Sexual Harassment in the Work Place
It is well known sexual harassment in the workplace is unlawful. However, this rule is easier to state than apply.
As human beings, we thrive on social interaction and relationships, which naturally include sexual attraction, communication and conduct. This personal interaction occurs in many settings, including the workplace. Healthy communication can lead to a productive and rewarding work environment. But conduct that becomes intimidating or offensive is likely to be destructive and unsatisfactory. Because of our differences in values, sensibilities and tolerances, it may be difficult to discern between invited and acceptable interaction, and unwelcome or offensive conduct of a sexual nature.
Not all conduct of a sexual nature in the workplace is prohibited. Sexual harassment occurs only with unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment. The harasser can be a supervisor, a coworker, or someone outside the employment setting, such as a client or customer.
There are two types of sexual harassment. “Quid pro quo” sexual harassment occurs when submission or rejection of unwelcome sexual advances is used as the basis for employment decisions. “Hostile workplace” sexual harassment may be more subtle. Simple teasing, offhand comments, or isolated incidents that are not very serious, do not create a hostile workplace. Similarly, petty slights suffered by a hypersensitive person are not enough. A hostile workplace occurs when unwelcome sexual conduct becomes sufficiently severe or pervasive so as to alter the conditions of the victim’s employment or create an abusive working environment.
In deciding whether harassment is sufficiently severe or pervasive to create a hostile environment, the harasser’s conduct must be evaluated not just through the eyes of the victim, but also from the objective standpoint of a “reasonable person.” Whether sexual advances are determined to be welcome or unwelcome, and whether the unwelcome sexual conduct has become sufficiently serious as to affect employment, is based on the totality of facts and circumstances. This may include whether the conduct was verbal or physical, the frequency and severity of the conduct, whether the conduct involved a supervisor, whether others joined in perpetrating the harassment, whether harassment was directed at more than one individual, and whether the victim suffered physical or emotional harm. These determinations often are made only after a problem has already arisen. An employer can take preventive measures to avoid sexual harassment problems before they arise. These steps include affirmatively raising and expressing strong disapproval of sexual harassment in the workplace, and educating and sensitizing all employees as to what type of conduct will not be tolerated.
An employer can establish procedures for an employee to raise issues regarding unwelcome sexual conduct, and for investigation of such complaints. An employer should act promptly on any sexual harassment allegation, and impose appropriate sanctions for any sexual harassment that is found to have occurred.
In the end, sexual harassment in the workplace is as much a human issue as a legal issue. All employees must recognize the desires of others to enjoy a healthy and active work environment, which may include communication and conduct of a sexual nature. At the same time, employees engaging in such conduct must honor the right of others to be reasonably free of unwelcome or offensive sexual conduct. Key to a healthy and productive work environment is educating all employees, and seeking to strike a delicate balance between what is allowed and not allowed. Jim has practiced law for more than 30 years and is a member of Bliss, Wilkens and Clayton, serving clients in Arizona and Alaska.