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Nov 13, 201812:46 PMOpen Mic

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Answers to 5 common questions about workplace sexual harassment

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In the wake of high-profile cases and hashtags, the U.S. Equal Employment Opportunity Commission (EEOC) recently reported that it received 12 percent more complaints of workplace sexual harassment in 2018 than it did in 2017. As a result, the agency filed 41 sexual harassment lawsuits in 2018 (an increase of more than 50 percent over 2017) and recovered nearly $70 million for victims through litigation and administrative enforcement (an increase of nearly $40 million).

As companies continue to grapple with cultures that have failed to prevent sexual harassment, many find themselves in a position of much-needed change. However, that change is complicated, and the people charged with driving it often have more questions than answers.

This article lists five of the most common questions employers have regarding sexual harassment, what it entails, and how to respond to complaints.

FAQ No. 1 — What is a “reasonable person”?

At the federal level, the legal definition of sexual harassment often hinges on how a “reasonable person” might interpret the behavior. Would said reasonable person find the behavior merely rude, or would he or she find it so offensive that it could interfere with job performance?

While it might seem odd that such important considerations are subject to such an imprecise standard, it’s actually a common practice in the legal landscape. So, what’s an employer to do?

First, consider that this reasonable individual would always view a situation in the legally appropriate way. That means that any behavior that is clearly defined as illegal (e.g., offers of rewards or threats of punishment in exchange for sex) would automatically qualify as harassment in the eyes of a reasonable person.

Second, when trying to assess what said reasonable person would think of a more complicated situation, envision him or her in the shoes of the person making the complaint. In the same scenario, would a similarly situated person without any previous knowledge of the people involved consider the behavior inappropriate? For instance, if the complainant is a female machine operator, don’t try to imagine how her male manager might interpret the situation. Instead, imagine being in her shoes because how she interprets the behavior is the single most important factor.

FAQ No. 2 — Wait, groping isn’t sexual harassment?

If an employee reports that she has been touched inappropriately, don’t hesitate to implement your sexual harassment policy. That said, the reported behavior might not qualify as sexual harassment at all.

It’s important to remember that sexual harassment takes only two legal forms: quid pro quo (requiring someone to endure harassment to avoid consequences or receive a benefit) and hostile work environment (prolonged exposure to harassing behavior). 

At first, these definitions seem to overlook the most obvious type of harassment: physical. However, acts such as groping actually fall under the category of sexual assault. If assault is reported, employers should immediately react to put an end to the behavior and report it to authorities, if necessary. 

That said, a climate that perpetuates or even encourages such behavior, or one that looks the other way when it happens, will almost certainly fall under the category of a hostile work environment, too.

FAQ No. 3 — Can a work environment be hostile but not sexual?

Employers often ask if the term “hostile work environment” can apply even if the offending behavior is not of a sexual nature. The short answer is yes, but the longer answer is, of course, more complicated.

First, remember that legal harassment only occurs when unlawful conduct is motivated by a protected characteristic, such as sex, age, race, religion, etc. If an employee is equally rude to everyone, it might make for a terrible work environment, but it’s not illegal. 

Imagine a particularly cranky floor manager who regularly demeans and swears at his subordinates. The culture this kind of behavior creates is sure to be unpleasant, and employees are likely to be pretty unhappy. However, unless the manager happens to be mistreating the employees solely because of their sex (or age, race, etc.), it’s not a hostile work environment because it’s not legal harassment.

Of course, this doesn’t mean your rude employee can’t be disciplined for the bad behavior. Ensure your internal policies address how to handle these bad actors.

(Continued)

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