Understanding the Answers
And we’re back for lesson two of this three-lesson course on sexual harassment in the workplace.
Remember those statement questions that ended the last lesson? They went like this, with True, False, and Maybe as your optional answers:
- A male employee patting a female employee on the bottom is sexual harassment.
- Women who wear low-cut tops in the workplace are committing sexual harassment.
- Keeping a calendar of topless women in a firefighter's locker is sexual harassment.
As you now know, if you picked “True" for all three, congratulations: You scored a perfect ZERO!
On the other hand, if you picked “False" for each of the three questions, congratulations! You, too, got all of them wrong.
“Maybe" probably seemed like an unlikely answer, but, as you know now, “Maybe" was the best choice for all three.
Continue to learn why “Maybe" won the day.
Tom’s Take: Why Sexual Harassment Is So Difficult For Employers and Employees
You might find it interesting to know there isn’t a law against sexual harassment per se, at least, not on the federal level. Sexual harassment guidelines actually fall under the same set of statutes that protect people of different races, religions, nationalities, and other “protected” classes.
But one reason sexual harassment gets so much attention is the fact that guilt or innocence is, for the most part, in the eyes of the victim and not in the intent of the harasser.
Types of Sexual Harassment
Over the years, two recognized types of sexual harassment have developed. We’ll examine both in detail throughout this course. For now, I will provide an overview:
Hostile Work Environment
And Quid Pro Quo, which is Latin for “this for that.”
So, What Happened to Ashley?
You might remember Ashley from the beginning of this course.
You're probably wondering what happened to her to justify such a large award ($40M!). You might also be interested to know that her case was heard near St. Louis, MO, not in New York or California, where jury verdicts are known to be aggressive.
Ashley spent just over a year working for Aaron's Rents. The conduct she lived through was egregious: Over the course of the year, her store manager:
- gave her nicknames, such as “Trixie;"
- pinched her
- bought her clothing and chocolates
- sneaked up on her and grabbed her in the stockroom, and, eventually,
- sexually assaulted her.
Sounds like an easy case to win, and it was.
What Happened to Ani?
Ani's case is pretty simple, too.
Several of the doctors for whom she worked were involved in her harassment. Instead of saying “Hello,” one of the surgeons greeted everyone — including Ani — with the words, “I'm horny. Another told her she performed surgery “like a girl.” Another called her a “stupid chick.” One particular doctor repeatedly told her that she would “give in,” presumably to him.
Another easy case...
Note: When I say these were easy cases, I certainly don’t mean that the emotional burden was light, just that the details point to quick victories for the prosecution.
Bad Employees Can Be Victims, Too
You may have noticed in Ashley’s and Ani’s cases that nothing was mentioned about their on-the-job performance.
What if Ani wasn’t a good employee? What if her performance reviews were consistently substandard?
What if Ashley was about to get fired anyway for not meeting corporate requirements?
Here are a few things that are crucial to remember about sexual harassment and job performance:
First, work performance and sexual harassment don’t have anything to do with one another; they are completely separate. Put another way, it would not have mattered if Ashley had been fired before making the claim, or if Ani was the worst performer in the history of the organization.
The facts that constitute sexual harassment are independent of anything else!
Second, it is not uncommon for an employee to claim he or she was sexually harassed after they leave the company, sometimes even after being fired.
The terminated employee may not have vigorously objected to the off-color jokes in the workplace, or may have even participated in some of them. But once they get terminated, they may see a way to get back at the company, albeit after the fact. At any rate, as long as that person can prove the elements required, they can still win the case.
Finally, as an employee, this puts you in a difficult position. You and your friends may enjoy joking around like high-school teenagers at work. But, if another employee claims sexual harassment, your name is going to be right there. And your job may be on the line.
I am realistic: you aren’t likely to be a saint 8 hours a day, every day, around your co-workers. But you can make sure that your jokes and behaviors stay at home, when the workplace rules don’t apply.
The Surprising Information About Sexual Harassment Claims
In our first lesson, you took a short quiz. As you may recall, the correct answers were all “maybe.” If Ashley's and Ani's cases are so simple, why weren't those?
A company only becomes liable for sexual harassment if:
- They knew about it and didn't address it appropriately, or
- they should have known about it and didn't address it appropriately.
Ashley and Ani Both Reported Their Claims
In order for the company to be liable to Ashley, she had to report her claim, which she did. Ashley called the company hotline, left her name and phone number, and no one ever called her back.
In order for the doctors' group to be liable to Ani, she had to report it. She did. When she asked the managing physicians to do something,they laughed, thinking it was funny.
Even though an employee feels sexually harassed, the company isn't going to be held responsible unless the company knows (or should have known) about the behavior.
But, if you stop to think about it, this fact is the reason sexual harassment is such a dangerous area for employers!
Read on to learn more.
Knowing that sexual harassment is legally in the eyes of the person harassed, virtually any employee can commit sexual harassment, sometimes without even knowing it.
Here's a Scenario to Ponder
Steve is in his first supervisor role, and he's anxious to bond with his new employees. He commits to compliment every employee at least once a day. Stacy is a long-time female employee in whom Steve has no romantic interest. Each day Steve makes an effort to compliment her dress, hair, shoes, etc.
Unknown to Steve, these compliments make Stacy very uncomfortable, and she wonders why he is being so friendly to her (even though he is treating everyone the same).
At this point,is Steve's company liable for any sexual harassment? Probably not. Stacy has not given any indications to Steve or the company that the behavior is unwelcome or unwanted and the company has no reason to believe this is the case.
Finally, Stacy contacts the company human resources department and expresses her concerns.
At this point, is Steve's company liable for any sexual harassment? Again, probably not. Although the company is aware, it has not had an opportunity to investigate and take action.
But, if the company were to simply laugh off Stacy's claims, it may be liable in a sexual-harassment claim by Stacy.
If the company were to investigate it and counsel Steve, for example, the likelihood of a claim is drastically reduced.
If the company were to investigate it and determine that Steve was doing nothing wrong, it (and Steve) could still be held liable!
If a jury or judge found that Stacy was “reasonable” in her feelings, since the company did nothing, it would be held liable.