In 2012, Ani Chopurian won a workplace sexual harassment case against Mercy General Hospital in Sacramento, California. Ani allegedly filed numerous complaints in the two years she served as a physician assistant, and in those two years, nothing was done about those complaints. A federal jury awarded her $168 million.
One of the biggest responsibilities of an employer to its employees is to provide a safe working environment. Under this falls the duty to take concrete actions to prevent sexual harassment in the workplace. A concrete action in this example would have been for the company to launch an investigation into the complaints.
So, what is sexual harassment in the context of the workplace?
Sexual advances do not have to be physical to be considered harassment. Whether physical or verbal, a sexual advance that is not welcome can be considered sexual harassment when:
- The act affects an individual’s employment.
- A certain behavior or conduct unreasonably affects or interferes with an individual’s work performance.
- A certain behavior creates a hostile, offensive, or intimidating work environment.
In Ani’s case, included in her complaints was an allegation that there was a surgeon in the hospital who would greet her every morning, saying “I’m horny,” and then he’d slap her behind.
What Ani experienced was far from life-threatening. For some people, perhaps, this might even be a ‘normal joke’ between long-time colleagues. However, what’s important to note here is that Ani filed complaints--which means she felt uncomfortable and deemed the gestures inappropriate--but nothing was done about the situation.
It is also important to note that unwelcome sexual advances are considered sexual harassment even when things didn’t start that way. For example, if Timothy and Samantha are officemates who have breakfast at the same coffee shop every day before work, it wouldn’t be surprising if they develop a certain bond or liking for each other. This relationship might then include occasional compliments and ‘sweet’ gestures. However, if at some point Samantha tells Timothy that she is now seeing someone and thinks it inappropriate for them to continue having breakfast together, but Timothy persists and keeps inviting her to breakfast or lunch and insists they maintain the kind of relationship they had, then this could be considered sexual harassment. Why? Because if Samantha already told him she thinks they shouldn’t be as friendly towards each other anymore, and he insists on keeping things the way there were, common sense will tell anyone that Samantha will surely start feeling uncomfortable working with Timothy to the point that it may affect her performance at work.
Sexual harassment also need not be sexual in nature. When an employee is treated less favorably because of sex or gender, regardless of whether or not there were sexual advances made, this is considered sexual harassment. So, if Samantha has been working hard to get a well-deserved promotion, but whenever the opportunity arises, a man gets the job, then Samantha can file a complaint if she feels that her being female has something to do with not being promoted. Note that the same applies to both men and women. At the same time, it is important to remember that in cases where sexual harassment is involved, how the complainant feels has more weight than what the intention of the accused was.
A sexual advance or any act considered to be sexual harassment does not have to be directed at the complainant. Language or acts that are sexual in nature can be found offensive by anybody even if the gesture or comment isn’t directed at that person. For example, if Frank and Jasmine have been dating for quite some time and have been very public about their relationship, and at the same time display their affection for each other in public and make sexual jokes or comments even around their colleagues, someone else in their workplace who might be offended by these would have a case even if Jasmine was okay with it.
What can be done about sexual harassment in the workplace?
It might be cliche, but it is true that “prevention is better than cure.” And when it comes to sexual harassment, educating a company’s workforce plays a vital role in preventing or at least minimizing sexual harassment incidents in the workplace. Although there are many people who simply don’t care, there is a good number out there who just aren’t aware that their actions already constitute sexual harassment and an equally good number who either don’t know enough about sexual harassment or just don’t know what to do about it.
It’s a good thing that there are state-dependent laws that require companies to provide training regarding sexual harassment. In California, specifically, Assembly Bill No. 1825 (AB 1825), also known as the California Fair Employment and Housing Act (FEHA) requires companies with 50 employees or more to have sexual harassment training for all employees with supervisory or managerial functions. The requirement is for a 2-hour sexual harassment training to be given within the first six months the employee is hired; and then every two years thereafter. And in 2014, AB 2053 was passed into law requiring the prevention of abusive conduct to be included in the mandatory training.
This training help immensely when it comes to educating everyone in the company. They also help shed some light on common misconceptions that either lead to poor decision making or inaction.
What are the common misconceptions about sexual harassment in the workplace?
A very common misconception about what sexual harassment is that it only happens when a male supervisor or employer makes unwelcome sexual advances towards a female subordinate. Another is that the harassment has to take place in the workplace.
Sexual harassment does not look at the sex or gender of the offender nor the victim. The victim also does not necessarily have to be a subordinate or a regular employee. A victim of sexual harassment may be a subordinate, an immediate supervisor, or someone of the same rank or designation. The victim may also be a contractor of the company, not necessarily another full-time employee. Also, whether or not the unwelcome sexual advances are done in the workplace, and whether or not these are done within working hours, do not matter.
When trying to decide whether or not a situation involves sexual harassment, it is important to view things from the perspective of the party on the receiving side of the sexual advance--the potential victim or complainant.
- Consider if a reasonable person would see the behavior as offensive, hostile, or intimidating.
- Harassment is judged from the standpoint of the victim, not the harasser. Therefore, the impact of the behavior on the complainant is what matters and not what the intention of the harasser was.
As in Ani’s situation, what the doctor did might have been something he had done to so many other colleagues and this was his way of being friendly. However, he should have known that not everyone would be okay with that kind of language or gesture.
Because of misconceptions or lack of knowledge about the law, people miss out on opportunities just because they aren’t the gender of choice of the person making the decision. Other times, men and women put up with inappropriate behavior or language thinking it’s ‘normal’ to have these things in the workplace. And unfortunately, there are also those who don’t say anything or don’t take action because they either feel that either their personal safety or job security is being threatened, or they simply don’t know that actions can be taken to put a stop to sexual harassment.
What can be done to avoid being charged with sexual harassment in the workplace?
Nobody wants to be charged with anything that even resembles sexual harassment. As soon as the word gets out, guilty or not, the “harasser” will most likely deal with at least one of the following--shame, the stigma of being a sexual predator, guilt, regret, suspension or even termination. So, what should you do?
- Know your company’s policies. Although every company might have its own set of guidelines regarding sexual harassment, the policies would still differ from one company to another when it comes to the specifics. It’s best to familiarize yourself with the policies of your current company and if you do change employment, never assume that the new company would have the same guidelines.
- Avoid carelessness. Always be careful with your actions and your words. If you’re not certain that what you’re going to say or do will not be construed as sexual harassment or bullying, then simply choose inaction. Remember, better safe than sorry.
On the other hand, what if you’re the one on the other side of the coin?
What should employees do when they are being sexually harassed?
Now, what happens when you find yourself in a situation where someone at work is making unwelcome sexual advances or you feel that the actions of someone in your workplace make environment hostile or offensive?
- Tell the harasser to stop--whether it is your harasser or someone who is harassing a colleague. If someone is making sexual comments at work, or even bringing sexual items to the workplace and you find this offensive, then you have the right to ask them to stop.
- If you’ve already told someone to stop with the offensive language/actions and they don’t listen, follow the reporting policy set by your company. Make sure that you familiarize yourself with these guidelines from day one.
- Report any harassment to your immediate supervisor or your company’s human resources department. Any sexual harassment report should be investigated by the company with the details kept as confidential as possible. However, because of the nature of the complaint, other people may have to be informed of the details and the names of the people involved. Of course, this is expected to be done with discretion and on a need-to-know basis only.
What are the benefits of holding regular sexual harassment training as mandated by the law for both employers and employees?
- Everyone in the company is on the same page. A potential harasser will know what consequences await and a potential victim will know what courses of action to take.
- The employer reduces the risk of having low morale amongst its workforce. Obviously, someone being sexually harassed will be negatively affected; and the same goes for anyone who witnesses sexual harassment. When nothing is done about it or if it keeps on repeating, one can expect a negative impact on the work environment and the overall satisfaction of employees.
- Everyone is a step closer to feeling safe and protected because they know that the company does not condone sexual harassment in the workplace and it is being proactive in trying to prevent such unacceptable behavior.
- The training courses help discourage potential harassers and encourage potential victims to voice out their complaints using the right channels.
What prevents people from filing sexual harassment complaints?
In addition to not knowing what to do and not knowing that they are already going through sexual harassment, people also deal with certain fears that keep them from filing complaints.
- They fear that the harasser might retaliate. This includes the fear of personal safety.
- They fear that they might be seen as a troublemaker; and especially with bigger companies with very competitive environments, people know that being seen this way might cost them their ‘future’ with the company.
- The desire to handle the situation all by yourself.
- Embarrassment. Some people simply don’t want to be seen as a victim. Sadly, there are many people who feel this way.
Why should employers take the issue of sexual harassment seriously?
The issue of sexual harassment in the workplace is a serious matter which both employees and employers need to address accordingly. With or without the sexual harassment laws to abide by, and the sexual harassment training laws to help minimize sexual harassment cases, employers need to make sure their company is a safe place for their employees where everyone feels secure and protected. Not only that--people deserve to be respected regardless of gender or race or whether they are the frontliners or a top executive.
We all need to feel respected. But with sexual harassment seemingly being tolerated in the workplace and the employees feeling like the employer doesn’t care, people start to wonder about the importance the company gives its employees. This leads to a few problems:
- Harassment in the workplace has a negative impact on the productivity and morale of the employees. It is not just the victim who is affected. The whole situation affects those who are witnesses to the incident as well.
- Negative action with regards to employment happens--and who wants this? While a sexual harassment issue that is addressed sends a message that it is not being tolerated, it still requires negative employment action which might include one or more of the following--training or retraining to ensure any similar incident does not happen again, suspension (which will most likely be without pay), demotion or termination.
- There is also the possibility that the harasser will be personally liable in a lawsuit.
It is important to note that when a company does not take the required action/s after a complaint has been raised against someone, they also put themselves at risk of being sued for not looking into the matter. Although having a good Employment Practices Liability Insurance (EPLI) that covers both the employer and some key people might cushion the financial liabilities in terms of expenses relating to a sexual harassment lawsuit, it will still be best for everyone involved to actually avoid any sexual harassment from happening in the workplace.
Having training programs in place and having new hires take mandatory training on sexual harassment are both very good concrete steps to avoid sexual harassment at work. It is very important to make sure that all employees, including those in managerial or supervisory positions, are on the same page with regard to what sexual harassment constitutes and what the company’s policies are. Being educated about it helps potential harassers avoid that path and it helps potential victims have a better chance of seeing it coming. When a potential harasser knows that the potential victim has been trained on what needs to be done in these situations, the harasser might actually change his/her mind. Knowing that there are systems in place to avoid or stop sexual harassment in the workplace makes everyone in the company feel secure and protected. It not only boosts the company’s image, but it also boosts the morale of the entire workforce. In the end, everybody wins. A happy workforce will be more productive. It will be more conducive to having people work as a team. When everyone is productive, the company potentially earns more, and of course, everyone stands to benefit from this.
Most important of all, there is nothing better than knowing you’re doing the right thing--whether you’re the employer who provides a working environment that is a safe place for the employees, the employee who is aware of the effects your actions might have on your fellow employees and the company, or the employee who is empowered knowing what is acceptable and unacceptable in the workplace and knowing that there are courses of action that can be taken in the event sexual harassment does happen.