From the 'Lectric Law Library's Stacks
A man without money needs no more fear a crowd of lawyers than a crowd of pickpockets. -- R. Rinkle
There is much uncertainty about sexual harassment. Over time, courts will decide cases and a body of DO's and DON'Ts will emerge, but until that happens, much reliance is placed on the common sense and decency of supervisors and employees.
Given the new awareness and the sensitivity of some people, does this mean that no employees can date each other, or even flirt or joke around a little?
Supervisors are held to a different standard than other employees. It's always bad judgment for a supervisor to date someone who reports to him/her, but we all know it occurs . . . and that it isn't always harassment. When there are intimate relations between a supervisor and a subordinate, someone else in the department may feel that the subordinate is getting preferential treatment, and that may be sexual discrimination.
The EEOC (Equal Employment Opportunity Commission) Compliance Manual, in the chapter on sexual harassment, says: Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances, the employer may be held liable for unlawful sexual discrimination against other persons who were qualified for but denied that employment opportunity or benefit.
What's difficult for many people to understand is that employees may feel harassed by behavior that's far short of blatant demands for sexual favors. A man may think he's merely flirting and being complimentary, but a woman may feel harassed. The crucial element is the reaction of the recipient. Many people (but not all) can tell whether the person they're flirting with is enjoying it and wishes it to continue. If both parties are comfortable, and it doesn't interfere with work, it isn't harassment.
Can you ever compliment a person of the other sex without risking a sexual harassment charge?
It depends on what you're complimenting. Compliments are not illegal, but if your compliments are on the size of a woman's breasts, you are in trouble. Moreover, if you seem to focus on her/his appearance more than on her/his work, then you may also have a problem.
Several men and women have been standing around, telling stories and joking by the copying machine. If one of the women doesn't object to the jokes and sexual innuendos, can you assume it's OK with her and that she is not being harassed?
Silence does not mean assent, but a complaint of sexual harassment in this case would be hard to sustain, in the absence of other facts.
If you are a supervisor, however, you must be very cautious because many women are hesitant about raising objections for fear of jeopardizing their position. The potential problem you face as a supervisor is that you may appear to be accepting or tolerating sexually- oriented behavior at work, which may send the wrong message to a few people. If these are people you know well, and there is plenty of give-and-take by all participants, it would be difficult to sustain a sexual harassment complaint, in the absence of other sexually-oriented behavior.
Suppose you are a supervisor and you know that one of your employees is pestering another for a date. He's also sending love letters, but there are no threats. She hasn't said anything to you, but you've heard from others that she's most uncomfortable. What do you do?
If you know of a situation like this between two employees, even if the behavior occurs off-site, you are under an obligation to see that the behavior does not recur. She has made it clear that the attention is unwelcome and intimidating -- that means it is sexual harassment in the court's view. Because you supervise both, you must take affirmative action to prevent the behavior from continuing.
Since men and women may interpret things differently, how can a man know what he can and can't say or do without stepping over the line?
To expect that people who work together aren't going to flirt, joke and even date is unrealistic. And to tell people that they can only talk about business-related matters is even worse. But it is not always easy to know what someone else may consider offensive or intimidating. A good general rule is to be sensitive to the reactions of others and honor their request to avoid any sexual behavior or discussion that might be offensive.
There's a growing body of research that shows that men and women interpret many things quite differently, and words or behavior you or I think are inoffensive, may be embarrassing or demeaning to someone else. A good general rule is to be sensitive to the reactions of others and honor their request to avoid any behavior or discussion that is offensive.
If you are a supervisor, you may be wise to avoid joining into those discussions, but you'll make a fool of yourself if you try to monitor people's conversations. A good general rule is to be sensitive to the reactions of others and honor their request to avoid any behavior or discussion that is offensive or embarrassing.
Often there are no witnesses to a sexual harassment incident and it all comes down to the credibility of the parties involved and the prejudices of those in authority. As the victim, how can a person be confident that complaining won't cause even more trouble?
An employer's policy and procedures or its good intentions, coupled with all the EEOCs and laws and courts in the country are not going to prevent some offensive incidents from happening. And justice will not always be served. Nevertheless, you should have faith that in the long run, it is better to object and complain than simply to suffer in silence and hope that the problem goes away.
Here's another look at that situation, but this time you are the supervisor. There are no witnesses to an alleged sexual harassment incident and it all comes down to the credibility of the parties involved, both of whom report to you. What do you do?
Transferring the victim may be regarded as punishment for blowing the whistle, so that's definitely out. Moreover, if you discharge an employee without good proof, you may be vulnerable to a wrongful discharge suit, and courts have awarded enormous damages in those cases. (There has been at least one case where the employer lost BOTH a sexual harassment complaint for not acting expeditiously enough and a wrongful discharge suit for acting too forcefully!)
The problem of sexual harassment today is both serious and widespread. And most of the courts agree with that.
In spite of the barrage of headlines and articles about sexual harassment, many people are still blind to how common it really is. Here's what male executives think:
A 1993 poll conducted by the Harvard Business School reported that two thirds of the respondents thought that reports of sexual harassment are greatly exaggerated. In a similar poll of executives in smaller firms, 58% said that sexual harassment was not a problem in their organization- -only 12% said it was a significant problem. But the fact is that 90% of Fortune 500 companies had a sexual harassment complaint filed against them in 1992. The number of complaints filed doubled between 1991 and 1992 -- and the rate continues to rise.
In May 1994, the Wall Street Journal reported that sexual harassment awards ballooned . . . "Last year, about 1,500 people -- mostly women - - won $25.2 million from employers in EEOC cases involving sexual harassment. That is more than double the amount paid out in 1992.
Other studies have shown that anywhere from 50 to 85% of all female employees feel that they have been subjected to sexual harassment sometime during their careers. Those studies included women lawyers, business executives, military personnel and government employees, as well as secretaries and manufacturing workers. Although there may be a great deal of uncertainty about whether a particular behavior is harassment or not, the conclusion seems inescapable that most women believe it is a problem . . . which means we are all going to have to deal with that perception as well as the reality behind it for years to come.
There is much speculation about the motivation of a victim who complains about sexual harassment. But the fact is that most just want to get on with the job, free of the unpleasantness of sexual harassment.
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.