Sexual Harassment is Unwelcome Conduct

Sex-based conduct in the workplace is unwelcome when (1) an employee does not solicit or initiate the conduct; and (2) when the employee regards the conduct as undesirable and offensive.

It is important to note that persons in position of power within the workplace, such as supervisors and employers, must ensure that any social contact between employees is consensual and welcome.  Furthermore, even though employees may not actively object to specific conduct, they may in fact find the work environment hostile because of the conduct of others.  Frequently employees do not feel safe enough or strong enough to voice their objections.  Particularly if an employee is in a relatively weak and vulnerable position, she may appear to acquiesce.  Because the employee has appeared to acquiesce, however, this does not mean that the conduct was consensual or that sexual harassment has not occurred. 

In Canada, for example, laws that address sexual harassment do not require the victim to confront the alleged harasser in order to establish that the behavior was unwelcome.  Additionally, it is not necessary for the victim of sexual harassment to expressly object to the conduct if a reasonable person would understand the behavior to be offensive and sexual in content.  In establishing a sexual harassment claim, the fact that the victim made pervious complaints about the same conduct is evidence that the conduct was, in fact, unwelcome.

In cases where the behavior is not self-evidently offensive, however, express objection is required.  In such cases, it is sufficient for a legal claim if the victim has expressed objection through body language, meaning that a verbal objection is not necessary.

The Human Rights Commission of British Colombia, Canada has created a manual, Preventing Harassment in the Workplace, which provides detailed information on the obligations of employers as well as the evidence an employee must submit to make a claim of sexual harassment.

Severity and Frequency of Sexual Harassment

Whether one or a series of incidents amounts to harassment depends on a balancing of the severity of the incidents and their frequency.  The purpose for balancing the severity and frequency of the incident is to ensure that offensive comments are not made in the work environment but also to protect the employer from liability for every objectionable remark.

A single incident may constitute harassment, especially if the incident is prolonged, offensive and very serious in nature.  For example, a case in which a supervisor fondled an employee's breasts would constitute a case of sexual harassment arising from a single incident. 

On the other hand, a combination of events with varying amounts of seriousness and frequency may also be harassment.  For example, a case in which a manager repeatedly asked a clerk for a date despite consistent refusals, told sexually explicit jokes in front of the clerk, and repeatedly made sexual innuendoes to the clerk to make her blush would also constitute sexual harassment. 

In the U.S. if the behavior causes someone to take offense, it will be judged whether or not it is sexual harassment from the perspective of a “reasonable woman” or in some states, a “reasonable person”.  Under the “reasonable woman” standard, unless one-time unwelcome behavior is sufficiently severe it must be pervasive or regular to qualify as sexual harassment.  The Equal Employment Opportunity Commission (EEOC), a U.S. government body which adjudicates sexual harassment cases, takes the position that "the more severe the harassment, the less need to show a repetitive series of incidents. This is particularly true when the harassment is physical."

Sexual Harassment Detrimentally Affects the Work Environment

The affront to personal dignity that occurs as a result of sexual and other types of harassment, by definition, detrimentally affects the work environment.  It is important to understand that the intent of a person’s behavior, whether the behavior is face-to-face or behind another employee’s back may be irrelevant in determining whether or not a behavior is sexual harassment.  What matters is the impact of the behavior on the work environment.  Regardless of intent, the behavior may be judged on its impact upon the work environment.  Therefore, the statement that the conduct was not intended to have a negative consequence is not a valid defense of harassing behavior.

A hostile environment usually requires a pattern of offensive conduct.  Isolated or infrequent incidents of extremely offensive sexual or sex-based verbal conduct, particularly when perpetrated by a supervisor or coupled with physical conduct, however, may create a hostile environment.

It is also important to note that the boundaries of the work environment are not determined by location.  Instead, the boundaries of the work environment are defined by whether or not the person is doing something related to his or her job.

For this reason, harassment can occur in locations outside the traditional work site.  The workplace includes any place where employees happen to be for work related purposes.  This includes traveling to work-related conferences or branch offices, attending staff parties, attending conferences, or at the home of a colleague for a work-related activity.  The key to understanding the boundaries of the work environment is to consider whether the person is in a specific place because of their job.  If the answer is “yes” than any unwanted and offensive sex-based conduct could be considered sexual harassment.

U.S. and Canadian law, however, distinguish between the work environment and a situation in which colleagues or employees meet in a purely private setting, such as while attending a private party, while on vacation, or while attending a conference as a hobby.  Such circumstances are not considered “ work."  If harassment occurs in these situations, U.S. and Canadian law does not protect people from the harassment, unless adverse consequences are brought back to the work environment.  For example, a sexual solicitation made at a private party by a person who works for the same employer would not give rise to a complaint under the U.S. and Canadian legal systems unless the person who turned down the solicitation later suffered adverse consequences a work.

SEXUAL HARASSMENT-
Types of Sexual Harassment

Sexual harassment can take a variety of forms.  It includes both physical violence and more subtle forms of violence such as coercion or the creation of a hostile work environment.  A hostile work environment includes situations, for example, when the victim is not appointed to important committees, does not receive information about training opportunities or is not considered for promotion because of family responsibilities.  This type of sexual harassment is difficult to document but still can significantly affect women's work and career paths.

U.S. law describes two different forms of sexual harassment:

(1) quid pro quo, and (2) hostile work environment

(1) Quid pro quo is Latin for “this for that” or “something for something” and refers to an exchange.  In this case, the exchange is between employees, where one provides sexual favors in exchange for something else, such as favorable treatment in work assignments, pay or promotion.  Quid pro quo sexual harassment occurs when employment decisions and conditions are based upon whether as employee is willing to grant sexual favors.  Hiring, promotions, salary increases, shift or work assignments, and performance expectation are some of the working benefits that can be made conditional on sexual favors.

Sample Quid pro quo cases from the U.S. demonstrate the dynamics of this type of sexual harassment.

(2) A hostile work environment is one in which unwelcome conduct of a sexual nature creates an uncomfortable work environment for some employees.  Examples of this conduct include sexually explicit talk, sexually provocative photographs, foul or hostile language or inappropriate touching.

Sample hostile work environment cases from the U.S. demonstrate the dynamics of this type of sexual harassment.

Who is an Harasser & Who may be Harassed?

It is commonly thought that workplace sexual harassment is limited to interactions between male bosses and a female subordinates.  This is not true.  In fact, sexual harassment can occur between any co-workers, including the following:

·        peer to peer harassment;

·        subordinate harassment of a supervisor;

·        men can be sexually harassed by women;

·        same sex harassment – men can harass men; women can harass women;

·        third party harassment; and

·        offenders can be supervisors, co-workers, or non-employees, such as customers, vendors, and suppliers.

Another common perception is that the person who is the recipient of the behavior is the victim of the sexual harassment.  In fact, anyone who is affected by the offensive conduct, whether they were the intended “target” or not, is a victim of sexual harassment.  The U.S. Equal Employment Opportunities Commission (EEOC) states, ''the victim does not have to be the person harassed but could be anyone affected by the offensive conduct."

  Likewise, there is no “typical harassed woman.”  Women of all ages, backgrounds, races and experience and in every work environment experience sexual harassment.

Is Sexual Harassment about Sex or Power?

According to a 1992 study conducted by the International Labor Organization (ILO), ”Sexual harassment is inextricably linked with power and takes place in societies which often treat women as sex objects and second-class citizens.”

Catharine MacKinnon, one of the foremost writers on the topic, describes sexual harassment as an “explosive combining of unacceptable sexual behavior and the abuse of power.”  A particular incident of harassment may or may not include any explicitly sexual behavior, but it always involves some form of abuse of power.

For example, when a harasser sabotages a woman’s work, he is not engaging in any kind of romantic sexual action.  He is engaging in aggression.  This situation is no different from that of the street harasser who comments on a woman’s body as she walks by, the coworker who won’t stop touching her or the landlord who won’t repair the sink because she hasn’t been “nice enough” to him.  While not one of these actions is “sexual” in an affectionate or friendly sense, all are forms of sexual harassment.

It is very important to closely examine the “sexual” aspect of sexual harassment, because sexuality is often used as a justification for this social practice.  Confusion about the difference between sexual invitation and sexual harassment is common. 

Many men and women around the world believe that sexual harassment is a practice based on simple sexual attraction.  It is often seen as an expression of male interest and a form of flattering sexual attention for women – a sometimes vulgar but essentially harmless romantic game, well within the range of normal, acceptable behavior between men and women.

However, the difference between invitation and harassment is the use of power. Harassment is not a form of courtship and it is not meant to appeal to women.  It is designed to coerce women, not to attract them.  When the recipient of sexual harassment has no choice in the encounter, or has reason to fear the repercussions if she declines, the interaction has moved out of the realm of invitation and courtship into the arena of intimidation and aggression.

Confusion about the dynamics of sexuality and power in sexual harassment prevents women from reacting to harassers with strong, effective countermeasures.

Adapted from Back Off! How to Confront and Stop Sexual Harassment and Harassers by Martha Langelan.