The Types of Sexual Harassment

Sexual harassment-a type of sex discrimination that infringes Title VII of the Civil Rights Act (amended in 1991), unfortunately, continues to be rampant in the workplace today. In 1980, the Equal Employment Opportunity Commission (EEOC) characterises unlawful sexual harassment as: “unwelcome sexual advances, requests for sexual favours and verbal or physical conduct of a sexual nature”. In fact, an action comprises harassment when compliance with or denial of a particular indecent conduct impacts on an individual’s employment, a person’s performance at work which are then conducive to an intimidating and unpleasant environment. The harasser or the victim may be of the male or female gender. The intimidator can be the victim’s supervisor, a co-worker or even a non-employee.

The US Merit Systems Protection Board surveyed 23 000 federal employees and found that 42% of females and 15% of males have reported being sexually harassed (USMSPB, Sexual Harassment in the Federal Workplace-Is it a problem?(1981). It has also been found that it is mostly women who reported the cases. Yet, the number of men filing the case are rising significantly, the majority of them filing against their female supervisors. In 2007, 16 % of the complaints filed with EEOC come from men. In addition, in a research conducted by Lawyers.com and Glamour Magazine, 17% of men against 35% of women declared they were victims of sexual harassment (http://www.sexualharassmentsupport.org/SHworkplace.html,25.02.2010).The most common punishment for someone found guilty of harassment was either an official or an unofficial warning. Alarmingly, the next most likely outcome was no action whatsoever.

Our research first seeks to determine the impact of the law on sexual harassment-whether it’s really being implemented and what a person may risk while bringing the matter into courts. Secondly, in order to go in an in-depth analysis of sexual harassment in the workplace, we will see the types of sexual harassment that normally prevails. The research is designed to further analyse the problematic repercussions on the victims as sexual harassment entails a negative psychic, work and health outcomes. Lastly, we will bring up solutions to avert sexual harassment in the workplace.

Sexual Harassment and law.

Sexual harassment is an aspect of sex discrimination. Legally, sexual harassment is an “unwelcome, verbal, visual or physical conduct of sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment”.

According to Henslin & Nelson,(1996 p.300) sexual harassment refers to “undesired sexual advances be it touches, looks, force the person to have sex or even jokes”. Sexual harassment can be divided into 2 forms. The first one which is known as quid pro quo harassment, is concerning to the granting of a benefit, for example, a female employee is pressurized to have sex with her employer so as to get a promotion. The second kind of harassment is not linked to any privilege, however it results in an unfriendly working environment.

Laws are designed against sexual harassment to protect the employee from the boss, from co-workers or even customers at work. Legally workers are protected against workplace sexual harassment, under both state and federal law. Federal law gives solutions for workplace discrimination that are based upon Title VII in the Civil Rights Act of 1964. It applies to employers with fifteen or more employees.

To be able to bring forward an action for sexual harassment, the plaintiff must prove that:

1. The plaintiff found the conduct to be hostile, abusive or offensive, and

2. A reasonable person in the position of the plaintiff would consider the conduct to be hostile abusive or offensive.

So as to be able to file a complaint against workplace sexual harassment, it is not necessary that the plaintiff is a victim of the harassment. Normally, before a complainant can file a case based on sexual harassment, a complaint about the misconduct must be filed with an administration agency, by the plaintiff. Concerning federal complaint, they should be first filed with the Equal Employment Opportunity Commission (EEOC)

The Mauritian Women’s Affairs, Child Development and Family Welfare Minister, Arianne Navarre- Marie, had announced a legislation to prevent sexual harassment against female employees in the island.

“Men  who harass women sexually have no reason to stop until we denounce them” said Navarre-Marie in a forum at the University of Mauritius

Types of sexual harassment

The aim of this chapter is to help the reader identify the different types of sexual harassment to which people are prone in their daily life.

Before moving into the gist of the subject, it is important to understand the nature of sexual harassment.

As defined earlier, sexual harassment is an unwanted conduct (verbal, non-verbal or physical conduct of a sexual nature) that has the purpose or effect of violating her/his dignity and/or of creating an intimidating, hostile, degrading, humiliating or offensive environment. (Employment Equality (Sex Discrimination) Regulations, UK, 2005).

Sexual harassment has been generally accepted to take two forms(C.M. Hunt, M.J. Davidson, S.L. Fielden and H. Hoel,The Centre for Diversity and Equality at Work, Manchester Business School,The University of Manchester, Manchester, UK, Reviewing sexual harassment in the workplace –an intervention model, 2010) namely:

Quid Pro Quo; and

Hostile Environment.

Quid Pro Quo

Simply put, this illegal unwanted sexual behavior means This For That. Therefore, such a demeanor relates to a situation where an individual- the harasser- will explicitly or implicitly make sexual requests and /or advances in exchange for some desired result.

For example, Research has demonstrated that Quid Pro Quo behavior is usually utilized vis-à-vis a student/employee by a manager, faculty member, advisor, or administrator. The former is promised rewards or benefits such as a promotion or good grades in exchange for sexual favors. (Chia-Jeng Lu and Brian H. Kleiner, Discrimination and Harassment in the Restaurant Industry, International Journal of Sociology and Social Policy, 2001)

Hostile Environment

Secondly, sexual harassment occurs when the victim is faced with unwelcome conduct based on his or her sex. Such behavior can be verbal, non-verbal, visual, or physical. (This creates an uncomfortable, intimidating, hostile, or offensive work or learning environment.

Sexual harassment is a gender specific type of bullying. (Dan Riley,University of New England, Uralla, Australia; Deirdre J. Duncan, Australian Catholic University, Strathfield, Australia; and

John Edwards, Ryde, Australia; Staff bullying in Australian schools, 2010).

Indeed, the term bullying (Riley et al. (2009)), has been defined as “[. . .] repeated and persistent negative acts towards one or more individual(s) which involve a persistent power imbalance and create a hostile work environment.”

It therefore follows that there are several factors which contribute to creating a sexually hostile environment, which include the nature, frequency, period, and place of harassment.

Moreover, research suggests that sex, marital status, age and income of target are dominant sociodemographic influences with regards to sexual harassment. (Newman, Jackson, and Baker (2003))

Hostile Environment is, however, still much debated and is often termed the “grey area” (Smolensky and Kleiner, 2003, p. 60).

Sexual harassment is omnipresent. However, through our literature review, we have learnt that mostly sexual harassment behavior occurring at the workplace or in learning institutions have been duly reported or have been subject to research.

Sexual harassment at work

Sexual harassment is spreading like a malignant cancer in workplaces. It is seen as one of the most difficult and emotional issue that employers, employees and human resource professionals are facing today. In fact no profession or occupation is exempted from this problem. Sexual harassment goes far beyond one’s social background, educational level, age group or ethnic belonging. It touches all the layers of the population without any exception (Kim and Kleiner, 1999).

Workplace sexual harassment involves repeated verbal and non verbal behaviour of a sexual nature whereby the doer of such harassment knows or ought to know that such behaviour would have an effect on the dignity of the victim.

Sexual harassment at work can be of different forms; unwelcome staring, humiliating sexual remarks and comments, exposure to pictures of a pornographic nature, unnecessary touching, invitations for sexual affairs occasionally result in sexual assault or rape (Apodaca and Kleiner, 2001). In addition to this, workplace sexual harassment committed by a senior on a subordinate is very often accompanied by threats of dismissal in case of non compliance or by a promise of promotion or increase in salary to encourage compliance. Such sexual harassment can in fact take place in any professional context whereby colleagues at work meet, for instance at the office, at the factory, in a shop, at school, in a cafeteria, at meetings, conferences, on business trips or even in the company’s vehicle used by employees to go to work.

The majority of cases on sexual harassment which have been reported and brought before the Courts in different countries have arisen at the place of work and the diverse legislations passed in many countries deal principally with the problem of sexual harassment arising at the workplace. Thus we propose to confine the scope of this study to the field of employment, an area which can be studied in much more details.

As a matter of fact, sexual harassment happens when a person who is in a very powerful position uses his particular position to harass others who are in a vulnerable position. In other words, this would imply that someone who is at the top of the ladder uses his power to continuously troubles another person who is at the bottom of the hierarchical ladder of the organisation. Various international organizations, trade unions, women’s associations and other pressure groups have revealed that sexual harassment is becoming an alarming situation, especially in the field of employment (Crucet et al, 2010). Moreover, studies and surveys carried out in a number of industrialized countries have shown that its effects are long-term and harmful to the victims. Even though there is no legislation on sexual harassment in Mauritius as a distinct type of prohibited activity, still we have reasons to believe that the problem is widespread in our society.

Even at the start of this 22nd century, we cannot overlook the fact that sexual harassment in the workplace is perpetrated mainly and most of the time by male against female in a substantial number of cases (Das, 2009). There is not even the shadow of a doubt that generations of women still suffer from repeated undesirable attention of a sexual nature in the public environment be it at the workplace or in any other public place outside their work. However we cannot turn a blind eye also to the fact that although less frequent, men can also be victims of sexual harassment. Several studies have revealed that women are also sexually harassing men. Furthermore, nowadays we also find the same sex harassing each other, men harassing men and women harassing women respectively.

In fact sexual harassment is one of the most unpleasant and humiliating experiences an employee can suffer. For those who are its victims, it often produces ill-feelings and harms the victim’s health.

Consequences of Sexual harassment at work.

Sexual harassment has several consequences on the employee, whether psychological or health effects which may in turn have a negative impact on work. Figure 1 is an expansion of the integrated process model of the antecedents of sexual harassment and its consequences in working organisations (Adapted from Fitzgerald, Drasgow, Hulin, Gelfand and Magley 1997; Fitzgerald, Hulin ,Drasgow 1995). The working environment become hostile, some employees have to face public embarrassment, humiliation and even social gossip. Therefore, the reputation of the harassed employee is unfairly affected. This may lead to low job satisfaction and thus loss of job, as some employee may prefer to quit the job immediately or as soon as the find a better job. Some victims will loss income, recommendations, their career and will have to relocate to another job. Whereas others prefer to kept silent about the incident not only because they may find the situation too embarassing but also fearing that they will not find a better job opportunity or being sceptical concerning the availability of due process.

Many victims would report this event to their boss or human resource manager, however some argued that people who harass are usually within the top management while others may have recourse to legal actions. Sexual harassment at the workplace lead to low work performance as the harassed one may focus on dealing with the situation or this may be caused because of the psychological effects of harassment. There is also increased absenteeism and all this lead to a lower level of productivity, thus lost of money to the company. Human capital is negatively affected by the lost of valuable employees due to resignations to avoid harassment. Moreover, victims lose trust in environments alike to where the harassment happened and in the types of persons working in similar positions as the harasser or their colleagues.

Some of the psychological and health effect are are traumatic stress, depression, anxiety, loss of confidence and self esteem, self-blame, fatigue or loss of motivation, overall loss of trust in people, increased blood pressure, Eating disorders, feeling angry or violent towards the perpetrator, withdrawal and isolation, sexual dysfunction, attempts to commit suicide or suicidal thoughts , post-traumatic stress disorder. (UNFPA ,2005).

Solution for sexual harassment.

Sexual harassment is a wrongful conduct. It should not be tolerated in the workplace. Organisations are becoming increasingly aware of the negative impact of sexual harassment at work place. When sexual harassment occurs, it is the organisation’s priority to take corrective measures against the employees’ bad behaviour which might result in the negative publicity of the organisation. Sexual harassment is an issue which should be dealt by the organisation, rather than simply trying to make the individual develop skills to fight effectively against it. (Hunt et al., 2010 Adapted from Fitzgerald and Shullman). In the United States, for example, it is a legal requirement for companies to take immediate actions when it comes to sexual harassment. If not fulfilled, companies may be liable for damages.

Here are some ways following which organisations can correct a situation of sexual harassment:

Investigation

When there is sexual harassment, a prompt investigation should start. It should be a fair and just investigation (Sung, 2008). Below are some important points to consider while an investigation is taking place.

The investigator should not be biased. He should know and examine the whole situation before jumping to any conclusions. He should avoid siding with the complainant before carrying out a thorough investigation. The investigator may be held liable if the complaint is not dealt properly (Healthfield, 2000). In the case of Coyne v Home Office (2000), the tribunal found out that the employers had failed to deal promptly with Coyne’s allegation. They did not implement the anti sexual harassment policy effectively. The tribunal concluded that the employers’ investigation was bias and lacked independence.

The investigator should be a good listener- he should listen to the whole story, give the complainant the opportunity to relate everything in his/her own words. Furthermore, he should take notes of important facts like dates, time, places and witnesses (if any).

The investigator should be able to win the trust of the complainant because the latter has to be ensured that he/she is free from retaliation. Cases, like Morris v Oldham Country Fiscal Court (2000) where the Tribunal held that the employer was liable for retaliation, should be avoided at all cost. The harasser should be warned not to retaliate against the complainant.

The investigation should be private and confidential.

It is true that an effective investigation will boost the employee morale. It will help to contribute to a harassment free environment where the employees will be motivated to perform at their best.

Discipline

Companies should have disciplinary measures which will help in reducing sexual harassment and avoid future incidents of this nature in the work place. Discipline should act as a catalyst in the prevention and gradual elimination of sexual harassment. It should be clear to workers that this type of unethical behaviour will not be tolerated at work. There should be different rules to deal with different situations. For example, where minor cases of sexual harassment are concerned, the harasser can be reprimanded and warned. However, in extreme cases, severe disciplinary actions like termination, demotion, reduction of wages, suspension, transfer or reassignment should be taken without any hesitation (The U.S Equal Employment Opportunity Commission, 1999).

In the case of Minnich v Cooper Frams Inc (2002), the employer, Huston was found guilty of harassing female co workers. The Court held that Huston was liable for breach of discipline. In its decision, it held that Huston was suspended and “moved Huston when harassment continued and terminated his employment (twice) for sexually offensive and harassing behaviour.”

Counselling

Sexual harassment can devastate the victims. Once sexual harassment has taken place, the priority is to rehabilitate the victims. Counselling procedures should ensure that the victim’s life returns to normal as quickly and effectively as possible (Hunt et al., 2010 Adapted from Di Martino et al., 2003). Necessary support, psychological counselling and legal advice should be provided to the victims. It is not the responsibility of only the management but also of the employees to speak up and not allow them to be victimised. Counselling helps victims of sexual harassment to rebuild their trust and mental state. On the other side, it is also a golden opportunity to remind the harasser about the anti harassment policy and zero tolerance policy of the company. During counselling sessions, harassers can be educated and can also be helped to adopt a more professional approach to better deal with other workers. This will surely decrease the risk of stressful incidents and dissatisfaction in organisations.

Prevention.

The most effective way to deal with sexual harassment is prevention (Sung, 2008). Prevention implies keeping something form happening and in this case sexual harassment. Prevention of sexual harassment is the responsibility of both the employer and employee. Some forms of prevention to sexual harassment are:

Adopting sexual harassment policies

Provide training

Establishing complaints processes

1. Sexual Harassment policies

Sexual harassment policies help to prevent the occurrence of sexual harassment and also protect the organisation from being liable to damages it ever these incidents have occurred. Sexual harassment policy should be well – written, clear, quickly and easily accessible. The best way to make it accessible to employee is to incorporate it in the employee handbook. The sexual harassment policies should be effectively enforced.

2. Training.

A company can also prevent sexual harassment by sponsoring trainings (Sung, 2008 adapted from Bordeaux 2002; Raphan & Heeman, 1997). These training may help employees in dealing with sexual harassment and its consequences. These training should be carried out regularly. It can take place in classrooms or on the internet.

3. Channel for complaints.

In order to encourage employees to report sexual harassment it is advisable to establish channels for complaints. Reporting sexual harassment will discourage this form of behaviour. These complaints should be kept confidential and proper