The difference between a well-intentioned compliment and troublesome allegations is in the fear 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.
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.
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:
In 1998, the Supreme Court recognized that Title VII also prohibits “same sex” sexual harassment regardless of sexual orientation.
Some common examples in of conduct that might be deemed harassment found in Sexual Harassment published by Fisher & Phillips Ltd., attorneys at law, include:
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.
Be advised, a public entity should take a “notice” of sexual harassment seriously and consult legal advice. The entity would be unwise (without attorney advice) to dismiss the complaint on the basis that its entity 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.
Adopt, communicate, and consistently enforce a written policy prohibiting all forms of harassment. This policy should:
Use the EEOC definition of harassment; or use plainer language and include examples of various kinds of harassment. It is wise to include a prohibition of harassment based on other criteria, such as religion, age, race, or disability (covered by Title VII).
Communicate a “zero-tolerance” stance to harassment.
Avoid having employees assume that a manager’s actions are implicitly approved or known by the nonprofit.
All employees are expected to report any harassment that they observe, have heard about, or believe may be occurring.
The level of discipline will depend on the severity and frequency of the harassment. Choices range from documented verbal counseling or a written warning to probation or even termination. In any harassment investigation, it is wise to seek legal advice.
The policy should require all individuals who believe they have been the victims of harassment, or who have observed or heard about harassment, to report it.
The complaint can be handled in a discreet manner and information can be kept on a need-to-know basis; it can’t be held strictly confidential if investigation and discipline are to follow.
Encourage employees to report harassment to any supervisor, as well as to specific, named, male and female managers. List names and phone numbers of specific persons to contact when the employee feels the complaint was not adequately addressed. Provide a hot-line number or name of person to contact at headquarters office, if the nonprofit is a large multi-location entity with centralized headquarters offices.
Specifically assure that employees who, in good faith, report what they believe to be harassment, or who cooperate in any investigation, will not suffer any retaliation. The policy should also state that any employee who believes he or she has been the victim of retaliation for reporting harassment should immediately report the retaliatory acts and include a name and phone number.
Require employees to acknowledge receipt of the policy and agree to abide by its terms.
Provide separate acknowledgment forms for supervisors (who can be held personally liable for engaging in sexual harassment) and non-supervisory employees to sign after reading the policy.
Write a harassment policy that:
Work with the human resources or training department to develop in-service workshops that elaborate on the policy. Make the workshops available to new hires, new supervisors on a regular basis, after the initial training of all senior management and employees.
Model Policy: Unlawful Workplace Harassment Prevention Plan, North Carolina Office of State Personnel
Preventing Sexual Harassment in the Workplace, © 2004 NOLO Law for All
Sexual Harassment Prevention online learning program, NYS Governor’s Office of Employee Relations
Solving the Puzzle of Workplace Harassment, A Training Course for DHHS Employees, NC Department of Health and Human Services