Fact Sheet

Preventing Harassment/Hostile Environment

The difference between a well-intentioned compliment and troublesome allegations is in the ear of the recipient. Sexual harassment has as much to do with intent shown through body language, facial expression, proximity of the one person to the other, tone of voice, and pacing of delivery as the actual words. What separates the one workplace environment with written “no harassment” policies that are updated annually and the rest is proper education of management and staff members on how to enforce these policies effectively. Recent studies showed that the employees most likely to be involved in sexual harassment are the ones who received the least amount of prevention training.

Title VII of the Civil Rights Act of 1964

In 1986 that the U.S. Supreme Court first held that Title VII of the Civil Rights Act of 1964 prohibition of sex discrimination included sexual harassment. The Supreme Court identified two types of sexual harassment: quid pro quo (“this for that”) and hostile working environment.

EEOC Definition of Sexual Harassment

The Equal Opportunity Employment Commission, which is charged with enforcing the law, defines sexual harassment as: “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when:

submission to such conduct is made either implicitly or explicitly a term or condition of employment;
submission to, or rejection of, such conduct by an individual is used as the basis for employment decisions affecting such individual; or
such conduct has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

In 1998, the Supreme Court recognized that Title VII also prohibits “same sex” sexual harassment regardless of sexual orientation.

Possible Harassment Conduct

Some common examples in of conduct that might be deemed harassment found in Sexual Harassment published by Fisher & Phillips Ltd., attorneys at law, include:

Physical actions:

giving a neck or shoulder massage;
touching a person’s body, hair, or clothing;
hugging, kissing, or patting another;
standing close to or brushing up against a person;
touching or rubbing oneself in a private area or with sexual overtones near another person;
touching, leaning over, cornering, or pinching someone; or
snapping a woman’s bra strap.

Verbal actions:

referring to another as a “girl,” “doll,” “babe,” “hunk,” or “honey”;
whistling or making cat-calls at another;
making comments about a person’s body, clothes, looks, anatomy, or manner of walking;
turning work discussions into sexual topics;
telling sexual jokes or stories;
discussing one’s love life;
asking about sexual fantasies, preferences, or history;
repeatedly asking a person for a date who clearly is not interested;
making kissing sounds, howling, or smacking lips; or
telling lies or spreading rumors about a person’s sex life.

Non-Verbal actions:

looking a person up and down;
staring at someone;
physically blocking a person’s path;
making sexual gestures with one’s tongue or hands or other body movements;
following a person around;
giving unwanted personal gifts;
displaying sexually-suggestive visuals (calendars, pictures, comics, food displays);
making facial expressions such as winking, throwing kisses, licking lips; or
requiring an employee to wear provocative clothing.

These actions and others constitute sexual harassment depending on their severity, frequency and whether or not they were unwelcome by the recipient. The action must be “welcomed” per the U.S. Supreme Court from the perspective of the victim and a reasonable person in the victim’s situation. The proper inquiry focuses on the recipient’s response to the specific sexual advance(s) at issue.

Indications of “unwelcomeness”

the staff member did not solicit or incite the sexual advance;
the staff member regarded the advance as undesirable or offensive;
the staff member grimaced, frowned, or otherwise exhibited disagreement or resistance to the advance;
the staff member turned away or pretended not to hear the sexual comments;
the staff member pulled away, backed up, or attempted to avoid the perpetrator's touch; or
the staff member immediately complained to management about the incident, or complained within a reasonable period under the circumstances.

Taking Notice

Be advised, a nonprofit organization should take a “notice” of sexual harassment seriously and consult legal advice. The nonprofit would be unwise (without attorney advice) to dismiss the complaint on the basis that its organization has too few employees to be covered by any law (local, state, or federal) or because it deems it has no employer-employee relationship with the complainant.

There are two kinds of notice: “actual notice” and “constructive notice.” Actual notice happens via an employee complaint or via observation by the nonprofit’s supervisors that harassment is occurring. Constructive notice is when the facts or circumstances are such (i.e., loud, obnoxious employees who use profanity, vulgarity or sexually explicit terms) that any reasonable person would or should have known that harassment was occurring.