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California Client News Personnel Management

    Posted Tuesday, August 05, 2008                                                                         JLZ Business Services

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Sexual Harassment Guidelines
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Sexual Harassment - What is it?
Sexual harassment may be physical, verbal, or nonverbal. In the work place, sexual harassment is defined as unwanted sexual advances that cause the receiver to feel his/her environment is intimidating, hostile, offensive, or demeaning, thus causing a lack of comfort in the work place setting. This may include anything from blatant assault and rape to suggestions of changing a professional relationship to a personal one.

The Equal Employment Opportunity Commission in 1984 defined sexual harassment in a policy statement as follows:

1. submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment advancement,

2. submission to or rejection of such conduct by an individual issued as the basis for employment decisions or academic decisions affecting such individual, or

3. 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 environment.

A few examples of sexual harassment include any of the following that may make an offensive work environment:

1. Sexually-suggestive comments, whether "jokes" or otherwise.

2. Suggestions or threats that suggest a person’s refusal of sexual favors may result in punishment of some kind.

3. Discussion of body parts.

4. Brushing against another’s body.

5. Leering.

6. Offensive, crude language.

7. Displaying pictures or objects related to sex.

8. Behaving inappropriately (i.e., touching, patting, kissing).

     

Definition Of Sexual Harassment

The Fair Employment and Housing Act defines harassment because of sex as including sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.

The Fair Employment and Housing Commission regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of violations:

  • Unwanted sexual advances
  • Offering employment benefits in exchange for sexual favors
  • Making or threatening reprisals after a negative response to sexual advances
  • Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters
  • Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes
  • Verbal sexual advances or propositions
  • Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations
  • Physical conduct: touching, assault, impeding or blocking movements

Employer Liability:

All employers are prohibited from harassing employees in the workplace. If harassment occurs, an employer may be liable even if management was not aware of the harassment.

An employer might avoid liability if the harasser is a non-management employee, the employer had no knowledge of the harassment, and there was a program to prevent harassment. If the harasser is a non-management employee, the employer may avoid liability if the employer takes immediate and appropriate corrective action to stop the harassment once the employer learns about it. Employers are strictly liable for harassment by their supervisors or agents. The harasser can be held personally liable for damages.

Additionally, Government Code section 12940, subdivision (k), requires an entity to take "all reasonable steps to prevent harassment from occurring." If an employer has failed to take such preventative measures, that employer can be held liable for the harassment.

A victim may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.

Employer Obligations:             Employee Sexual Harassment Policy

All employers have a legal obligation to prevent sexual harassment.
  • Employers must take all reasonable steps to prevent discrimination and harassment from occurring.
  • Employers must help ensure a workplace free from sexual harassment by posting in the workplace a poster made available by the Department of Fair Employment and Housing.
  • Employers must help ensure a workplace free from sexual harassment by distributing to employees information on sexual harassment. An employer may either distribute a brochure that may be obtained from the Department of Fair Employment and Housing or develop an equivalent document, which must meet the following requirements:
    • The illegality of sexual harassment
    • The definition of sexual harassment under state and federal laws
    • A description of sexual harassment, utilizing examples
    • The internal complaint process of the employer available to the employee
    • The legal remedies and complaint process available through the Department and the Fair Employment and Housing Commission
    • Directions on how to contact the Department and the Fair Employment and Housing Commission
    • The protection against retaliation for opposing the practices prohibited by law or for filing a complaint with, or otherwise participating in investigative activities conducted by, the Department or the Commission
  • Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.  There after, covered employers must provide sexual harassment training and education to each supervisory employee once every two years.

Enforcement of the Law

Employees or job applicants who believe that they have been sexually harassed may, within one year of the harassment, file a complaint of discrimination with the California Department of Fair Employment and Housing.

The Department will investigate the complaint and attempt to resolve the disputes. If the Department finds evidence of sexual harassment and settlement efforts fail, the Department may file a formal accusation against the employer and the harasser. The accusation may lead to either a public hearing before the Fair Employment and Housing Commission or a lawsuit filed on the complainant's behalf by the Department.

If the Commission finds that harassment occurred, it can order remedies, including up to $150,000 in fines and/or damages for emotional distress from each employer or harasser charged. In addition, the Commission may order hiring or reinstatement, back pay, promotion, training, and changes in the policies or practices of the involved employer. A court may order unlimited damages.

Preventing Sexual Harassment:

A program to eliminate sexual harassment from the workplace is not only required by law, but it is the most practical way to avoid or limit damages if harassment should occur despite preventative efforts.

Complaint Procedure

An employer should take immediate and appropriate action when he/she knows or should have known that sexual harassment has occurred. An employer must take effective action to stop any further harassment and to minimize any effects of the harassment. To those ends, the employer's policy should include provisions to:

  • Fully inform complainant of his/her rights
  • Fully and effectively investigate. The investigation must be immediate, thorough, objective and complete. Anyone with information on the matter should be interviewed. A determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appropriate, to all others directly concerned.
  • If harassment is proven, there must be prompt and effective remedial action. First, appropriate action must be taken against the harasser and communicated to the complainant. Second, steps must be taken to prevent further harassment. Third, appropriate action must be taken to remedy the complainant's loss, if any.

Training of all individuals in the workplace

All employees must receive from their employers a copy delivered of the DFEH pamphlet "Sexual Harassment is Forbidden by Law" (DFEH-185) or an equivalent document.

All employees should be made aware of the seriousness of violations of the sexual harassment policy. Supervisory personnel should be educated about their specific responsibilities. Rank and file employees should be cautioned against using peer pressure to discourage harassment victims from using the internal grievance procedure.

Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.  There after, covered employers must provide sexual harassment training and education to each supervisory employee once every two years.

Typical Sexual Harassment Cases:

The three most common types of sexual harassment complaints filed with the Department are:
  • An employee is fired or denied a job or an employment benefit because he/she refused to grant sexual favors or because he/she complained about harassment. Retaliation for complaining about harassment is illegal, even if it cannot be demonstrated that the harassment actually occurred.
  • An employee quits because he/she can no longer tolerate an offensive work environment, referred to as a "constructive discharge" harassment case. If it is proven that a reasonable person, under like conditions, would resign to escape the harassment, the employer may be held responsible for the resignation as if the employee had been discharged.
  • An employee is exposed to an offensive work environment. Exposure to various kinds of behavior or to unwanted sexual advances alone may constitute harassment.

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