HR 101: The ABCs of Sexual Harassment

Sexual harassment has been a form of unlawful discrimination in the United States since the Civil Rights Act of 1964. Sexual harassment, as we understand it today, wasn’t outlined specifically in the landmark legislation.

By including the term ‘sex,’ along with banning discrimination based on race, color, religion, and national origin, the Act opened the door to the sexual harassment definitions and prohibitions we use today.

Although seemingly protected under the Civil Rights Act, few cases of harassment on the basis of sex were brought before the courts, or litigated successfully, in its early days. Initially, the courts viewed this type of harassment as a personal, not employment, issue.

In the 1970s, women’s groups became active in defending the right to work without harassment or discrimination. Grassroots movements put a name to the type of harassment they were experiencing, and two landmark cases shifted the landscape on this type of workplace harassment.

When did we start using the term ‘sexual harassment’?

The term ‘sexual harassment’ is attributed to Cornell University teacher and activist Lin Farley. Farley, a journalist, was teaching a course on women and work.

In discussions with students, she found a common thread. Each was forced to quit or be fired from a job after refusing the advances of a boss. She coined the term ‘sexual harassment’ as an umbrella term for the issues women (and men) suffered at the hands of their employers.

In 1975, Farley testified before a New York City Human Rights Commission hearing about women in the workplace. The New York Times covered the meeting and headlined the story with the term that has become mainstream in America and around the world.

Landmark cases changed how the law was enforced

In 1974, Paulette Barnes filed the first sexual harassment case in the U.S. Working for the EPA, she claimed her employer fired her after refusing the advances of her supervisor. The court initially dismissed the case; however, Barnes won on appeal in 1976.

In 1976, the first case that defined ‘quid pro quo’ harassment was brought before the courts. Diane Williams said her employer fired her for refusing to have sex with a supervisor.

A U.S. District Court found it a form of sex discrimination because her employment was conditional on submitting to his sexual advances. The ruling said that since the supervisor only required women to comply it was in violation of the law.

How does the EEOC define sexual harassment?

Following these cases and worker demand, in 1980, the EEOC provided guidance on sexual harassment. It pronounced the practice as discrimination when workers were subjected to:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when:

• submission to such conduct is either explicitly or implicitly a term or condition of an individual’s employment, or
• submission to or rejection of 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.

These guidelines created the two types of sexual harassment we recognize widely in the United States. The first is ‘quid pro quo’ harassment, Latin for ‘this for that.’

The second is hostile work environment harassment. Each is illegal: both rely on the condition that the advances are unwelcome.

Sexual harassment does not occur when the behavior is consensual. Coworkers, in most businesses, can have a relationship. Sexual harassment can, however, spill past the consenting participants to affect others in the workplace.

What are the different types of sexual harassment?

There are 3 main categories of sexual harassment: verbal, physical and visual. These encompass most of the harassment that occurs. However, there may be other ways employees feel sexually harassed at work or, when off-hours, by their colleagues.

Verbal harassment

Verbal harassment can encompass a wide range of things from comments to demands. Dirty jokes, lewd remarks, nicknames, calling someone ‘honey,’ or ‘sweetie,’ or catcalling may be obvious forms of harassment. Discussing one’s own sexuality and fantasies, may be harassment.

Discussing others’ sexuality, including telling lies or spreading rumors about their sexuality or orientation can be verbal harassment. Repeatedly asking a coworker or subordinate for a date can also be harassment.

Verbal harassment can come from anyone: coworkers, management, customers, or vendors. Verbal harassment could include a coworker watching pornography, for example, while colleagues are able to hear inappropriate content.

If an employee is told they must listen to, participate in, or comply with unwelcome sexual behaviors or advances, it is considered sexual harassment.

Physical harassment

Physical harassment includes unwelcome touching, like touching of another person’s hair, clothing, or body. Hugging or kissing, brushing or rubbing against another person, either ‘accidentally’ or on purpose could be physical harassment.

Other forms include making lewd or intimidating gestures — like simulating sex acts physically but non-verbally. Sexual assault, abuse, and rape are extreme types of physical harassment, but can occur in the workplace or beyond.

Visual harassment

Visual harassment includes materials of a sexual nature. They can be pinup calendars, pornographic live or anime images or content, or even graphic t-shirts or hats with explicit or suggestive language.

An employee’s ‘workspace’ is not private: it belongs to the employer.

Exposing oneself, or sending others lewd materials, messages, or content would be harassment. Photoshopping or drawing inappropriate images or cartoons of others could be another form of visual harassment.

An employee’s ‘workspace’ is not private: it belongs to the employer. Hanging materials of a sexual nature in an office or cubicle would be visual harassment.

If an employee is watching pornography or looking at sexual images on their computer where others may pass by, they may be visually harassing their colleagues.

What is quid pro quo harassment in the workplace?

Quid pro quo harassment occurs when an employee must do something or tolerate behavior as a condition of employment. Quid pro quo typically occurs when a supervisor or someone in authority makes advances, demands, or requires a subordinate tolerate behavior of a sexual nature.

If the employee tolerates or goes along with the harassment, they may not be fired, may be promoted, or may be given favorable work assignments. If they refuse, the opposite may occur.

The harassment does not have to be implicit: a supervisor doesn’t have to spell out ‘date me or I’ll fire you.’ The manager doesn’t have to tell employees ‘put up with the dirty jokes and I’ll give you better shifts/hours.’

The quid pro quo dynamic

The harassment may be implied. Workers may recognize colleagues who tolerate the occasional ‘pat on the backside’ are given more choice assignments. While the supervisor may have made no specific demands, the quid pro quo dynamic is implicit.

In most cases, quid pro quo harassment comes from the top down. In order to get away with the behavior the harasser must be in a position of power. Outsiders may also subject workers to quid pro quo harassment. Vendors may promise lower rates or more favorable terms in exchange for dates or sexual favors.

Employees may understand they must (or someone has asked them to) tolerate the unwelcome advances from top clients. These may not be a direct supervisor quid pro quo arrangement, but the power dynamic puts them in a similar, prohibited category.

What defines a hostile work environment?

A hostile work environment is one in which employees are subjected to sexual behaviors that are unwelcome. These can include verbal, physical, or visual harassment that is so severe (even for a single occurrence) or so common and pervasive, they create an environment that makes it difficult for an employee to tolerate.

Some violations, such as physically assaulting a coworker or exposing oneself, are so egregious that employers should consider even a single instance to be a terminable offense. Other behaviors may be subtle or overt, but persistent and prevalent in the workplace.

A hostile work environment is one in which employees are subjected to sexual behaviors that are unwelcome.

These can create an atmosphere where employees feel the need to avoid others, even other workplace areas, to limit their exposure to the behavior. For those who are not comfortable with raucous colleagues, the answer isn’t avoidance — it’s eliminating the offending behavior.

Sexual harassment doesn’t have to be onsite

We’ve all seen instances like the Jeffrey Toobin situation, where an employee didn’t shut down their Zoom window to the horror of colleagues. Sexual harassment doesn’t have to be onsite. Remote workers can be victims of a hostile work environment or even quid pro quo harassment just like any other staff member.

In some cases, employees resign their position rather than continue to experience the harassment. While employers may think this solves their ‘problem,’ the opposite is true. They still have a manager or worker who abuses others. That can result in repeat problems, diminished performance and morale, and ultimately churn.

What is the reasonable person standard?

The occasional off-color joke or the elderly customer who calls your barista ‘dear’ are generally not considered sexual harassment. Sexual harassment, like many other legal issues, occurs when a ‘reasonable person’ would consider the action or behavior offensive.

The courts use this standard to decide whether a harassment claim is legitimate. It’s not what the most sensitive person would consider harassment — nor the most open-minded.

It’s what the average person would consider inappropriate behavior. The law also uses the reasonable person standard in cases of negligence, injury, and other civil matters.

What is an employer’s responsibility for sexual harassment?

Recognizing and preventing sexual harassment in the workplace is everyone’s job, but business is responsible for maintaining a professional workplace.

The courts have ruled that employers who know about harassment must take steps to eliminate it. But beyond that, they also have responsibility for prevention.

The workplace must demand a culture of respect for all employees, regardless of their status in the organization. To achieve that, proactive steps are necessary.

Preventing sexual harassment begins with training. Whether it’s in-house sessions or online classes, it’s important for employees to understand their rights and responsibilities to maintain a professional environment.

In some states, training to recognize and report sexual harassment is mandatory for employees. In others, training is mandatory for supervisory staff only.

All employees should participate in training, early in their tenure and periodically, to recognize and report sexual harassment. Underscore that workers are prohibited from harassing others and if they witness or are victims of harassment they should report the problem immediately to their supervisor or HR.

What to do when harassment occurs in the workplace

Beyond training, business needs to create a culture that responds quickly to complaints, investigates them thoroughly, and takes any needed actions to assure the harassment stops. Many employees fear retaliation if they file a complaint; others feel embarrassed; still others don’t want to ‘cause trouble.’

Training should outline these sentiments are not acceptable. It’s everyone’s responsibility to maintain a culture of respect. If management is unaware of a problem, it may be impossible to correct.

Leadership must ask employees to take the first step to resolving the issue. Then they must make that step as painless and comfortable as possible.

In some cases, employers implement anonymous tip lines to give employees a small level of comfort in reporting. These can be problematic, however, since it may be difficult to fully investigate a claim when the person who reported the issue may not be available for questions.

What are employees’ responsibilities with sexual harassment?

A culture of respect requires employees are trained to recognize the types of sexual harassment that can occur and their role in keeping the workplace professional.

Victims are not the only workers responsible to report inappropriate behavior. Staff members who witness others being harassed, or bystanders, should be willing to intervene or report the matter. They should have the ability to do that confidentially, if necessary.

Victims should clearly understand their employer does not expect them to tolerate unwelcome behavior. If they are confident in doing so, they should tell the perpetrator immediately to stop. If they are uncomfortable doing so, or if they’ve asked the person to stop but the action persists, they should report it immediately.

Witnesses and bystanders should clearly understand their responsibility to intervene if necessary or to report incidences they hear or see. It takes everyone to create and maintain a culture of respect. Management is there to support the workforce, but they need help and input from staff.

How can employers mitigate sexual harassment in the workplace?

A workplace completely free of sexual harassment and discrimination is the goal, but it may be difficult to achieve. Wherever there are people, either in-person or remote, there is an opportunity for inappropriate behavior. Employers must take proactive steps to assure each management and coworkers treat each employee with the respect and professionalism they deserve.

Start with a strong policy that outlines sexual harassment will not be tolerated. Harassment diminishes the workplace and employers must address it immediately and appropriately. Disseminate your policy widely, with reminders periodically if necessary.

Provide training on how to recognize harassment in the workplace. In many cases, egregious harassment began with small steps: the more the offender got away with, the more emboldened they became.

Eventually the harassment is intolerable, resulting in churn, an EEO complaint, or a lawsuit. The objective is to stop the harassment and correct the behavior (or discipline/terminate the offender) before it becomes untenable.

The importance of training and a painless reporting process

When employees are trained to recognize the different types of harassment, they are more confident about making a complaint (yes — it is a big deal) to their supervisor or HR. Provide more advanced training for management staff and require refresher courses periodically.

Create as painless and responsive of a reporting process as possible. Let employees know how to file a complaint, and what the process for investigation will be.

Respond immediately to any concerns and investigate them thoroughly. The old ‘if you want to get along, play along’ attitude simply doesn’t apply in today’s workplace.

Excuses like ‘they didn’t mean anything by it,’ aren’t sufficient either. Employers should conduct investigations should be done in good faith and thoroughly. As you settle the claim, make sure any corrections, disciplinary actions, or dismissals are commensurate with the offense.

Policies and training are an affirmative defense

If a claim is filed with an outside agency or a lawsuit is brought against the company, policies and training may be an organization’s strongest affirmative defense. Judges and mediators will want proof you’ve taken all the necessary steps to prohibit harassment; trained staff in recognizing and reporting any issues; and created practices to respond to concerns.

Legal compliance within personal differences at work

The challenge for many businesses is that sexual harassment is subjective. The law clearly states the behavior or actions must be ‘unwelcome’ to constitute harassment.

What is unwelcome to some may not be to others. The courts have ruled the occasional off-color joke is generally not harassment. Nor is asking someone for a date — providing, if they say no, there are no more requests.

Harassment is in the eye of the beholder. A married couple may think it’s acceptable to kiss in the office: for them, there is no harassment. For their peers, however, witnessing the affection may be unwelcome.

Harassment can be intentional or inadvertent. But if the recipient is offended or concerned, it may have occurred. In some workgroups, off-color jokes are welcome — in others they are not. Everyone has their own level of tolerance, and employers must respect these levels.

Employees should begin with an assumption that anything of a sexual nature is off-limits. As they develop connections and relationships with peers, conversations may be more relaxed, but that should only occur if all parties are agreeable.

The safest route is to be careful

Often, however, those who seem ‘OK’ with the actions, are not. They may be tolerating it just to avoid making waves. In most cases, the safest route is to leave it out. If you wouldn’t say it (or do it) to your sweet old grandma, a judge, or a spiritual leader, you shouldn’t say it at work.

Employers can help workers better understand subjectivity by asking them to consider something they’ve seen (or done) in the workplace others might consider harassment but didn’t offend them.

Now ask them to think about their teenage child’s first day of their very first job. When asked how their day went, the child reports the same situation happened to or around them.

Would the employee consider it harassment if it happened to their teen? Would they be upset if their teen was the subject of an off-color joke, or the recipient of a pat on the backside? It’s easier to understand how subjective sexual harassment is from another person’s perspective.

Leaders must create a culture free of sexual harassment

A respectful workplace is everyone’s right and responsibility. No employer should expect their workers to tolerate harassment. When employers allow harassment to occur, morale, engagement, and performance decrease.

Long-term failure to prevent sexual harassment can have dire results. At minimum, those may include losing talent to more professional, respectful companies. At worst, they may result in an EEO claim, fines and penalties, or a lawsuit. Business leaders must create a culture free of sexual harassment, for the protection of their staff and their organization.