Sexual Harassment Prevention Training Info

A Quick Reference Guide to Sexual Harassment Law -- step by step description to help your employees understand the law in this area

A Quick Reference Guide to Sexual Harassment Law

by Gerard Panaro, BOL Guru

Definition of sexual harassment (from EEOC regulations)

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating,hostile, or offensive working environment.

Note: Under recent court decisions, "sexual" harassment does not have to be of a sexual nature; harassment that is based on gender is unlawful.

Same standard applies to all forms of unlawful harassment: race, color, religion, national origin, age, disability, or protected activity.

Not a civility code. The law against sexual and other forms of harassment is not a "general civility code". Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. (However, when isolated incidents that are not extremely serious come to the attention of management, appropriate corrective action should still be taken so that they do not escalate.)

Workplaces need not become battlegrounds where every minor, unwelcome remark based on race, sex, or another protected category triggers a complaint and investigation.

"Severe and pervasive." To be illegal or unlawful, the harassment must be "sufficiently severe or pervasive" to hold the employer liable.

Hostile environment. To determine whether a work environment is hostile or abusive, courts look at all the circumstances, including:

a. The frequency of the discriminatory conduct

b. Its severity

c. Whether it is physically threatening or humiliating or a mere offensive utterance

d. Whether the conduct unreasonably interfered with the employee's work performance

e. What psychological harm, if any, resulted (Conner v. Schrader-Bridgeport Internatl, Inc., 84 FEP Cases (BNA) 111, 121 (4th Cir (Va) 2000))

Preventive steps.

a. Employees should report harassment before it becomes severe or pervasive. While isolated incidents of harassment generally do not violate federal law, a pattern of such incidents may be unlawful.

b. Reasonable care in preventing and correcting harassment requires all supervisors to report complaints of harassment to appropriate officials.

c. A conflict between an employee's desire for confidentiality and the employer's duty to investigate may arise if an employee informs a supervisor about alleged harassment, but asks him or her to keep the matter confidential and take no action. Inaction by the supervisor in such circumstances could lead to employer liability.

Conducting an investigation

a. Complaints of sexual harassment should be investigated promptly (i.e., immediately), thoroughly, and impartially.

b. Interim measures. It may be necessary to take intermediate measures before completing the investigation to ensure that further harassment does not occur. These may include: making schedule changes so as to avoid contact between the parties; transferring the alleged harasser; placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation. The complainant should not be involuntarily transferred or otherwise burdened.

c. Interviews. The investigator should interview the complainant, the alleged harasser, and third parties who could reasonably be expected to have relevant information. Information relating to the personal lives of the parties outside the workplace would be relevent only in unusual circumstances. When interviewing the parties and witnesses, the investigator should refrain from offering his or her opinion.

Remedies/discipline

a. Remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. These remedial measures need not be those that the employee requests or prefers, as long as they are effective.

b. Remedial measures should not adversely affect the complainant. Thus, for example, if it is necessary to separate the parties, then the harasser should be transferred. Remedial measures should also correct the effects of the harassment: put the employee in the position s/he would have been in had the harassment never occurred.

c. Examples of discipline. Disciplinary measures should be proportional to the seriousness of the offense. These may include: oral or written warning or reprimand; transfer or reassignment; demotion; reduction of wages; suspension; discharge; training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer's anti-harasment policy; monitoring of harasser to insure that harassment stops.

Victims' responsibilities

a. Under the law, victims of unlawful harassment have responsibilities and duties as well to avoid or minimize harassment and the adverse consequences that may flow from it. The general rule is that a victim has a duty to use such means as are reasonable under the circumstances to avoid or minimize the damages that result from unlawful harassment.

b. A victim has a duty to provide information to support his or her allegation, to give truthful information and otherwise to cooperate in an investigation. However, an employee can never be required to waive his/her legal rights. Also, the employee should not unreasonably delay complaining.

c. If the employer can prove that the employee unreasonably failed to use its complaint procedure, it may not be liable for harassment.

d. An employee should not necessarily be expected to complain to management immediately after the first or second incident of relatively minor harassment.

e. An employee might reasonably ignore a small number of incidents, hoping that the harassment will stop without resort to the complaint process.

f. The employee may directly say to the harasser that s/he wants the misconduct to stop, then wait to see if it does. However, the employee does not have to try to resolve the matter with the harasser.

g. If the harassment persists, however, then further delay in complaining might be found unreasonable. Gerard P. Panaro, Artabane & Belden, P.C., 2021 L Street, NW, Washington, DC 20036. Tele (main): 202-861-0070; tele (direct; voice mail): 202-861-1314; fax: 202-861-2939; e-mail: gpanaro@artabane-belden.com

First published on BankersOnline.com 1/15/01