SEXual Harassment... The BIG Issue in the Workplace, part 1

Sunday, December 4, 2005 | 0

By Jamie Charter, M.S., CPDM

This is the first in a series of articles on this important subject. Through this article series, we will discuss sexual harassment, what it is, what it is not, some strategies, and work toward instituting measures to ensure that the workplace is a safe and respectful environment.

Did you know that effective January 1, 2005, AB 1825 went into effect in California? This law specifies that employers with 50 or more employees be required to provide mandatory sexual harassment training for managers and supervisors. The training requirement applies to all members of management, from front line supervisors to business owners and CEOs.

It is important to keep in mind that as of January 1, 2006, employers will be considered to be out of compliance if they have not documented that appropriate and mandatory training has been provided.

IS YOUR ORGANIZATION PREPARED?

AB 1825 requires "practical and interactive"anti-harassment training for supervisors and managers. How will your organization meet that requirement? In addition, do you know what the penalties will be for non-compliance?

AB 1825 sets specific quality standards for the required training. The training must be conducted via "classroom or other effective interactive training" and include the following topics:

* Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention of sexual harassment.

* Information about the correction of sexual harassment and the remedies available to victims of sexual harassment in employment.

* Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.

SEXUAL HARASSMENT: according to FEHAS DEFINITION:

State regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of prohibited behavior:

* Visual conduct: leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters.
* Verbal conduct: making or using derogatory comments, epithets, slurs and jokes. Verbal abuse of a sexual nature, graphic verbal commentaries about an individuals body, sexually degrading words used to describe an individual.
* Physical conduct: touching, assault, impeding or blocking movements.
* Offering employment benefits in exchange for sexual favors.
* Making or threatening retaliatory action after receiving a negative response to sexual advances.

However, is sexual harassment prevention training only important for California Employers? What about the rest of the states?

While California has been a forerunner in mandating this type of training, it has been suggested that other states will follow suit down the line.

Moreover, the U.S. Equal Employment Opportunity Commission mandates that employers with 15 or more employees provide training and ensure that sound policies are in place.

Sexual harassment is defined by the EEOC as a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. This pertains to state and local governments, and applies to employment agencies and to labor organizations, as well as to the federal government.

Some of the factors that constitute sexual harassment include: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when 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.

What is sexual Harassment?

The Equal Employment Opportunity Commission defines sexual harassment in the United States as follows:

Sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

* Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, or
* Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or
* Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

* The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
* The harasser can be the victim's supervisor, an agent of the employer, and a supervisor in another area, a co-worker, or a non-employee.
* The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
* Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
* The harasser's conduct must be unwelcome.

What can complicate the issue is that what is considered sexual harassment to one person may not be considered harassment to another. It is completely subject to interpretation. Sexual harassment is in the eye of the beholder. Employers are advised to take appropriate and proactive measures to assure that sexual harassment problems are brought forward and eliminated. Employer policies must be in place to provide employees a complaint procedure to reduce the likelihood of lawsuits.

What can you, as an employer do?

Take immediate measures to enhance your education on how to use appropriate discipline to discourage sexual harassment and how to properly investigate and remedy employee complaints of sexual harassment.

Remember: AB 1825 does not "discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination."

Therefore, it may be a prudent measure by employers to consider expanding the training program from the required two-hour format, to encompass other types of discrimination in the workplace, such as age, race and disability.

Time sensitive tip:

With the holidays rapidly approaching and parties on the horizon, the potential for sexual harassment incidents can greatly increase. Inhibitions can go down when alcohol is consumed, in a holiday festive and non-working environment. Some staff members can take on uncharacteristic, and even boorish behavior in this type of setting, not realizing the consequences to those around them.

Serving employees alcohol at company-sponsored parties and events has the potential of serious and sometimes tragic consequences for your staff and your organization.

To help avoid or minimize problems, you might consider not serving alcohol at your holiday celebration, although this may not be realistic. Perhaps developing strategies for limiting alcohol consumption at the event can be implemented, to reduce danger and liability.

Prevention is the best tool to eliminate sexual harassment in the workplace and employers are encouraged to take steps necessary to prevent sexual harassment from occurring. It is important to let your employees and supervisors know that sexual harassment will not be tolerated, zero tolerance!

Author Jamie Charter has been providing employment and litigation consulting services for 21 years through Charter and Company in Soquel, California and the Employment Resource Consultants. Jamie is Certified as a Professional in Disability Management, (CPDM) and is a State of California Independent Vocational Evaluator (IVE). Jamie is also an accomplished writer and editor, with many published articles in employment related issues in wide-reaching media arenas. Jamie can be reached at jcharter@calcentral.com.

-------------------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.