As employers strive to create diverse workforces, they need to think beyond just attracting employees from varied backgrounds. It’s just as important to think about how to retain a diverse group. Taking steps to prevent sexual harassment is one way to make sure talented and productive employees don’t flee work environments they find uncomfortable, even unlawful.
Recognizing sexual harassment is the first step. Gone are the days when a typical case involved a male boss chasing a female secretary around the office, or workers in a male-dominated workplace posting a calendar displaying risqué pictures in the breakroom. The Equal Employment Opportunity Commission, tasked with enforcing antiharassment law, and courts now recognize many more situations that fit the definition of sexual harassment. So employers need to take concrete steps to reduce their risk regarding subtle as well as blatant harassment.
The definition of sexual harassment and the risks harassment pose were among the topics Boris Sorsher, an attorney with the Fisher & Phillips law firm in Irvine, California, covered in a Business and Legal Resources webinar titled “Sexism in the Workplace: Reduce Your Risk for Costly Harassment, Hostile Work Environment, and Unequal Pay Claims.”
Probably the most egregious form of sexual harassment is quid pro quo harassment, Sorsher said. Latin for “this for that,” quid pro quo harassment involves withholding an employment benefit until receipt of a sexual favor, giving extra benefits in exchange for sexual favors, or basing an employment decision on an employee’s rejection of sexually related conduct.
Quid pro quo harassment is probably the easiest form of harassment for an employee to prove, so employers need strong, clear policies that they won’t tolerate harassment, Sorsher said.
Another form of harassment involves the creation of a hostile work environment that is severe, pervasive, and creates intolerable working conditions. Hostile environment “is a sexual harassment claim that kind of sneaks up on employers sometimes because it’s not like there’s a sexual favor that was demanded, which is really quid pro quo harassment, or that there was really egregious conduct, but it’s more of a gradual situation or an environment that develops in a workplace,” Sorsher said.
Physical, verbal risks
An environment can become hostile as a result of both physical and verbal conduct, and both types present gray areas, Sorsher said. Kissing and groping should never be tolerated in the workplace, but sometimes employees may want to give each other a hug or a pat on the back without intending the behavior to be sexual.
“And in some situations that might be acceptable and in others it could be very problematic,” Sorsher said. “And the thing that we have to keep in mind is that we probably want to discourage most physical conduct in the workplace because the impact of a specific physical gesture is really in the eye of the beholder when it comes to the courts.”
Verbal conduct presents another risk. An occasional sexual joke may seem harmless but still should be discouraged. “A good rule of thumb with that is if you’re uncomfortable telling that joke to your grandmother or if you’re uncomfortable telling that joke at dinner where you’re meeting your fiance’s parents, don’t do it,” Sorsher said.
In addition to refraining from sexual jokes and comments, managers and employees should be trained to avoid questions about a coworker’s sex life. “Harassment is in the eye of the beholder, and it’s in the eye of, really, the victim according to the courts,” Sorsher said. “So despite the fact that you may have meant your question to be innocuous and to not really harm anyone or not really upset anyone, that’s going to be irrelevant when the claim is litigated in court.”
Stopping harassment
Management is essential to protecting the company, Sorsher said, adding that low- to mid-level managers are the most important since they’re the ones who have direct and daily interaction with employees. Questions managers should ask themselves include:
- Do I make remarks that could offend anyone?
- Do my co-employees make such remarks?
- Are any offensive publications, calendars, etc. located in the workplace?
- Do I and all of my co-employees treat each other as we would want to be treated?
Sorsher advises getting help from an attorney in drafting the details of an antiharassment policy, but a couple of things should be in all policies. The policy should state that the employer won’t tolerate any harassment and discrimination, and allegations of harassment will be promptly investigated in as confidential a manner as possible. The policy also should spell out the procedure for making complaints.
Periodic training also is a must, Sorsher said. All employees including managers should be trained about what constitutes a violation of the employer’s policy, a record should be kept documenting when training took place and who attended, and the training should be conducted at least annually.
Nice article, one correction: When discussing verbal risks, the sentence “An occasional sexual joke may seem harmless but still should be discouraged” needs one word changed, “An occasional sexual joke may seem harmless but still MUST be discouraged.”