Everything You Ever Wanted to Know About Sexual Harassment

Transcription

1 Everything You Ever Wanted to Know About Sexual Harassment Making your job easier! This presentation on sexual harassment is designed for extensive participant involvement, because employees learn better and retain more information when they are involved in training sessions. You may customize the session for more or less involvement to suit your group. We have included a customizable Quiz with Answer Sheet file as well as a printable Certificate of Completion file on the CD to give youall the tools you need for a complete training session. In this training session, we will cover everything you ever wanted to know about sexual harassment in the workplace but were afraid to ask. In fact, the session is designed as an interactive discussion on the subject, so don t be afraid to ask. Throughout the session, there will be plenty of opportunities for your participation in the discussion. We ll start by finding out what we already know and working from there. The rest of the session will cover applicable laws, detail what is and isn t harassment, find out who s affected, and define the responsibilities of everyone in the workplace to prevent sexual harassment. 1

2 What Do You Know About Sexual Harassment? There are no specific laws addressing sexual harassment, but there have been successful lawsuits. True or False As long as people keep their hands to themselves, no one can complain of harassment. True or False Interactive Exercise: Pre-Quiz We ll start with a quiz to get participants involved immediately. Ask for a show of hands for those who think a statement is true and one for those who think it is false. [All the statements are false.] Interactive Exercise: Pre-Quiz Discussion You may also want to generate a bit of discussion on each point to assess participants knowledge of sexual harassment. For example, if they know that there are laws, ask them what they are. If they understand that sexual harassment is more than touching, find out what else they think it is. If they realize that harassment incidents affect many people, ask them to explain how. Let s get the discussion going right away and see how much you know about sexual harassment. The answer to the first statement is false, because there are specific laws governing sexual harassment in the workplace, which we will go over. There are many forms of sexual harassment that do not include physical contact. We will discuss them in detail today. 2

3 What Do You Know About Sexual Harassment? (cont.) Cases of sexual harassment affect only those involved; everyone else can carry on business as usual. True or False Employers are the only ones responsible for preventing harassment. True or False Interactive Exercise: Pre-Quiz (cont.) [All the statements are false.] Interactive Exercise: Pre-Quiz Discussion (cont.) You may also want to generate a bit of discussion on each point to assess participants knowledge of sexual harassment. For example, if they realize that harassment incidents affect many people, ask them to explain how. If they understand that employers aren t the only ones responsible for preventing sexual harassment, ask them who is, and what their responsibilities are. Unfortunately, incidents of sexual harassment have far-reaching effects on many individuals. That s why we must do all we can to prevent them in our workplace. Employers are responsible for creating, communicating, and enforcing an effective sexual harassment policy, but employees have responsibilities, too. We ll discuss them later. By the end of our session today, in fact, you will have detailed answers to all these issues. 3

4 Sexual Harassment And the Law Title VII The courts Equal Employment Opportunity Commission (EEOC) This session concentrates on federal sexual harassment laws. Many states also have sexual harassment regulations. You may want to find out what your state s requirements are and discuss them here. Let s find out what laws govern sexual harassment. Title VII of the Civil Rights Act generally prohibits employers with 15 or more employees from discrimination in employment based on race, color, religion, sex, or national origin. Courts have interpreted sexual harassment as a form of sex discrimination that is prohibited by Title VII. The U.S. Equal Employment Opportunity Commission (EEOC) has also issued a comprehensive definition of sexual harassment, which we ll examine in depth on the next slide. 4

5 Sexual Harassment And the Law (cont.) EEOC defines sexual harassment as sexual conduct that is: Unwelcome Harmful Illegal Interactive Exercise: Defining Harassment Before bringing up the bullet point on the slide, you may want to engage participants in a group discussion to come up with a definition of sexual harassment. According to EEOC, sexual harassment is sexual conduct that is unwelcome. For example: Sexual advances Requests for sexual favors Verbal or physical conduct of a sexual nature Displays of sexually explicit or suggestive materials Furthermore, all forms of sexual harassment are harmful to both the physical and emotional health of victims and witnesses, thereby negatively affecting the workplace atmosphere in general. The bottom line is that all forms of sexual harassment are illegal. 5

6 Is this Sexual Harassment? Yes or No A female employee wears miniskirts A female supervisor makes frequent comments about a male employee s physique A male supervisor makes frequent comments about a male employee s physique Two co-workers forward each other off-color jokes they received in s Interactive Exercise: You Be the Judge Before discussing the two main forms of sexual harassment, involve participants by showing them each statement on the slide and asking them to decide whether the action is harassment. We have included a Worksheet file of these two slides on the CD. You may want to print and hand out copies to participants. You could either have them work on it alone for five minutes, break them up into small groups, or go over it together as a group. In a minute, we ll get into a more specific definition of sexual harassment. Let s take a moment now to play judge and decide whether these actions are harassment. No. Employees must abide by the company dress code; if miniskirts are allowed, employees have the right to wear them without fear of being harassed. Yes. Male employees can be the victims of sexual harassment and have the same protections under harassment laws. Yes. Sexual harassment can happen between people of the same gender. The key is not sexuality (i.e., that the act is motivated by homosexuality), but that the act is sexual in nature. No. This exchange is not unwelcome. If one co-worker complains of sexual harassment because of receiving offensive jokes, the claim probably won t stand, because the coworker has participated by also sending off-color jokes and not indicating that they were offensive. If the employee s situation changes and he or she decides to no longer go along with the exchange, he or she needs to communicate that to the co-worker and the coworker needs to stop sending the jokes. 6

7 Is This Sexual Harassment? Yes or No (cont.) An employee asks a co-worker out Two co-workers develop a personal relationship An employee posts a swimsuit calendar in his work area A good customer makes provocative comments to employees Interactive Exercise: You Be the Judge (cont.) After going through this list, point out that it s important to know what isn t sexual harassment so that people can feel comfortable in the workplace and not become paranoid about how they interact with one another. No. Asking a co-worker out is not considered sexual harassment. It s important to take no for an answer, however. Repeated overtures can turn into harassment. No. Employees can and do form relationships with co-workers. As long as the relationship is consensual, it is not considered sexual harassment. Remember that only unwelcome conduct of a sexual nature is unlawful. Yes. Under the EEOC definition, posting a swimsuit calendar qualifies as a visual display of explicit or suggestive materials. Yes. Customers or clients can be guilty of sexual harassment. 7

8 This Is Sexual Harassment Economic Harassment Quid pro quo Automatic liability Tangible employment action must actually occur Remember that this presentation deals only with federal guidelines and definitions. In some cases, state regulations may be stricter than federal regulations. Let s go into a more detailed definition of sexual harassment. There are two main forms, which we ll go over on the next two slides. The first form is called economic harassment, which is a phrase that has evolved from the older term, quid pro quo, or this for that. Essentially, economic harassment is unlawful harassment that results in a tangible employment action to the victim. A tangible employment action involves monetary loss for the employee or significant changes in workload or assignment should he or she refuse a sexual request. Economic harassment focuses on the harm to the victim rather than the conduct of the harasser. In cases of economic harassment, employers are automatically liable when a supervisor takes tangible employment action against an employee. The employer is automatically liable only if the threat of job detriment or promise of job benefit actually results in an employment action such as termination, promotion, demotion, or reassignment to a considerably different position. 8

9 This Is Sexual Harassment Hostile Work Environment Severe or pervasive conduct (or both) Intimidating, hostile, or offensive displays Automatic liability for supervisor s tangible employment action Check your state s laws for employer liability in cases of a hostile work environment. Some state regulations may be stricter than federal regulations. The definition of a hostile work environment covers severe or pervasive conduct (or both). It also includes items displayed in the workplace that unreasonably interfere with job performance or that create an intimidating, hostile, or offensive work environment. A hostile environment includes: Sexually offensive photos, drawings, calendars, graffiti, or other objects Sexually offensive language, jokes, gestures, or comments An employer will be automatically held liable for a supervisor s actions that create a hostile work environment and that result in a tangible employment action. 9

10 This Is Sexual Harassment Hostile Work Environment (cont.) If no tangible employment action, then employers might avoid liability Nonsupervisors, including co-workers, customers, and clients Check your state s laws for employer liability in cases of a hostile work environment. Some state regulations may be stricter than federal regulations. If no tangible employment action is taken against the employee by a supervisor, the employer might avoid liability if the employer can show that it made a reasonable effort to prevent and immediately correct workplace harassment such as by implementing, communicating, and enforcing a sexual harassment policy and that an employee unreasonably failed to make a complaint under the available policy. Employers may also be liable for hostile work environments created by nonsupervisors, such as co-workers or customers, if they knew or should have known of the harassment and did not immediately address it. For example, when an employee complains to a supervisor about a co-worker s posting of a girlie or pinup calendar, the employer is effectively put on notice of the harassment and must immediately address and correct the situation. 10

11 Who s Affected by Sexual Harassment? Those who commit Employees at any level Clients or customers Members of the same sex Interactive Exercise: Who s Affected? Before bringing up the bullet points, ask participants to list everyone they think can commit sexual harassment. Employees at all levels of the company can commit sexual harassment. Therefore, unlawful sexual harassment can travel up, down, and sideways in the organization. Clients or customers of an employer can also commit sexual harassment against the employer s employees. For example, a restaurant customer can commit an act or repeated acts of sexual harassment against an employer s waitress. Although acts of sexual harassment must be grounded in discrimination that is based on sex, the sex of the offender and victim is not controlling. Therefore, males can commit sexual harassment against other males, and females can commit sexual harassment against other females. Therefore, the key is not sexuality (i.e., that the act is motivated by homosexuality), but that the act is sexual in nature. Ordinary socializing in the workplace, such as male-on-male horseplay or intersexual flirtation, however, will generally not support a finding of same-sex harassment. Instead, the harassment must be of a severely hostile or abusive nature. 11

12 Who s Affected by Sexual Harassment? (cont.) Those who experience Direct targets Bystanders and witnesses Interactive Exercise: Who s Affected? (cont.) Before bringing up the bullet points, ask participants to list everyone they think can experience sexual harassment. An employee may experience sexual harassment as an intended or direct target. For example, an employee who is constantly subjected to a co-worker s sexual advances is a direct target and, therefore, a victim of these unlawful acts. However, some courts have held that bystanders, or mere witnesses to unlawful acts of sexual harassment, may also be victims. As a result, an employee who bears witness to sexual harassment that is directed toward another employee may also find protection under the law. 12

13 Preventing Sexual Harassment Management Responsibility Management needs to create, communicate, and enforce a policy that: Provides a clear statement of the company s position against sexual harassment Promotes compliance and prevention by defining responsibilities Protects employee rights and fosters respect for all parties Interactive Exercise: Our Company Policy At this time, introduce and review your company s sexual harassment policy. You may want to hand out copies to participants and customize the speaker s notes to highlight how your policy achieves each of the objectives listed here. Also point out how (if applicable) your policy complies with state requirements. In order to create a respectful and dignified workplace, both company management and employees have responsibilities. Management needs to compose an effective policy that establishes a complaint procedure and outlines penalties for harassers. Such a policy will: Uniformly and sensitively communicate the employer s position against sexual harassment so that everyone understands what is and is not acceptable workplace behavior. Promote compliance and prevention by defining the responsibilities of managers and employees in preventing sexual harassment and in responding quickly and thoroughly to any complaints. Protect employee rights by fostering and maintaining a respectful and dignified work environment by preserving employee confidentiality whenever possible and by communicating and enforcing a policy of no retaliation against any employee who reports sexual harassment. 13

14 Preventing Sexual Harassment Employee Responsibility Know and comply with company policy Address incidents of sexual harassment immediately Cooperate with investigations Direct the discussion of company policy to employee responsibility. Encourage questions that participants might have regarding clarification of their responsibilities under the policy. Every employee must know and comply with our company policy. Be sure to review it periodically so that it s always fresh. Are there any questions about your responsibilities under our policy? More specifically, it s very important to address incidents of sexual harassment immediately. You must report any incident of harassment that reasonably offends you, whether you are the intended target or not. If you can, respond directly to harassers, letting them clearly know that their behavior bothers you. If you re too uncomfortable to address them directly, for example, if the harasser is your supervisor, then report the incident to your supervisor s manager or a human resources representative. Record the time, place, and details of the incident, including any co-workers who might have observed the incident. Cooperate with investigations, doing your part to make them run as smoothly and quickly as possible. Be as supportive as you can of co-workers. Encourage them to report the initial incident according to company policy and support them throughout the process until it is resolved to everyone s satisfaction. 14

15 What You Now Know About Sexual Harassment Title VII, the courts, and EEOC are legal entities that cover sexual harassment Sexual harassment involves more than physical conduct; it can be verbal or visual, or can be an overall hostile environment These two slides serve as a summary of the information covered in this presentation. They are the answers to the questions in the Pre-Quiz Interactive Exercise. In answer to the question of whether there are laws governing sexual harassment, we now know that Title VII addresses employment discrimination, including sexual discrimination; that the courts have upheld harassment cases; and that EEOC provides a specific definition of what constitutes sexual harassment. We now know that sexual harassment is not limited to physical contact. Visual displays, verbal comments, and an overall hostile environment also constitute harassment. 15

16 What You Now Know About Sexual Harassment (cont.) Cases of sexual harassment affect many people in the workplace, including customers, co-workers, bystanders, and witnesses Both employers and employees have responsibilities for preventing harassment in the workplace This slide continues the summary based on the Pre-Quiz. Today we learned that unfortunately, incidents of sexual harassment have far-reaching effects on many individuals. Perpetrators are not always supervisors; co-workers, customers, and clients can all harass employees. Bystanders and witnesses can also be offended by acts of sexual harassment not specifically directed at them. Employers are responsible for creating, communicating, and enforcing an effective sexual harassment policy, and employees have responsibility to know and abide by that policy, to address incidents of harassment immediately, and to cooperate with investigations. 16

17 Test What You Know What are the two main forms of sexual harassment? Under what law is sexual harassment considered to be discrimination based on gender? What agency offers a detailed formal definition of sexual harassment? We have provided this test as a Word file on the CD. You can go over the quiz on the slide only or print out copies of the test and have participants take the test first before discussing the answers. Customize the speaker s notes on the basis of the method you choose. The test questions are designed to reemphasize the main points about sexual harassment and to clear up any lingering confusion about this important subject. Let s test what we ve learned today about sexual harassment. 17

18 Test What You Know (cont.) What are the three criteria for identifying sexual harassment? Name two actions that could be considered sexual harassment and explain why. Name two actions that would not be considered sexual harassment and explain why not. 18

19 Test What You Know Answers Q: What are the two main forms of sexual harassment? A: Economic harassment and hostile environment Q: Under what law is sexual harassment considered to be discrimination based on gender? A: Title VII You can use this time to clear up any questions that participants have regarding the answers. The two main forms that sexual harassment can take are economic harassment and a hostile environment. Title VII of the Civil Rights Act generally prohibits employers with 15 or more employees from discrimination in employment based on race, color, religion, sex, or national origin. Courts have interpreted sexual harassment as a form of sex discrimination that is prohibited by Title VII. 19

20 Test What You Know Answers (cont.) Q: What agency offers a detailed formal definition of sexual harassment? A: The Equal Employment Opportunity Commission (EEOC) Q: What are the three criteria for identifying sexual harassment? Q: That the incident is unwelcome, harmful, and illegal You can use this time to clear up any questions that participants have regarding the answers. The EEOC offers a detailed definition of sexual harassment. EEOC gives three criteria for identifying sexual harassment: incidents that are unwelcome, harmful, and illegal. 20

21 Test What You Know Answers (cont.) Q: Name two actions that could be considered sexual harassment and explain why. A: Posting a swimsuit calendar or continuing to ask out a co-worker who has said no Q: Name two actions that would not be considered sexual harassment and explain why not. A: Exchanging off-color s or asking a co-worker out You can use this time to clear up any questions that participants have regarding the answers. We have included a Certificate of Completion file on the CD. You may want to distribute certificates to participants at this time. Remember to sign and date them. Any of the following actions could be considered sexual harassment: Pinning up objectionable images Continuing to ask a co-worker out after he or she has refused Making suggestive comments to a co-worker or customer of either gender Telling off- color jokes after a co-worker has expressed that he or she does not want to hear them Any of the following actions would not be considered sexual harassment: Asking a co-worker out on a date Developing a relationship with a co-worker that is mutually acceptable Telling off- color jokes with a co-worker who doesn t mind Exchanging off-color s with a co-worker who doesn t mind 21

22 Resources The U.S. Equal Employment Opportunity Commission ( Title VII ( BLR s Preventing Sexual Harassment Pocket Guide ( product= ) We have gathered additional information resources on sexual harassment. We ve placed this slide last because you may choose to use them only for your own reference, and you can wrap up the presentation with the Test What You Know Answers. If your budget allows, you may want to order copies of BLR s Preventing Sexual Harassment Pocket Guide to hand out to employees at the conclusion of the session so that they can keep it with them for handy reference. If you don t need copies for everyone, you could have a few on hand as references to keep in the HR department. The U.S. Equal Employment Opportunity Commission maintains an informative website with current news and court cases along with much reference material, including a Policy Guidance on Employer Liability under Title VII for Sexual Favoritism ( The EEOC site also includes the complete text of Title VII. BLR has put together a handy-sized pocket guide on Preventing Sexual Harassment with 40 pages of information and guidance on this important subject. 22