Equal Opportunities International

H ow To Prevent Sex ual H arassment in the Workplace

by Deidre Takeyama and Brian H. Kleiner Deidre Takeyama is Director of Account Coordination, HLC-internet, Inc., 19800 MacArthur Boulevard, Suite 650, Irvine, CA 92612, USA. Professor Brian H. Kleiner can be contacted at the Department of Management, School of Business Administration and Economics, California State University, Fullerton, Fullerton, California 92634-9480, USA. Most people know that sexual harassment is illegal, but few actually know what really constitutes it. In 1980, the Equal Employment Opportunity Commission (EEOC) issued guidelines defining unlawful sexual harassment as: unwelcome sexual advances, requests for sexual favours and verbal or physical conduct of a sexual nature. When: a) b) c) Submission to such conduct is made explicitly or implicitly a term or condition of an individuals employment. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual; or

Such conduct has the purpose or effect of unreasonably interfering with an individuals work performance or creating an intimidating, hostile or offensive working environment." Basically, anyone can be sexually harassed. Similarly, anyone in the workplace, and even persons not employed by the organisation, can be accused of, and liable for, acts of sexual harassment. While the majority of sexual harassment cases occur by male aggressors against female employees, other gender combinations are, also, possible. Sexual harassment can occur man to woman, woman to man, man to man, or woman to woman. Sexual harassment most commonly occurs in two forms. Quid pro quo harassment is directly linked to the grant or denial of an economic benefit. In this context, an employer suggests to an employee that he will give her a particular job, or promotion, or salary, in return for a sexual favour. Hostile environment harassment is based on conduct that unreasonably interferes with an individuals work performance or creates an intimidating, hostile, or offensive working environment. Hostile environment harassment is classified in the following seven forms, listed in order of the frequency found in the US Merit Systems Protection Board study, the most comprehensive government survey of sexual harassment: (Rutter, 1996, p.10). 1. 2. 3. Sexual teasing, jokes, remarks, or questions Pressure for dates Letters, telephone calls, or materials of a sexual nature (to which we can now add e-mail)

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4. 5. 6. 7.

Sexual looks or gestures Deliberate touching, leaning over, cornering, or pinching Pressure for sexual favours Actual or attempted rape or sexual assault (Rutter, 1996, p.10).

Quid pro quo and hostile environment harassment often occur simultaneously. It is often difficult to determine whether sexual harassment has occurred. The crucial question in both quid pro quo and hostile environment cases is whether the alleged conduct was unwelcome. This, however, involves understanding the perspectives of both the victim and the alleged perpetrator. Another form of sexual harassment is called sexual favouritism. This occurs when someone receives a promotion after submitting to unwelcome requests for sexual favours from a supervisor. Under these circumstances, coworkers may allege sexual harassment because they were denied a chance at a promotion as a result of the sexual harassment directed toward one particular employee. Sexual harassment lawsuits include claims of personal injury, emotional distress, and contract claims. The filing of a case kicks off a lengthy and expensive process. Under Title VII, as amended by the Civil Rights Act of 1991, a plaintiff may recover lost wages as well as compensatory (emotional distress) and punitive damages. The aggregate amount of compensatory and punitive damages can reach as high as $300,000, depending on the size of the employer. Under certain state human rights laws, unlimited compensatory and punitive damages may be awarded. A successful plaintiff may also be reinstated to her or his position or, in certain cases, awarded front pay in lieu of reinstatement. If the employer loses a sexual harassment action, it will also be ordered to pay the attorneys fees and court costs of the plaintiff... In one case, an employee who had been sexually harassed by her supervisor was awarded $225,000 in punitive damages. The employee was also awarded $50,000 for emotional distress and $6.9 million in punitive damages against the employer. (Benton-Powers and Paterson, 1995, pp.17-18). According to EEOC guidelines, the best way for employers to deal with sexual harassment is to take steps to prevent it, including affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their rights to raise the issue, and developing methods to make sure all employees are sensitive to the issue. It is, in fact, the employers duty to prevent sexual harassment in the workplace and to stop it when it occurs. Courts and other investigating agencies look at the totality of the circumstances in determining whether sexual harassment has occurred. They analyse the steps a company has taken to prevent sexual harassment. There are several steps involved in implementing an effective preventive sexual harassment programme. First, there must be commitment from senior management to maintain a sexual harassment-free workplace for everyone, including themselves. Further, without communication,

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the best sexual harassment prevention programme is useless. Therefore, a written policy prohibiting sexual harassment should: state that sexual harassment on the job will not be tolerated outline the procedure for filing complaints guarantee that complaints will be treated confidentially guarantee that no adverse consequences will result from filing complaints

state that those engaging in sexual harassment will be subject to discipline, up to and including termination. There are several methods of regularly publicising sexual harassment policy: permanent postings on official bulletin boards, periodically and regularly sending out memos, internal publications or employee newsletters, routine discussions in staff meetings, and informing all new employees as part of the orientation process. The most effective method for reducing sexual harassment is educational training. Training should be mandatory for all employees. Initially conducted in a classroom, training should be augmented by continuous feedback and development. The goal is to teach employees the interpersonal skills they need to overcome gender, ethnic, and other differences. Sexual harassment training should cover the basic federal and state laws, including a summary of major court cases. It should provide examples of appropriate behaviour for dealing with different situations. Case studies should be reviewed and discussed, as they are an excellent source of examples. Also, participants should have the opportunity to practice interpersonal skills in various challenging situations. It is crucial to establish an effective complaint procedure. Even more importantly, the person designated to receive complaints should never be an employees direct supervisor. Furthermore, if an employee is not satisfied with the handling of the complaint, the employee should have the option to discuss it with another company representative. All complaints must be kept strictly confidential. Also, employees should be assured that retaliation will not be taken against them for filing a complaint. All complaints should be quickly and thoroughly investigated. Failing to investigate sexual harassment complaints implies that they are not taken seriously. Taking no action, indirectly encourages continuance of the abusive behaviour. Companies must also consistently conduct periodic audits of the workplace to ensure that the environment is free of discrimination and harassment. Physical premise audits should be performed regularly to locate inappropriate and offensive pictures, jokes, and graffiti. All such items must be removed immediately. It is also important to regularly audit the organisations policy, procedure, and management style. Termination data should be audited since it is an excellent source for scrutiny. If turnover is high in a particular department, or under a particular manager, this could be cause for suspicion. It is also important to review the organisation structure. A companys organisation structure can keep harassment hidden within a department if communication is formal rather than informal. Conversely, matrix organisations require extensive coordination and relating between departments, thereby making problems more difficult to hide. The human resources department has a big

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impact on organisational attitudes toward sexual harassment. Recruitment and selection policies and procedures should be audited to check for bias and discrimination. Also, performance evaluations should be audited. Any below average performance evaluation should be reviewed by human resources to confirm that the rating is deserved. In this evaluation, they should consider the employees past performance and check for previous performance problems within the same department. They should also verify that the supervisor had sufficient and appropriate documentation to corroborate the poor performance. It must also be verified that an improvement plan was initiated and mutually agreed to. By monitoring appraisals, patterns can sometimes be detected. If sexual harassment is discovered, appropriate action must be taken to stop it immediately. Any job benefits or opportunities lost as a result of the harassment must be reinstated. Counseling should, also, be made available to help the victim deal with the resulting stress. Additionally, the perpetrator should be disciplined. The form of discipline should be commensurate with the offence, but can include verbal or written warnings, reprimands, demotion, suspension, probation, or even termination. Lesser forms of discipline should always be accompanied by a warning that any future misconduct will result in immediate termination. Managers conducting sexual harassment investigations should be professional and nonjudgmental. They should listen carefully and take all complaints seriously. When hearing the initial complaint, the manager should not try to determine its validity, but rather, should concentrate on gathering the facts needed to start the investigation into the allegations. It is important not to be judgmental or say anything that might be misconstrued, like maybe you should not dress so provocatively. A good strategy is to start with the standard journalism questions of who did what to whom, when, where, how and why? The employee filing the complaint should, also, be asked whether they fear retaliation as a result of the complaint and how they want the problem resolved. An in-depth investigation into the allegations should immediately follow once a complaint has been filed. The persons appointed to investigate sexual harassment need to understand the law, but even more importantly, they need credibility. Additionally, they must be knowledgeable about the company and its employees. Many companies use human resources or management employees, while others use outside consultants. Because the majority of complaints come from women, many companies choose to use female investigators. All companies need a standard sexual harassment investigation procedure. It should be an easy to understand, step-by-step process. This will ensure that everyone knows exactly what to expect, what will happen, and when. It is extremely important to emphasise that any and all problems will be handled with complete discretion. Because investigations are subject to criticism, no procedure will satisfy everyone. Consistency is paramount. The same complete step-by-step procedure needs to be followed in each and every case. The investigator must be sure she understands the complaint. It is important to gather all the facts before conducting any further investigation. First and foremost, the complainant should be interviewed. It is extremely important that the investigator be supportive and empathetic. The procedure should be explained carefully. It should be stressed that the complaint is taken seriously and that it will be handled

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professionally. Also, it is important to convey that separate counseling will be made available, if needed. Next, all possible witnesses, such as coworkers, supervisors, and even customers should be interviewed. The accused should, also, be interviewed. All relevant documentation needs to be collected and a report on the investigation should be generated. If appropriate, a recommendation for action should be made. The complainant should be allowed to tell her complete story without any interruptions. Notes should not be taken at this time. When the employee is finished, the investigator should ask, Is there anything else you want to tell me about what happened? When the employee says no, the investigator can move on to the next step. At this time, notes need to be taken. The investigator should document the complete story from the complainants viewpoint. This documentation should include all of the complainants observations, names of any witnesses, and dates and times that actions occurred. Any existing physical evidence should, also, be collected such as letters, messages, photographs, etc. Once collected, notes should be read back to the employee, to make sure the facts are correct. The investigator should ask the employee to stop and correct any mistakes in the interpretation. Employers face two possible lawsuits from sexual harassment complaints, one from the complainant who thinks the case was poorly handled; and one from the alleged perpetrator who feels unjustly accused. Unfortunately, the choice may come down to taking a lawsuit for sexual harassment from the complainant or a wrongful termination suit from the accused. Therefore, it is important to try to get the complainant to sign a statement to protect the employer from charges that it did not conduct a proper investigation. By signing the complaint, the employee is indicating that her complaint is serious and that she stands by her statements. Sexual harassment is very difficult to prove. It often comes down to her word against his. Still, it is necessary to explore every area for facts. Persons in the work area should be interviewed. However, the questioning of possible witnesses should be kept as general as possible to protect the complainant, as well as the accused. Luckily, there are often witnesses who can help the company out. In many cases, the complainant does not think about key witnesses or may not even know they exist. So, it is the investigators job to track them down. Aggressors rarely prey on a single victim. If one person is complaining of harassment, it is possible that more employees have been harassed and simply have not come forward. Interviewing the accused must also be handled very carefully. It is always possible that the accused is innocent. While many sexual harassment cases are valid, occasionally employees will use sexual harassment complaints to mask some other problem. So the concept of innocent until proven guilty must be remembered while handling the investigation. The company definitely does not want to face a lawsuit by the accused. The investigator should follow the same steps when interviewing the accused that were followed when interviewing the accuser. First, let him tell his story. Document all the facts and make sure the translation is accurate. Note all of his observations, take names of any witnesses, note dates and times that actions occurred, and collect any supporting evidence like letters, messages, photographs, etc. Finally, try to convince him to sign a statement.

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Upon completion of the investigation, a decision must be rendered. However, this can sometimes be very difficult. Investigators often find themselves not knowing who to believe. Nevertheless, a decision needs to be rendered because failing to do so implies that the complaint is not true. After weighing the evidence, the investigator must decide if there is more information indicating that the event happened than not. In other words, the investigator does not have to be absolutely sure about what occurred. She must simply ask herself if the facts indicate that it is more likely that the event happened. If it is decided that the harassment occurred, the following steps should be taken: The complainant should be consulted concerning an appropriate way to resolve the matter Benefits denied as a result of the harassment should be provided immediately Wages lost as a result of the harassment should be paid immediately The perpetrator should be appropriately disciplined and the offence should be properly documented An appropriate settlement agreement should be negotiated between the victim and the perpetrator

In some extreme cases, decisions simply cannot be rendered, even after a thorough investigation. Under these circumstances, both the complainant and the accused must be notified of the indecision. A written report should be generated which includes a statement that the investigation was inconclusive. An inquiry should be made as to whether the complainant can still work in that area, and if not, the possibility of a transfer should be addressed. Furthermore, the complainant should be advised that if another incident occurs, it needs to be reported immediately. Everyone wants a safe, secure, and pleasant workplace. It is important to be able to be productive and contribute to ones organisation. Unfortunately, for some individuals, sexual harassment interferes. It affects them negatively as individuals, but also negatively affects their coworkers, their departments, and the entire organisation. Employees who feel harassed cannot concentrate on their work, have increased absenteeism, experience stress, and sometimes even suffer physical illnesses resulting from stress. This, in turn, impacts everyone around them. Sexual harassment needs to be eliminated because it is damaging to the workplace. It affects the employees harassed as well as the employees accused, who may be innocent. It can result in costly lawsuits, bad publicity, or the invasion of privacy. Prevention is the most effective way to eliminate sexual harassment. Employers are obligated to take steps necessary to prevent sexual harassment in the workplace. They need to design and implement programmes that increase employee awareness and establish procedures within the organisation to respond to claims of sexual harassment. Because more women have joined the workforce than ever before, there is more contact between men and women at work. Men and women meet at work, become attracted, make overtures, are rejected, have emotional problems, communicate, work it out, fall apart, love each other and hate each other. The social interactions that used to occur at school, at church and in social clubs now occur in

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Equal Opportunities International

the workplace. (Benton-Powers and Paterson, 1995, p.ix). The result is an increased number of complaints concerning sexual activity in the workplace. There are many underlying causes of sexual harassment. They include, but are not limited to, the loss of power, retaliation, new power, immature emotions, psychological problems, miscommunications, or cultural differences. Whatever the reasons, it is the employers obligation to prevent sexual harassment in the workplace and stop it when it occurs. References Benton-Powers, S.M. and Paterson, L.T., Sexual Harassment: What You Need to Know, Crisp Publications, Los Angeles, 1995. Lightle, J. and Doucet, E.H., Sexual Harassment in the Workplace: A Guide to Prevention, Crisp Publications, Los Angeles, 1992. Rutter, P., Sex, Power, & Boundaries: Understanding & Preventing Sexual Harassment, Bantam, New York, 1996. Sexual Harassment Manual for Managers and Supervisors: How to Prevent and Resolve Sexual Harassment Complaints in the Workplace, Commerce Clearing House, Inc., Chicago, 1991.

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