Anonymous asked this question on 3/19/2000:
What exactly is sexual Harassment? What rights does the employee have? What rights does the employer have? How do you determine who is telling the truth?
hrpro2000 gave this response on 3/20/2000:
Wow! You've asked four great questions. I'll take them one at a time.
First what is sexual harassment?
Sexual harassment can take many forms. It can be "pro-forma" which loosely translated means "something for something". This is perhaps one of the ugliest forms of sexual harassment, where a person in power demands sexual favors in return for employment, promotion, salary increase, or threatens not to hire or to terminate or poor increases if a sexual favor is not granted. Another type of sexual harassment is where the culture or climate of the workplace is made to be hostile or offensive by the conduct of others. It could be in the form of continual foul and offensive language with sexual conotation and/or overtones. It could take the form of sexually explicite or demeaning jokes, and of course it could be improper or suggestive touching, groping etc., or it could be the perpetrator touching him or her self in a suggestive way that creates a hostile, offensive workplace.
The pro-forma type of sexual harassment claim usually requires only one event to be considered sexual harassment, while a hostile or offensive work environment claim may require several events to establish a pattern or practice of conduct that creats the hostile or offensive environment. (It should be noted that in some cases decided by the courts, just one offensive act - due to the gross nature of the conduct - has be sufficient to be considered sexual harassment.)
Second, what rights does an employee have?
In all 50 states, an employee has a right to work in a workplace free from sexual harassment. This right is provided in almost every case by federal law and state law. A victim of sexual harassment should be able to lodge a complaint with the employer and the employer has an obligation to investigate the aligation and then if found to have merit, take action (immediately) that will effectively eliminate the harassment and remedy the situation. The victim can also file a claim of sexual harassment with the state agency charged with investigating and enforcing the states non-discrimination and sexual harassment laws. In addition, the victim can file a claim of sexual harassment with the Federal Equal Employment Opportunity Commission (EEOC). Often both the state claim and the federal claim can and are filed simultaneously with the state agency which forwards the filing to the EEOC. Finally, a victim has a right to pursue their claim in court (suing the perpetrator and/or the employer). [There are time limits for filing a claim or pursuing a lawsuit so I would advise seeking advise directly from your state agency or getting legal advise early on in the process.]
Third, What rights does an employer have?
The employer has a right (and a responsibility) to establish a firm policy and enforse rules that prohibit any form of discrimination or illegal harassment, including sexual harassment, to conduct training sessions to educate all employees on the subject, including a clear definition of the kind of conduct that is prohibited and the rights of the victim and to whom a victim can go to seek help. Finally, the employer has a right to discipline or discharge those that violate its policies by committing sexual harassment.
Fourth, How do you determine who is telling the truth? [I'll also attempt to answer a fifth question not asked... How do you determine if the conduct complained of is actually hostile and offensive conduct, since different people especially men and woman often view things differently?]
Who is telling the truth can be one of the more difficult problems to address. Often such claims are "he said she said" situations. To be fair, other facts, evidence and witness testimony has to be sought out. Frequently there are records documents, that can help and there are others in the workplace that have witnessed acts or events that can shed light on the case. It is important to quickly conduct a thorough investigation, maintaining confidentiality to the greatest extent possible in order to protect the rights and reputation of both the victim and the accused. All evidence must be considered. Verify all records including dates and times and review timekeeping records or other documentation that might be evidence that could corroborate either parties story. Talk to witnesses (try to obtain a committment from witnesses to respect the privacy of the parties). Ask both parties and all witnesses for the names of other potential witnesses. Keep complete notes of all records reviewed, and of all statements of witnesses, the accused and the victim. Finally, review all the evidence and statements in their totality... if needed review the entire case with a third party, sometimes a third party review will provide a helpful perspective.
And the fifth question:
In hostile/offensive environment claims, when considering whether the conduct in question was suffieciently unacceptable or gross to be hostile or offensive and thereby support a claim of sexual harassment, you must consider whether or not a reasonable person would be offended by the conduct, and the courts have concluded that a reasonable person test must consider the gender of the victim. In otherwords, if the victim is a female, then you must consider how a reasonable female would view the conduct of the accused harasser. This is so because often men and woman view conduct differently, what is offensive to one may not be offensive to the other, but the courts have said that if the conduct would be offensive to a reasonable woman, then it will be considered offensive to a female victim, regardless of how a male might view the conduct.
I hope this answers your questions (and that you are not bored to tears after reading it.
hrpro2000 gave this follow-up answer on 3/20/2000:
sorry, in the opening paragraph I used the term "pro-forma" and intended to say quid pro quo... that term means something for something, I appologize... and should not answer questions at 4:30 AM.
Best regards, BobO
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