(Part 2 of 2 articles)
Part 1 of this article is entitled: “What To Do When A Federal Employee Alleges Harassment”
You might wonder why sexual harassment cases seem to receive so much attention and why mishandling of a sexual harassment allegation can be a “career killer” for a supervisor. For starters, it’s against the law – sexual harassment is a form of sex discrimination, which is prohibited under Title VII, the Civil Rights Act of 1964, as amended in 1991.
The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”
Sexual harassment is by no means new to the workplace but it pretty much flew under the radar until the early 1990s, when a series of high-profile incidents took place, including the Navy Tailhook Convention in Las Vegas in 1991, where investigators found that at least 85 women (and 7 men), including officers, were subjected to sexual misconduct, including verbal harassment, pornographic photographs and videos, indecent exposure, being groped, and efforts to strip off their clothing. There were also sensational sexual harassment charges leveled by law Professor Anita Hill against U.S. Supreme Court Justice nominee Clarence Thomas in the latter’s Senate confirmation hearings and against U.S. Senator Robert Packwood of Oregon by many of the senator’s female employees.
While the percentage of sexual harassment complaints filed by men has been growing and reached 15% in FY 2004, the overwhelming majority of such claims in the early 1990s were filed by women. In fact, the U.S. Court of Appeals for the Ninth Circuit held in a 1991 case, Ellison v. Brady, that determination of whether behavior or speech constitutes sexual harassment should be based on how a “reasonable woman” would perceive it. The U.S. Supreme Court, in Harris v. Forklift Sys., Inc., 1993, used a “reasonable person” standard for assessing hostile environment claims. EEOC’s Policy Guidance on Harris and on sexual harassment issues in general stated that “investigators should continue to consider whether a reasonable person in the victim’s circumstances would have found the alleged behavior to be hostile or abusive.”
“The Supremes” have continued to weigh in on sexual harassment cases. In Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257, and Faragher v. City of Boca Raton, 118 S. Ct. 2275, both decided in 1998, the Court made clear that “employers are subject to vicarious liability for unlawful harassment by supervisors. The standard of liability set forth in these decisions is premised on two principles: 1) an employer is responsible for the acts of its supervisors, and 2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment…”
If all of that isn’t complicated enough for you, research has indicated that men and women tend to view sexual harassment from different perspectives. For example, sexual harassment prevention trainers have asked thousands of class participants the following question: “If you were propositioned in the office would you be: a) flattered; or b) offended?” With remarkable consistency, two-thirds to three-fourths of the women in class after class said they would be offended, while two-thirds to three-fourths of the men said they would be flattered.
In addition, many employees who feel that they have been sexually harassed are embarrassed to report it or are fearful of retaliation from the harasser – or even from management. Such employees tend to increase their use of sick leave and may ultimately leave the agency rather than continue to face a hostile work environment. As a supervisor, you are required to maintain a workplace that is free from sexual harassment, so you not only need to act quickly and effectively after receiving an allegation but you should also regularly practice “management by walking about,” a technique which can serve as an early warning device for problems.
As the old saying goes, “an once of prevention is worth a pound of cure,” but because even exemplary prevention techniques can’t guarantee that you’ll never receive a sexual harassment allegation, you might want to think about putting that “bomb squad” on speed dial.