Sexual Harassment: Should You Worry? Why or Why Not?

y R. Bruce Wright, CPCU

Recently there has been a noticeable upward “tic” in the number of questions I am asked about sexual harassment in my visits to utilities insured in this program. So perhaps it is time to revisit this topic and remind readers of the resources that can be made available for the asking if your companies are becoming more interested in thinking about this topic, designing a harassment policy, or implementing one.

The Challenge

Society today demands two apparently mutually exclusive things from employers. First, the workplace has become a place where workers bring much of their personal lives, as a central point of their existence. At the same time, however, the workplace environment is not permitted to cross a number of vaguely defined lines; if they are crossed, allegations of medical discrimination, age discrimination, sexual harassment, or other forms of unlawful conduct can be made. Employers must walk a tightrope between a friendly supportive environment and a legally prohibited one. A harassment prohibition policy is intended to help maintain that fine balance. If your organization doesn’t have one, perhaps you should ask why.

Basic definitions and facts about sexual harassment.

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
While the harasser's conduct must be unwelcome, determining if that is so is a subjective judgment, heavily reliant on the victim’s point of view.
Either the victim or the harasser may be male or female. They do not even have to be of opposite sexes for harassment to exist.
It is possible for a harassment to come from the victim's supervisor, a supervisor in another area, a non-supervisory co-worker, or even a non-employee!
The victim doesn't have to be the direct or intended target of harassment, but could be anyone affected by the offensive conduct.
Illegal sexual harassment may occur without economic injury to the victim.

The Two Primary Types of Harassment: Quid Pro Quo and Hostile Environment

Quid Pro Quo is Latin and simply means “This for that.” It is clear why this type of bargain between co-workers gets into dangerous waters if sexual behaviors are part of the currency being traded. When the people involved are in different hierarchical levels, the presumption of harassment is hard to rebut. Companies should clearly forbid such behavior.
Hostile Environment means that a workplace was sufficiently accepting of harassing behavior that it made a worker uncomfortable. How much is “sufficient” is a question for a jury; there is no where to look it up. If suggestive photos or posters, jokes or jests, pats or pinches characterize a workplace, a hostile environment case is likely to result. Even if everyone in a workspace is happy about the environment, the risk remains that a newcomer, a temp, an employee from another area, or even an outsider, such as a delivery person, could make a complaint.

So, what should you do? A few general rules of thumb can guide behavior.

As a practical matter, take the conservative approach. If conduct might be construed as harassing, it has no place at work. So, any time you are not sure whether or not your acts will be unwelcome, the best advice is to avoid such conduct.
Supervisors should take seriously, and report, any incident, or reported incident, of potential harassment, no matter how "offhand" or informal. Failure to do so could well set the stage for future allegations of a hostile environment.
If you personally are the target of any harassment or exposed to any harassing conduct, state clearly that you find the attention unwelcome. If the conduct was extreme (such as may occur in quid pro quo harassment) or if there is any subsequent occurrence of harassing conduct, report the conduct as outlined in your harassment policy.

Next Steps/Available Resources

If you are looking for resources to create an effective harassment policy or to successfully implement an existing policy, Synebar Solutions may be able to help. We can provide policy design templates for your management team to use to guide their work in developing a policy for your company. We also have training seminars on the topic available. We can either provide you with what you need to present the sessions or lead the sessions for you. Two variations of this training are available, one designed as a workshop session for management teams that are crafting a policy; the other as an informational discussion session for broader employee audiences. Both sessions cover an array of issues, including the legal basis for sexual harassment complaints, who can be a victim and who can be a harasser, what intentional acts may (or may not) be necessary to establish the basis for a complaint, and the role of economic loss for the victim. The sessions cover the two basic types of harassment (quid pro quo & hostile work environment) as well as the obligations of an employer, the elements of an effective harassment policy and action plans that support a policy. Interaction with the public is also covered. Finally, easy-to-use sample policies will be reviewed.

Some questions for you to consider.

Is it sexual harassment to use a company's electronic mail system to ask a subordinate out on a date? Why is it the company's business if two company employees choose to go out on dates over the weekend, and agree to keep their relationship out of the office? Doesn't it aid the workplace environment if a co-ed group of employees who all seem to appreciate risqué jokes has a pattern of telling those jokes to each other in the office?

If these are easy for you to answer, that's terrific! If not, you may be interested to learn that our materials offer answers to these and many other questions, including how and why you need to consider non-employees as both potential harassers and victims, as mentioned above. If you are interested in further information just use the “EMAIL” button below.