by Anne Litwin and Sophie Hahn
Published in Managing in the Age of Change: Essential Skills to Manage Today’s Workforce, Roger A. Ritvo, Anne Litwin, and Lee Butler, editors, Burr Ridge, Illinois: IRWIN Professional Publishing, 1995.
EXECUTIVE SUMMARY
That there is no place for sexual harassment in the workplace, or anywhere else in American life, is obvious. However, the sad truth is that in many organizations it remains an ugly fact of life. Harassment of a woman by a man or of a man by a woman, or harassment between people of the same gender is in its essence the enactment of power, whether hierarchical, based on stronger physical attributes, or both. It reduces the other to an object.
As Anne Litwin and Sophie Hahn point out, it took the harassment charges brought by Anita Hill during the Clarence Thomas Supreme Court confirmation hearings to bring harassment to light across America.
The responsible manager must be fully aware of the law and of the various levels of harassing behavior. Given the evolving nature of harassment law, managers must keep updated of changes in it as they are enacted. Litwin and Hahn also point out that if harassment is reported or observed, managers may have a most significant role to play in the investigation and resolution of alleged incidents. This may include supporting a victim, recommending or implementing punishment of a harasser, or healing the workplace in the aftermath.
Many managers shiver at the thought of having to take a proactive stance in a documented incident of harassment occurring within their purview. This is understandable. Often such incidents involve people in the workforce with whom a manager may have developed a positive work relationship. It can get messy. Yet failing to act appropriately can make the situation messier still.
Such failure continuously embeds the behavior as part of the fabric of the culture of the organization—an insidious outcome. It is in this context that becoming familiar with this chapter is a critically important dimension of the manager’s role. Managers who fail to take this matter seriously are managers who are positioning themselves to become involved in potential litigation procedures, to the detriment of both themselves and their organizations.
Despite a previous lack of attention to the widespread problem of sexual harassment in the workplace, the subject has long been an issue for many employees and has been considered an illegal form of sex discrimination for more than a decade.
The issue of sexual harassment first attracted broad public attention during the Clarence Thomas Supreme Court confirmation hearings in the fall of 1991. During those hearings, Anita Hill, an attorney and law professor who had formerly worked for Thomas, presented her allegations of sexual harassment and brought this previously hidden issue into the light. Today, all managers are expected to know about and work to combat sexual harassment.
Many organizations have policies defining and prohibiting sexual harassment. Sexual harassment is also against the law. Thus, every manager should familiarize herself or himself with the legal definition of sexual harassment and with the organization’s own definition and policies, if any.
Because managers can be held responsible for the sexual harassment of one employee by another if the manager knew or should have known about the conduct and did nothing to stop it, they should also become familiar with and implement methods for the prevention and early detection of sexual harassment. Finally, managers may have a significant role to play in the investigation and resolution of an incident of alleged sexual harassment, including supporting a victim and recommending or implementing punishment of a harasser.
This chapter serves as an introduction to the issue of sexual harassment and the definitions, rules, policies, practices, and procedures all managers should be aware of and follow.
WHAT IS SEXUAL HARASSMENT?
Sexual harassment usually falls into one of three categories: verbal, nonverbal, and physical.
- Verbal sexual harassment includes suggestive comments about dress, sexual desirability, physique, or sexual orientation; jokes about gender-specific traits; sexual propositions; and sexually related threats and insults.
- Non-verbal sexual harassment includes suggestive or insulting noises, obscene gestures, whistling, leering, and displaying obscene pictures.
- Physical sexual harassment includes touching, pinching, standing or sitting too close, intentionally brushing against someone else’s body, and coercing sexual intercourse and assault.
The Legal Definition of Sexual Harassment
The US Equal Employment Opportunity Commission (EEOC), the agency charged with enforcing federal laws against employment discrimination (sexual harassment is a form of discrimination based on sex), has defined sexual harassment as:
…unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature… when
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic achievement,
- submission to or rejection of such conduct by an individual is used as the basis for employment decisions or academic decisions affecting such individual, or
- such conduct has the purpose or effect of unreasonably interfering with an individual’s work or academic performance or creating an intimidating, hostile, or offensive working or academic environment.
As more and more sexual harassment cases are reviewed by the EEOC, state and local agencies, and the courts, the legal definition of sexual harassment may be expanded or modified. Every few years, managers should request from a local EEOC office or human rights agency or from the legal or personnel department of their organizations, the most up-to-date legal definitions of sexual harassment available.
Understanding Sexual Harassment
Sexual harassment can occur in a variety of circumstances. The vast majority of sexual harassment is done by a male supervisor toward a female subordinate. Although less common, victims can also be of the same gender as the harasser, and a man can be the victim of a female harasser.
In some instances, the harasser may not be the victim’s own supervisor, but a colleague, a client, or another supervisory employee. Under the law, even an individual who has not been the direct recipient of unwelcome sexual conduct can be a victim of sexual harassment. For example, the direct sexual harassment of one worker can create an intimidating or hostile work environment for a co-worker who is upset by the harasser’s behavior.
In general, the keys to the definition of sexual harassment are that the conduct is unwelcome and that it is of an explicitly or implicitly sexual nature.
To determine whether it would be considered sexual harassment, the severity, circumstances, and frequency of the conduct in question must be taken into account. If the conduct is severe or pervasive enough to create an environment that a “reasonable person” would find hostile or abusive, and the victim perceives the environment as hostile or abusive, then the conduct is considered sexual harassment.
For example, if a male colleague asks a female colleague for a date, in a friendly manner, this alone would not be considered sexual harassment. However, if he persists, and his behavior becomes pervasive enough to detract from her job performance, it may become sexual harassment.
Some conduct could be considered sexual harassment the first time it occurs. For example, if a male supervisor suggests even once that a female subordinate can get a raise if she provides sexual favors, and this suggestion is perceived by the female subordinate to be serious, this could be considered sexual harassment.
Conduct that is considered to be of a sexual nature is conduct that makes reference, explicitly or implicitly, to a person’s sexuality, sexual desirability, sexual organs, or other sexual attributes. More general comments about women or men, such as “Women are too emotional to be good managers,” will not be considered to be of a sexual nature, although they may be evidence of or suggest other forms of discrimination.
- Explicit conduct is obviously sexual. This would include, for example, touching sexual organs, asking a coworker to perform sexual acts, or other direct sexual conduct or requests.
- Implicit conduct is less obvious behavior that would include, for example, looks or stares that, given the context, frequency, suggested intent, or accompanying body language, are in fact sexually inappropriate leers.
In many cases, behavior that is experienced as sexual harassment might not be considered sexual under other circumstances. As such, this implicit conduct can be the most difficult form of sexual harassment to understand.
For example, one colleague may occasionally compliment other colleagues on their clothes. This conduct can be harmless if done in a neutral and straightforward manner. But if these same compliments are delivered with sexual innuendo in the giver’s tone of voice, or with a leer, or if a recipient indicates that such comments make her or him uncomfortable, and the compliments continue, then they may constitute sexual harassment. Thus, managers should always carefully evaluate the circumstances of conduct that may, when first described, seem entirely innocuous.
Managers should also take into account whether or not a power differential exists between two employees in evaluating conduct that appears innocuous. Unwelcome behavior is especially likely to be experienced as sexual harassment when one coworker has more formal or informal power than the other.
PREVENTING SEXUAL HARASSMENT
Managers can do much to create a work environment where sexual harassment is less likely to occur and where they will be able to learn about potential problems as soon as they arise. With preventive measures in place and with early warning, managers have the opportunity to address potential harassment before a situation escalates. The following are ways to create an environment in which sexual harassment will be less likely to occur.
- Continually assess the work environment for signs that a problem may exist so that corrective action can be taken. Such signs may include:
- Open displays of inappropriate material or behaviors such as pin-up calendars, common use of sexually explicit language, or the telling of lewd jokes
- Friction between the sexes as manifested by frequent complaints or grievances pitting women and men against each other
- Persistent gossip that includes whispered conversations or sexually oriented rumors
- Sudden changes in an employee’s job performance
- Distribute and post the sexual harassment policy and reporting procedure of your organization. If none exists, post the EEOC guidelines and elaborate specific conduct that is considered unacceptable.
- Educate all employees by providing sexual harassment workshops and information.
- Be an example. Show a gender-neutral attitude. Ask for feedback regularly from female and male employees about your own behavior.
- Be firm and consistent. Work for changes in others’ attitudes. Do not tolerate offensive jokes or comments from women or men. Provide frequent feedback to employees who need to adjust their conduct.
- Be personally accessible to employees and listen to their complaints.
- Offer employees more than one route for registering complaints, including routes that bypass direct supervisors, who may be the source of harassment.
- Respond quickly, fairly, and with as much confidentiality as possible to any complaint of sexual harassment.
INVESTIGATING AND RESOLVING INCIDENTS OF SEXUAL HARRASSMENT
If a manager observes sexual harassment or if sexual harassment is reported, that manager has an obligation to act. If the organization has a written policy, the policy and related procedures should be followed. Where no specific sexual harassment policy exists, a manager may follow a general grievance procedure.
How behavior or a complaint is handled sends a message about how the organization perceives sexual harassment. It sets a tone that has a lasting impact on future occurrences and complaints of sexual harassment. Some guidelines for properly conducting an investigation and resolving a complaint are described below. In most instances, managers should also seek the guidance of their personnel department when confronted with the possibility of sexual harassment.
- Interview the complaining employee, making it clear that the complaint is taken seriously. Gather the details of what happened, including when, where, and with whom. Determine whether there were witnesses and whether the complaining employee discussed the behavior with any friends or colleagues or was seen by them to be visibly upset.
- Interview the accused employee. Stay objective. Inform the accused employee that a complaint has been made against her or him and caution against any form of retaliation. It is generally not advised to reveal the name of the accuser at this point, unless she or he has agreed to be named.
- Evaluate whether the matter is minor enough to be resolved through a face-to-face discussion. If so, and if the parties are willing, bring the two individuals together to try to reach agreement on what is appropriate behavior in the future. If the complainant does not agree to this session, or if the accused denies that the events occurred, then it will be necessary to proceed with a more in-depth investigation.
- Interview all witnesses and individuals who may have first- or second-hand knowledge of the alleged conduct or of the complainant’s reaction to the conduct. Phrase questions carefully to determine what other employees know about the situation and to protect the privacy and reputations of the employees involved.
- Evaluate whether employees should be separated while the investigation is conducted. Consider whether continued day-to-day contact between the employees involved in the complaint is interfering with their ability to work, or whether the accused is able or likely to engage in intimidation or retaliation. If so, it is advisable to temporarily move the accused in order to avoid the perception of retaliation against the employee making the complaint.
- Decide whether or not sexual harassment has occurred. Weigh all the evidence. Consider the credibility of each individual. Compare the reported behavior with the definition of sexual harassment. Assess the level of seriousness of the alleged behavior. In cases where there are no first- or second-hand witnesses, the EEOC rules state that the victim’s word alone may prevail if it is sufficiently detailed and internally consistent.
- Take action. If you determine that sexual harassment has not occurred, write a detailed report explaining why. If you determine that sexual harassment has occurred, follow the organization’s disciplinary procedures. If no procedures exist, make recommendations for appropriate discipline based on the seriousness of the behavior and discuss these with the personnel department before implementation. Some examples of the range of disciplines possible are:
- Mild discipline. Manager gives a verbal reprimand followed by a written warning that is not included in the employee’s personnel file.
- Moderate discipline. Manager gives a verbal reprimand followed by written warning that is included in the employee’s personnel file. Outside counseling may also be required as a condition of continued employment, or the harasser may be transferred.
- Severe discipline. Suspension, probation, demotion, or termination.
- Support and/or provide restitution to the harassed employee. Tangible damage to the victim should be rectified. This may include invalidating poor performance reviews or delivering promotions or raises that were unjustly denied. Harassment victims should also be offered counseling to help them repair the psychological and emotional damage that is often sustained.
- Monitor the work environment to prevent retaliation against either party by co-workers or from an accused toward an accuser. It often takes some time for the interpersonal relationships among all employees to return to normal. Employees should be provided with opportunities to discuss their feelings. Information and training can help the organization or department recover from the disruption of the harassment and/or the investigation.
- Keep careful notes of all conversations and actions related to all phases of any investigation and resolution of all sexual harassment complaints.
CONCLUSION
Sexual harassment is damaging to the victims and to the workplace in general. It is also against the law. Managers can be held responsible for the sexual harassment of one employee by another if the manager knew or should have known about the conduct and did nothing to stop it.
Managers can do a lot to create work environments where sexual harassment will be less likely to occur. They have a duty to be vigilant for signs of a problem, to inform themselves and their employees, to act as role models, to be accessible to employees, to be good listeners, to be objective and consistent, and to respond quickly and with sensitivity to complaints.
If sexual harassment is reported or observed, managers may have a significant role to play in the investigation and resolution of an alleged incident, including supporting a victim, recommending or implementing punishment of a harasser, and healing the workplaces in the aftermath. It is important that managers know about the laws, policies, and procedures governing sexual harassment so they can fulfill their responsibilities, protect their organizations from costly legal action, and provide a respectful work environment for all.