Sexual harassment in the workplace isn’t limited to those who work in politics or the entertainment industry. The U.S. Equal Employment Opportunity Commission’s (EEOC) local office in Arizona reports that sexual harassment complaints make up 1/3 of all filings. Chances are that you or someone you know has experienced some form of sexual harassment in the workplace.
When a small or mid-size employer wants to talk with me about issues relating to sexual harassment, the following five questions (and answers) are usually discussed. Hopefully, you’ll find these helpful as well.
1. What is sexual harassment?
Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. It is also illegal to harass a person by making offensive comments about their gender in general.
The law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious—harassment is illegal, however, when it is so frequent or severe that it creates a hostile or offensive work environment.
2. Is sexual harassment only male on female?
No. Both the victim and harasser can be a man or a woman, or even members of the same sex.
3. What should an employer do when an employee reports that he or she has been the victim of sexual harassment?
Treat it seriously and investigate fully. The investigation should preferably be conducted by an HR manager or outside attorney. The investigation should include interviews of the alleged victim, the alleged harasser, and other witnesses (if any) to the harassment. The employer should document all steps taken, and all interviews conducted.
After a determination is reached, the employer should take swift, corrective action.
4. Is the employer automatically liable when one of its employees is sexually harassed in the workplace?
It depends if the harasser is a supervisor or non-supervisor.
When the harasser is a non-supervisory employee, independent contractor, or customer over whom the employer has control, the employer will be liable when it knew or should have known about the harassment and failed to take prompt and appropriate corrective action.
When the harasser is a supervisory employee, an employer can be automatically liable for sexual harassment if that harassment results in a negative employment action (e.g., termination, failure to promote or hire, reduction in wages, etc.,) against the victim. If the supervisor’s harassment results in a “hostile work environment,” the employer can only avoid liability if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassment behavior, and 2) the alleged victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
5. What should an employer do to prevent sexual harassment in the workplace?
First, draft and implement clear and direct policies regarding sexual harassment. These policies are typically put in an employee handbook that each employee must read and acknowledge with his/her signature.
Second, an annual workplace training (especially with your company’s supervisors) about sexual harassment is a good idea. The training should address how to recognize sexual harassment, how to prevent it, and how to address it when it does take place.
Lastly, set a tone of zero tolerance.
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We encourage employers who have specific questions about this or any employment law topics to contact Lindsay Leavitt at (602) 530-8091 or lindsay.leavitt@gknet.com.