The issue of sexual harassment is one symptom of a larger change that is taking place in American society, and in other societies around the world. Traditional views of gender and sexuality are changing, and we are, as a group, struggling to find new ones. Part of the reason for the conflict over sexual harassment is that people are at odds about how they think men and women should be treated in relation to each other. However, changes in views of appropriate behavior for women and men should not surprise us. Scholars have shown that conceptions of sexuality and of relations between the sexes are constantly changing. Perhaps the reason that the changes seem so dramatic and significant to us now is that we are all aware of them due to the effects of mass media. Or perhaps such changes always seem dramatic to those undergoing them. There are many laws being formed to prevent people engaging in such behavior and by far they are proved to be successful remedies. While it is true that there is still much controversy surrounding sexual harassment, areas of agreement are developing. For example, nearly everyone now agrees that quid pro quo harassment is wrong and should be illegal, though there may be disagreement about how it should be conceived under the law.
“The term sexual harassment was coined in the 1970s by feminist activists, and their conception of sexual harassment was sociocultural” (Crouch 31: 2001). Before the 1970s, the expression “sexual harassment” was not in use; however, behavior of the sort that would later be labeled sexual harassment existed. Evidence for the existence of this behavior is found in documents, narratives, articles, and books about women and work, as well as in legal records. Some scholars have begun examining historical materials for instances of the sorts of behaviors that are now being called sexually harassing, though there is a great deal of work still to be done in this area.
Today in U.S., women working for wages as domestic servants, factory workers, or shop girls are suspected of being sexually disgraceful. Because of the reputation attributed to working women, if one of them became pregnant by a supervisor or master, her loose morals are blamed, and coercion is not typically suspected. In seventeenth-century America, this used to be a common practice. It might be indicating the coercive activity, since indentured servants were largely under the control of their employers as they were unable to marry or become pregnant or leave their employment without their employer’s permission. According to some conceptions of sexual harassment, the fact that the servant was so dependent on her employer is sufficient to make the employer’s behavior sexual harassment. The African American women were also the victims of sexual harassment.
“Sexual harassment is best described as unsolicited nonreciprocal male behavior that asserts a woman’s sex role over her function as a worker. It can be any or all of the following: staring at, commenting upon, or touching a woman’s body; requests for acquiescence in sexual behavior; repeated nonreciprocated propositions for dates; demands for sexual intercourse; and rape. These forms of male behavior frequently rely on superior male status in the culture, sheer numbers, or the threat of higher rank at work to exact compliance or levy penalties for refusal” (Crouch 32: 2001).
Although sexual harassment has been around for a long time, it was only in 1986 that the U.S. Supreme Court held that sexual harassment could be an illegal form of sex discrimination. It was not until 1991, when law professor Anita Hill accused Supreme Court nominee Clarence Thomas of sexual harassment, that the issue became front-page news. The recognition that sexual harassment is a wrong that the law should remedy is thus very recent (Stein: 1999).
From further few sources, it has been found that, “Sexual harassment is a form of sex discrimination which is a violation of Title VII of the Civil Rights Act of 1964. The EEOC’s (Equal Employment Opportunity Commission) guidelines define two types of sexual harassment: ‘quid pro quo’ and ‘hostile environment’ (Stein 5: 1999). As the sentence explains, the EEOC recognizes two types of sexual harassment as illegal: ‘quid pro quo’ harassment and ‘hostile environment’ harassment.
The first, called ‘quid pro quo’ harassment, involves situations in which a person in a position of power (like a supervisor) demands sexual favors in exchange for a benefit or threatens the victim with some type of retaliation if the victim does not comply. For example, if a supervisor demands sexual favors in exchange for a promotion, that is quid pro quo sexual harassment. Similarly, if he threatens a worker by telling her that he will fire her if she does not comply with his sexual demands, that is also illegal quid pro quo harassment.
The second type of sexual harassment, called hostile environment harassment, involves situations in which a person is subjected to sexualized comments or behavior that is so severe or pervasive that it creates an abusive environment. Most of the cases of sexual harassment that have been reported in the news fit this model. These cases may involve making sexually charged remarks to the victim, displaying pornography to the victim, groping or inappropriate touching, and sometimes even rape.
There is some disagreement, however, among courts and commentators about how to decide whether a given environment is bad enough to be considered illegal. Some courts and commentators argue that the question should be whether the environment is hostile when viewed from the perspective of a reasonable person. Others argue that, because women and men often view sexualized conduct differently, the issue should be whether a reasonable woman would judge the environment to be hostile or abusive.
Federal Law & Employer Liability
For the most part, sexual harassment is considered to be a civil, rather than a criminal, wrong. That means that victims of sexual harassment are entitled to bring lawsuits and receive money damages and court orders to compensate them for the harm they have suffered; the perpetrators of sexual harassment, however, do not go to jail because they engaged in harassment. The behavior that constitutes sexual harassment may also be a crime for which the perpetrator can be punished; for example, if a supervisor rapes a subordinate at the workplace, this constitutes both the civil wrong of sexual harassment and the crime of rape. On the other hand, if a supervisor constantly makes sexual advances or sexually derogatory comments to a subordinate, that is sexual harassment, but it is not a crime.
Furthermore, when a victim succeeds in a sexual harassment lawsuit, it is generally the employer or school that pays the damages, rather than the individual perpetrator. The federal statutes that prohibit sex discrimination in employment and education make the employer or the school financially responsible for the actions of their agents.
In 1979 a subcommittee of the United States House of Representatives asked the Merit Systems Protection Board (MSPB), the agency that oversees federal workers, to conduct a study of sexual harassment in the federal workplace. The MSPB sent surveys to over 23,000 federal employees inquiring about their experiences with sexual harassment. The results of the MSPB’s survey were published in 1981 (Document 9). In 1988 and again in 1995, the MSPB updated its study (Documents 10, 11). These later studies found increased awareness of the problem of sexual harassment in the workplace; however, there was no decrease in the percentage of people who reported being sexually harassed (Achampong: 1999).
The summary of the study conducted by MSPB is indicated by the following points which further include statistics (Achampong: 1999).
· Both men and women Federal workers generally agree that uninvited behaviors of a sexual nature constitute sexual harassment.
· The incidence rate of sexual harassment in the Federal workforce is widespread, 42% of all female employees and 15% of all male employees reported being sexually harassed.
· Many sexual harassment incidents occur repeatedly and are of relatively long duration.
· The majority of Federal employees who had worked elsewhere feel sexual harassment is no worse in the Federal workplace than in state and local governments or in the private sector.
· Sexual harassment is widely distributed among women and men of various backgrounds, positions and locations; however, individuals with certain personal and organizational characteristics are more likely to be sexually harassed than others.
· The characteristics of harassers differ for women and men victims–for example, women report almost always being harassed by a man, whereas men report usually being harassed by a woman.
· Many harassers are reported to have bothered more than one victim at work.
· Few employees report having been accused of sexually harassing others.
· Those who are sexually harassed by supervisors and those who experience the more severe forms of sexual harassment are more likely than other victims to foresee penalties or possible benefits from the sexual harassment.
· A number of informal actions were found by victims to be effective in stopping sexual harassment, particularly the most direct and assertive responses.
· A number of informal actions were found by victims to be effective in stopping sexual harassment, particularly the most direct and assertive responses.
· Few victims pursue formal remedies, but many who do find them helpful.
· The impact and cost of sexual harassment in dollars to the Federal Government is sizeable–an estimated minimum of $189 million over the 2-year period covered by the study.
· Although their experiences do not change the careers and work situations of most victims, a sizeable number of women and men do leave their jobs or suffer adverse consequences.
· Victims are more likely to think the sexual harassment negatively affected their personal well-being or morale than their work performance or that of their immediate work group.
· Victims and supervisors are generally unaware of available formal remedies and are skeptical about their effectiveness.
· Assertive informal actions are thought to be the most effective way employees can make others stop bothering them sexually.
· Most victims and supervisors think there is much management can do to reduce sexual harassment.
Victims of Sexual Harassment: To determine who is sexually harassed and whether certain personal and organizational factors contributed to the likelihood of harassment, we looked at a number of demographic variables, based on these factors, we found that the typical men and women who are likely to be harassed are young, not married, higher educated, members of a minority, hold trainee positions, hold non-traditional positions, have an immediate supervisor of the opposite sex.
Perpetrators of Sexual Harassment: We found that most women reported that their harassers were male and that most men indicated that their harassers were female. However, men were far more likely than women to report being harassed by someone of their same sex.
Most harassers of women and men reportedly acted alone rather than in concert with another person. However, most women identified their harasser as being older than they, whereas men usually indicated that their harasser was usually younger than they. Although both women and men reported that their harasser was usually married, men were more likely to indicate that their harasser was divorced or single. Most victims in general reported being harassed by someone of their same race or ethnic background, although minority women were more likely to report that their harasser was of a different race or ethnicity.
One surprising finding was that women and men reported being harassed by fellow employees more often than by supervisors. This finding was surprising in that, before the study, most sexual harassment was thought to be perpetrated by the more powerful supervisors against their more vulnerable employees. However, a sizeable number of women also reported being harassed by supervisors. Thus, supervisors were found to be responsible for a number of sexual harassment incidents, although not the principle cause of the problem.
Another major finding was that many women and men reported that their harasser had also bothered others at work. This somewhat negates the view that sexual harassment is principally a matter of isolated instances of personal sexual attraction. Thus it appears that some individuals are more likely to harass others and that sexual harassment is not necessarily normal interaction among men and women in the job, or that all men and women engage in it as has been intimated by some.
1 in every 3 women employed by the Federal Government reported having been subjected to unwanted sexual remarks, 1 in 4 had been deliberately touched or cornered, 1 in 10 had been pressured for sexual favors, and 1 in 100 had faced actual or attempted rape or sexual assault. Since respondents were allowed to report more than one kind of behavior, many are counted more than once in these figures (Achampong: 1999).
Developing A Sexual Harassment Policy
A core set of elements is essential to a good sexual harassment policy. These can be combined into the following three areas:
· A strongly-worded “zero tolerance” statement on sexual harassment from senior management, combined with specific definitions of what type of behavior constitutes sexual harassment;
· An effective and enforced procedure in place to handle sexual harassment complaints and impose sanctions against offenders; and
A training program to educate employees in the prevention of sexual harassment and how to deal with it if it occurs.
Zero Tolerance Stand: Prevention of sexual harassment in an organization starts with a strong commitment from the top to a “zero tolerance” stand on sexual harassment. The policy must be clearly written and distributed to each and every employee. Sexual harassment must be defined in two ways:
· In terms of the legal basis for protection under Title VII as a recognized form of sex discrimination, plus any applicable state statues that complement federal laws and procedures, and
· Identification of specifically prohibited behavior, which must be outlined in a manner that can be understood by all levels of employees, and preferably backed up with concrete examples.
The listing of examples is crucial because so many types of behavior can fall into a gray area in terms of whether or not they are appropriate. Employees need to be made aware that some behavior which they may view as innocent social or socio-sexual interactions (i.e., certain forms of touching, sexual jokes, and innuendos) is inappropriate when done at work (Minor and Davis: 1998). An employer can demonstrate its commitment from the top by including the sexual harassment policy as part of the official employee handbook, “by having managers and supervisors discuss the policy with new employees and attend training sessions on sexual harassment with employees, and having senior managers serve as models for appropriate behavior in the workplace at all times” (Raphan and Heerman 7:1997). Additionally, an organization can stress its commitment by publishing information relating to sexual harassment, with a reminder of its own existing zero to lerance position. The key is that the policy governing sexual harassment should be made an integral part of the organization’s key values and culture.
Handling Complaints and Investigations: A complete sexual harassment policy must include a formal set of written procedures for reporting and handling complaints. These should be carefully written so as not to appear ambiguous, or overly cumbersome. The complaint procedure should encourage workers to report immediately all incidents, and employees must be made aware of the person responsible for receiving sexual harassment complaints. Policies which require an employee to report an incident to a supervisor or someone else in the chain of command will not work in cases when that person is the offender, such as in quid pro quo harassment. If several options for reporting are offered, including representatives of both sexes, then employees are more likely to come forward.
“Persons responsible for handling complaints of sexual harassment should possess characteristics that would encourage victims to come forth with claims of harassment such as being kind, tactful, warm, and capable of handling an objective investigation” (Peavy 25: 1995). Additionally, they should be provided with the necessary training on how to handle complaints and investigate harassment charges, plus given a solid understanding of the appropriate laws and EEOC guidelines. Managers and supervisors who are uncertain in their roles regarding sexual harassment may fail to take action or take inappropriate action, thereby increasing the potential liability of their organization.
Reports of harassment should be handled with extreme discretion. Many policies are unintentionally harmful to victims because they do not guarantee in writing confidentiality and protection against retaliation, even though it is illegal for an organization to retaliate in any way against employees who complain about sexual harassment. Retaliation can be in several forms, such as economic, noneconomic, intentional, or inadvertent. Thus it is important for the policy to specify the legal protection an employee has against retaliation.
Complaints and investigations must also be handled in a timely manner. Employers should be aware that they are legally bound to take “prompt remedial action” when complaints are filed. Realistic timetables for investigating, processing, and following up on complaints should be included in the written procedures for investigation. Follow up is important both in terms of liability as well as a demonstration of commitment to the zero tolerance policy.
The process for handling sexual harassment claims must include a clearly outlined disciplinary procedure that is enforced throughout the organization. Although first time offenders should be given the opportunity to correct unacceptable behavior, the sanctions policy should include the possibility of termination for severe offenses. If there is a perception that the procedure is no more than a piece of paper, then employees will not come forward internally with complaints, and may take their cases outside and file suit with the EEOC. Enforcing sanctions against offenders reinforces the message of having a zero tolerance policy on sexual harassment.
Sexual harassment in the workplace has been, and will continue to be, a major employment litigation issue over the next few decades. Recent rulings by the Supreme Court have increased the burden of proof on employers to take reasonable measures to prevent and deal with sexual harassment in the workforce. The two types of harassments being announced illegal are quid pro quo and hostile environment, upon which all the actions discussed are liable to be taken.
Employers can minimize their risk of liability in sexual harassment claims by having a good sexual harassment policy in place. Although there has not been much research on the relationship between implementing a sexual harassment policy and the number of incidents reported, in one recent study in the private sector, manufacturing firms with written policies and procedures on sexual harassment experienced a 76 percent decline in one year in the number of incidents brought to their attention (Hajdin: 2002).
Essential elements of a good sexual harassment policy include a “zero tolerance” stand on the issue, procedures in place to handle complaints and enforce sanctions, and training programs to educate employees on sexual harassment. The policy must be clearly written and widely distributed to all employees. The ability and willingness on the part of the employer to implement the policy are crucial as well. The law on sexual harassment is continually evolving, and employers need to incorporate new aspects, such as same-sex harassment, third-party harassment, and the personal use of electronic media in the workplace.