Frequently Asked Questions
What is workplace harassment?
Workplace harassment is any unwelcome or unwanted conduct that denigrates or shows hostility or an aversion toward another person on the basis of any characteristic protected by law, which includes an individual's race, color, gender, ethnic or national origin, age, religion, disability, marital status, sexual orientation, gender identity, or other personal characteristic protected by law. A conduct is unwelcome if the employee did not solicit, instigate or provoke it, and the employee regarded the conduct as undesirable or offensive.
What is sexual harassment?
Sexual harassment is a form of sex discrimination that involves unwanted or unwelcome conduct of a sexual nature. This applies to harassment by a person against another person of the opposite sex as well as harassment by a person against another person of the same sex. The California Fair Employment and Housing Act defines sexual harassment as “harassment based on sex or of a sexual nature; gender harassment and harassment based on pregnancy, childbirth, or related medical conditions,” and includes many forms of offensive behavior.
Why is harassment illegal?
Workplace harassment is a violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the California Fair Employment & Housing Act. Both the federal and state laws impose liability on employers for failing to remedy or prevent a hostile or offensive work environment of which management knew or should have known about the workplace harassment.
When does harassment occur?
Harassment occurs when an employer creates, condones or permits a hostile, intimidating or offensive work environment. That may include discriminatory treatment and/or retaliation for filing a complaint or participating in an investigation.
What is the obligation of the employer in preventing harassment in the workplace?
- The employer must take all reasonable steps to prevent discrimination and harassment from occurring. If harassment does occur, the employer must take immediate and effective steps to stop further harassment and correct any effects of the harassment.
- The employer must develop and implement a harassment preventive policy. The policy should describe the types of prohibited behavior, provide complaint procedures to follow, explain the investigation process, provide assurance that prompt and effective corrective action will be taken, and ensure that there will be no retaliation for either filing a complaint or for participating in an investigation.
- The employer must also educate its employees as to the kind of behavior that is to be avoided. The employer should tell employees that it is against company policy and against the law to harass another person in the workplace.
- The employer must have an effective mechanism to prevent and promptly correct any sexual or other harassing behavior.
- With the passage of AB 1825, effective January 1, 2006, all California employers with 50 or more employees are required by law to provide two hours of harassment training every two years for their managers and supervisors. All newly hired supervisors or individuals promoted into a supervisory role must be trained within six months of becoming a supervisor. Training must be at least two hours and must be interactive.
- The employer must post the DFEH employment poster in the workplace.
- The employer must distribute an information sheet on sexual harassment to all employees. The employer may use the DFEH 185 pamphlet or develop an equivalent document.
What must the employer do when there is a harassment problem in the workplace?
The employer must conduct an immediate and thorough investigation, followed by an appropriate remedy to correct the problem. This includes disciplining or terminating the harassing employee. If the individual doing the harassing is not an employee, the employer must address the problem directly with that individual and/or organization that he/she represents, and insure the conduct is stopped immediately. The employer’s response must be reasonably calculated to end the harassment and prevent it from happening again.
What is “quid pro quo” sexual harassment?
“Quid pro quo” (this for that) harassment occurs when an employee is offered some job benefit such as promotion, pay raise, etc., in return for sexual favors or is subjected to some adverse action because of a refusal to submit to a request for sexual favors.
What is “hostile work environment” sexual harassment?
“Hostile environment” harassment occurs when an employee is subjected to unwelcome or unwanted sexual conduct that is sufficiently pervasive or severe to alter the terms or conditions of the employee’s employment, such conduct unreasonably interferes with an employee’s work performance or creates an abusive, intimidating, offensive or hostile work environment. A manager, supervisor, co-worker, or even a non-employee such as a vendor, customer or third party can create a hostile environment.
What is the employer’s liability if it fails to deal with a harassment problem in the workplace?
The employer is responsible for the harassing conduct of its managers and supervisors in “quid pro quo” and “hostile environment” situations. The employer can also be liable for harassment of an employee by co-workers and even of non-employees, if the employer knew or should have known about the harassment and failed to take immediate and appropriate action. The employer must treat all complaints seriously, investigate them thoroughly, and document its efforts completely.
Can an employee be personally liable for harassment?
Yes, effective January 1, 2001, an employee is personally liable for any harassment prohibited by the California Fair Employment and Housing Act that is perpetrated by the employee, regardless of whether the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
What can happen if a supervisor does not take the employee’s complaint of harassment seriously?
A supervisor places the company in jeopardy. Ignoring the problem may be construed as an admission that the company intentionally failed to act. Supervisors should take any comments or statements of harassment seriously, no matter how casual, and report the incident to management so that a prompt and thorough investigation can be conducted.
What are some examples of workplace harassment?
Workplace harassment can take many forms including, but not limited, to these examples:
- Verbal Sexual innuendoes and other suggestive comments; racial or ethnic slurs; humor, jokes or teasing about sex, race, age, religion, disability or gender-specific traits; repeated requests for dates; sexual advances or propositions; comments about a person’s body, dress, excessive flattery or questioning of a personal nature; abusive language or insults; or threats.
- Visual or Non-Verbal Leering or staring in a sexual manner; whistling or hooting; suggestive or insulting looks; vulgar sounds or gestures; offensive or hateful pictures, posters, calendars, cartoons or obscene e-mail; excessive attention in the form of love letters or gifts; or offensive or derogatory written materials.
- Physical Inappropriate touching of the body (e.g., brushing, patting, hugging, pinching or shoulder rubs); kissing or inappropriate display of body parts; coerced acts of a sexual nature; physically blocking another individual’s movement, assault; exclusionary or demeaning actions or activities based on age, ethnicity, sex or race.
How does one know if an offensive conduct or harassing behavior has created a hostile work environment?
Harassment must be viewed in its totality. Mere discourtesy, rudeness or lack of sensitivity should not be confused with harassment. The harassing behavior must be sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment. The more severe the conduct, the less pervasive it must be. The required showing of severity varies inversely with the frequency of the conduct. A single incident, simple teasing, off-hand comments or isolated instances of offensive sexual conduct or remarks generally will not be sufficient to create a hostile work environment. A hostile environment claim generally requires a showing of a pattern of offensive conduct. However, a single severe incident of harassment can be a violation of the law, particularly when the harassment is physical or quid pro quo.
What factors determine whether an environment is “hostile?”
The EEOC has established the following factors to determine whether a hostile work environment has been created:
- Whether the conduct was unwelcome or unwanted;
- Whether the conduct was verbal or physical, or both;
- Whether the conduct was a one-time occurrence or was repeated (e.g., continuous period of harassment);
- Whether the conduct was hostile and offensive;
- Whether others joined in perpetrating the harassment; and
- Whether the harassment was directed at more than one individual.
How can an employee make sure that his or her conduct is appropriate at all times?
- Avoid behavior that demeans, degrades, abuses or shows disrespect to any individual.
- Recognize that the same remarks or gestures that seem acceptable to some people may be embarrassing or offensive to or unwanted by others.
- Consider how you would react if the same behavior were directed toward your spouse or family member.
- Ask yourself whether you would act the same way in front of your spouse, significant other, or child.
- Ask yourself how you would feel if your behavior were captured on video, reported in a newspaper, or featured on the nightly news.
What should an employee do if he or she is harassed by another person at work?
Often, the most effective method to put an end to harassment is to tell the person to stop. Let the person know the action is unwelcome. Be direct and say something like “I’d like to keep our relationship strictly professional” or “I think ethnic jokes are offensive, so please do not tell them in my presence.” Ignoring the situation will not make it go away. If the direct approach does not solve the problem, then report the situation to a supervisor, a human resources representative or a member of management.
What if a supervisor is harassing the employee?
The employee is not required to report harassment to a supervisor who has engaged in harassment against the employee or who is a close associate of the person who has engaged in the harassment. In this situation, the employee should report the problem directly to human resources or a member of management to handle the problem.
What happens after the employee has reported harassment?
Each report of harassment will be evaluated on an individual basis. Management will need the employee’s full cooperation to thoroughly review and investigate the problem. Throughout the process, confidential or sensitive information will be shared only with those who have a need to know. After the investigation, an employee who is found to be in violation of the company’s policy on harassment will be subject to appropriate corrective action, up to and including termination. Management will advise the employee who has been harassed of the results of the investigation. Retaliation against any employee who reports a problem or files a complaint of harassment, or anyone who participates in the investigation will not be tolerated.
What can the employer do about a complaint of harassment that occurred after work and away from company premises?
Generally, the company should not intrude or become involved with the private lives of employees. However, supervisors may be viewed as company representatives when off the job, depending upon the circumstances. If there is a report or complaint of supervisory harassment, the company should look into the matter and ascertain if the employee’s outside activity has a nexus to the workplace or a harmful effect on the employer’s operation.
How We Can Help
No amount of prevention is guaranteed to categorically stop any lawsuits; however, lawsuits are less likely and less threatening if the employer has taken action to prevent sexual harassment and has dealt efficiently with any allegations of sexual harassment.
Strategic HR-ManagEase can assist by helping you develop a policy and procedures for your company for dealing with sexual harassment and providing the training to ensure that all of your employees are well versed in the policy. In addition, we offer membership in our HR Membership Program that provides you with access to an HR expert who can advise you on issues that arise at your business involving sexual harassment.
Visit our Compliance section to learn more about the services that Strategic HR-ManagEase offers to help protect your business.
Visit our Training section to see how Strategic HR-ManagEase can keep your employees informed on the latest issues and fluent in the skills they need to do their best for you.