlawful touching, unwelcomeness is communicated.
Prevention is the best way to eliminate sexual harassment in the workplace. Employers should take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.
An anti-harassment policy should:
- Be written in plain English
- Define what constitutes sexual harassment and provide real-life examples
- Expressly and unequivocally prohibit sexual harassment
- Set forth an easy-to-use complaint procedure
- Designate more than one manager to whom employees can address complaints, including at least one person outside the employee's chain of command
- Require supervisors and managers to report any incidents of sexual harassment of which they become aware to someone in a position to take action
- Ensure confidentiality to the extent possible
- Protect individuals who lodge complaints or participate in the complaint procedure from retaliation
- State the corrective or disciplinary measures the employer will impose for sexual harassment, up to and including discharge of the harasser
- Establish a timetable for commencing and completing an investigation
The policy should be included in employee handbooks and orientation packages, posted in prominent locations in the workplace and given to all supervisors. In addition, management should provide sexual harassment training for its supervisors at least once annually and document the sessions.
Generally, the victim should inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.
Investigating Allegations of Sexual Harassment
Once an employer receives a complaint of sexual harassment, it must promptly begin an investigation and implement an appropriate remedy. The alleged harasser should not have any direct or indirect control over the investigation. The investigator should interview the employee who complained of harassment, the alleged harasser and others who could reasonably be expected to have relevant information. Before completing the investigation, the employer should take steps to make sure that the harassment does not continue.
If the parties have to be separated, then the separation should not burden the employee who has complained of harassment. An involuntary transfer of the complainant could constitute unlawful retaliation.
Filing a Charge
The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for the administration and enforcement of Title VII, which requires a complainant to exhaust administrative remedies before filing a discrimination action in federal court. Typically, the administrative process is initiated by filing a charge with the EEOC. Once a charge is filed, Title VII requires the EEOC to notify the employer of the charge within ten days.
Employees may want to wait to see if management corrects the harassment before filing a charge with the EEOC. However, if management does not act promptly to investigate the complaint and undertake corrective action, then it may be appropriate for the employee to file a charge.
In most geographic areas, a charge must be filed with EEOC within 300 days from the date of the alleged discrimination. In a very small number of areas where a state or local employment discrimination law does not apply, a charge must be filed within 180 days. This deadline is not extended because of an employer's internal investigation of the complaint.
The EEOC has a free mediation program. The program is voluntary, and all parties must agree to take part. The mediation process is also confidential. Neutral mediators provide employers and complainants the opportunity to reach mutually agreeable solutions. If a charge is filed against your company, the EEOC will notify you of your opportunity to take part in the mediation process if your company is eligible.
Unlawful for Employers to Retaliate
It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying or participating in any way in an investigation, proceeding or litigation under Title VII.
You may wish to consult an employment law attorney if you are unsure about whether Title VII applies to your business or an individual who works for you.