Defining workplace sexual harassment in theory might seem straightforward, but in reality it is a grey area that can be quite subjective. This can make accusations and the handling of sexual harassment allegations challenging to say the least. In addition, all parties to the allegations of sexual harassment deserve due process, and balancing this can be quite tricky. The alleged perpetrator deserves to be seen as innocent until proven guilty, while the rights of the alleged victim to seek recourse also needs to be respected, while ensuring that the allegation does not impede their career aspirations. This minefield of complexity makes many victims to remain quiet and some companies simply bury their heads in the sand and pretend nothing is happening.
The Equal Pay Act requires that males and females in the same workplace receive equal pay for equal work.
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." No one should have to deal with adhering to a request of this nature in order to maintain their employment status.
If you are the victim of sexual harassment in the workplace, there are some steps you can follow to ensure the matter is addressed. Each of these steps is important on its own, but to get the most value out of taking these steps, make sure that you are keeping a detailed record and documenting everything that transpires. Don’t only rely on the notes that your company is taking. Your own personal records will be invaluable evidence for you.
Workplace sexual harassment refers to harassment of a sexual nature, which is based on gender or physical attractiveness or un-attractiveness of a person, and consists of unwelcome sexual advances, propositions for sexual favors and any other verbal or physical conduct of a sexual nature.
There are two types of sexual harassment recognized under Federal law in the US: quid pro quo and hostile work environment (the equivalent terms “sexual coercion” or “sexual annoyance” are also used in Canada).
Quid pro quo or sexual coercion refers to instances where job benefits such as promotions, pay and performance appraisals are conditioned upon the employee providing sexual favors. Instances of quid pro quo sexual harassment include when a manager or person of authority threatens to terminate an employee who does not submit to sexual advances or where the manager or person of authority makes promises to promote an employee in exchange for sexual favors.
Hostile work environment or sexual annoyance refers to situations where an employee’s work environment is made hostile, intimidating or offensive due to the unwelcome sexual conduct and the conduct unfairly interferes with the employee’s work performance. Some examples include making offensive and/or suggestive sexual comments or jokes, conversations about sex and displaying or sexually oriented materials.
Once the first incident of sexual harassment occurs, be very clear in letting the person know the behavior is unwelcome and ask them to stop. If the behavior continues after that, tell them that you plan to file a report with Human Resources. Sometimes a person can actually be oblivious to the fact that their behavior is offensive and unwanted. Therefore, that initial chance to clean up their act is a nice gesture that could potentially clear up the matter.
If the behavior does continue after that initial conversation, report the incident officially to your immediate supervisor. He or she will likely ask you to follow up your verbal explanation with a written report describing the event in as much detail as possible. It is possible that your immediate manager is the harasser or if he or she refuses to take action, alert the next person in your reporting line. Whoever you report to should handle your complaint with discretion and confidentiality. If there is any evidence related to your grievance, be sure to present that at the time of your formal complaint.
For legal reasons, if you plan to prove workplace sexual harassment, you should follow these seven steps to clearly show that you objected to the unwanted gestures, comments or physical contact. If these steps are not followed, then proving that you were not a willing recipient will be more difficult.
1. Talk to the Person Directly
2. Alert Your Manager or Supervisor
3. Alert Human Resource Management
4. Submit to Company Resolution Process
5. Approach the EEOC
6. File a Lawsuit
7. Keep Track - Document Everything!
If your employer has a complaint procedure (which it should), follow the steps set out under the procedure for bringing the harassment to the appropriate parties within your company. Certainly bring it to the attention of your HR department as they would be best equipped to inform you of next steps or any actions to take in the meantime. Note that everything needs to be in writing. You want documentary proof that you can later refer to. Your HR department will also take their own notes, but make sure you take yours too.
Submit to arbitration or other process that your company offers to resolve the problem. Take part in the fact finding steps or meeting initiated or requested by your HR department. Don’t just make a complaint and then refuse to cooperate with efforts being made to resolve the matter. Provide all the necessary details requested and provide any evidence that you may have.
Some companies have been known to really drop the ball when it comes to sexual harassment allegations. If your complaint is not handled to your satisfaction, or the harassment continues, it is well within your right to contact the Equal Employment Opportunity Commission to file a case. It is their job to investigate and address issues of discrimination and harassment in the workplace. Once things escalate to this point, it is probably in your best interest to hire an attorney. Depending on the facts of your case, the EEOC may after investigation, decide to dismiss your charge, investigate, request that you and your employer try to settle or mediate the dispute, or take other action. The evidence you provide is what the EEOC can work with, so obviously the better the quality of the evidence you have the better your case. As previously alluded to, such evidence will include all the notes you’ve been taking throughout the process.
Depending on the severity of the incident, filing a lawsuit may be the next step. After processing your claim the EEOC may issue you a right to sue letter, which will then enable you to file a lawsuit. Be sure to have your ducks in a row after consulting the EEOC. There is a chance that monetary damages can be awarded if you were let go due to the incident. For you to get any compensation, however, you need to be sure that you have credible evidence that is contemporaneous to the instances of harassment, your reporting it to your manager and all the other steps you’ve taken.
Employees can sue for sexual harassment in the workplace if an employer is made aware of the work environment and doesn’t take the initiative to fix the problem. If this is the case, the employer can be held liable for the workplace sexual harassment. However, if the employer is not engaging in the alleged activity or isn’t made aware of the situation, the employer will most likely not be held responsible. This is especially true if the employer has a program or process in place that allows employees to submit grievances and the employee doesn’t take advantage of the program or process. To be successful in their claim of sexual harassment, employees should keep detailed records of any instances of sexual harassment to serve as proof and follow human resource guidelines if available.
As alluded to above, the right documentation is critical to ensuring that you get justice if you have been a victim of sexual harassment. It is not enough simply to document, it is also very important to make sure that you store and present your evidence in a way that guarantees their authenticity. Otherwise, you could be accused of fabricating evidence after the fact. Forensic Notes’ document storage and verification system protects the integrity of all your documents and other evidence stored on it, thus giving your documents the credibility and authenticity they need, so that they can be accepted as evidence, whether it’s by the EEOC or in court.