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Sexual Harassment Leads to Discrimination and Loss in Wages

Info: 4637 words (19 pages) Law Essay
Published: 22nd Jul 2019

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Jurisdiction(s): US Law

In recent years the topic of sexual harassment has become one of the most talked about in the press. Sexual harassment is a topical problem for many women, it not only leads to discrimination in labor, loss in wages, low productivity and stress, but also influences the general atmosphere of lawlessness and violence against women. Sexual harassment is more than just a claim of sexual favors. If the actions of others create a hostile or tense working environment and have sexual overtones, they can also be characterized by the term “sexual harassment”.

With the global trend to eliminate any forms of discrimination and harassment, sexual harassment, including it in the field of labor relations, is seen as one of the priorities of modern society. Now companies around the world face the task to ensure decent working conditions for their employees in an environment free from harassment. In cross-cultural companies, it’s rather difficult because of the peculiarities of the mentality and the differences in cultural practices, but it is necessary to solve the problem of sexual harassment because without it further harmonious development of our society is impossible.

Sexual Harassment is any unwanted attention of a sexual nature at workplace, which makes a person feel uncomfortable and offended, creating discomfort and preventing the performance of his official duties (Aggarwal 2001). Sexual harassment in the workplace is not only a threat, because of which the victim has either to submit to sexual demands or to suffer from consequences, but also scabrous jokes, anecdotes, hints, indecent touching – any actions that are unacceptable to a regular employee. An employee has the right to expect certain standards of behavior at work, which should not include sexual oriented behavior.

The main characteristic of sexual harassment is the undesirability of certain signs of attention. Even the flowers, love letters, phone calls, compliments, and songs can be considered as sexual harassment if they are unwanted (Roux 2005).

The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as:

– Sexual offers, demands of “sexual services” and other verbal or physical actions of a sexual nature, put forward as a condition of hiring or saving the job;

– When forced consent or refusal of employee from these proposals influence the decision of hiring or saving a job;

– When the purpose or effect of such actions is the impact on productivity or creating of intimidating, hostile or offensive workplace environment.

Some examples of sexual harassment:

Verbal: sexual innuendo, insinuations, insults, threats, jokes about sex characteristics, sexual proposals.

Nonverbal: significant looks, offensive or indecent sounds, obscene gestures.

Physical: touching, pinching, stroking, sexual coercion or attempted rape.

The acts of sexual nature include:

– Unpleasant or undesirable for an employee action and proposals, including sex, slap on any part of the body, tingling, stroking, hugging and kissing, fondling or any other similar physical contact committed without the desire of an employee.

– Unwanted requests and demands of a sexual nature. These are bright or poorly expressed expectations, the demands of a sexual nature (including the requirement of dating), regardless of whether they are accompanied by implied or open promise of benefits or adverse effects at workplace.

– Verbal abuse or jokes, including verbal insults and jokes of a sexual nature, unpleasant for an employee. These include statements about nationality, race, shape or appearance when such comments go beyond common courtesy, “greasy” anecdotes, any vulgar comments, or hints of sexual content, foul and abusive for others.

– Creation of intimidating, hostile, intolerable or offensive working environment by unpleasant or undesirable for the employee conversations, suggestions, requests, demands, physical contacts or displays of attention, sexual or other inappropriate content (Conte 2000).

Sexual harassment in the workplace is more and more discussed by the media and the public. This phenomenon is not fundamentally new. However, in the past this issue was considered a personal, individual problem or was just denied, so it didn’t leave any other choice to the victim, but dismissal. With the increasing number of working women sexual harassment has become so common that it was considered a violation of individual rights, and silence surrounding this phenomenon was destroyed.

In the United States of America attention to the problem of sexual harassment has a relatively short history. In 1964, Congress passed the Civil Rights Act, which established the illegality of discrimination based on race, religion and ethnicity. Ironically, the gender discrimination appeared in the law only at the last moment. However, that complement had not only the overall positive impact on the approval of the position of women in American society, but, in particular, became the legal basis for the formation of attitudes towards the phenomenon of sexual harassment. The very notion of sexual harassment appeared in 1974 during the review in a court on a case about the physician’s assistant, who was forced to leave her job because of boss’s harassment (De Haas 2010).

In mid-1970’s, already several similar cases were in court. In 1986 the U.S. Supreme Court first recognized that sexual harassment was a form of sexual discrimination. After six years in the U.S. happened the first political scandal on that basis. In 1992, ten former staff members of Senator Robert Packwood and employees of lobbying companies, told the Washington Post, that during several years they had been the subject of sexual harassment of Packwood. Ethics Committee of the U.S. Senate, which held its investigation, found that there were 17 victims and recommended to deny Packwood’s eligible to be a representative of the highest legislative organ of the United States. The senator was forced to finish his political career in 1995 and engaged in consulting business. The criminal case against him was dismissed (Benavides 2010).

The first of the scandals that have affected corporate America, were the events that happened in a large law firm Baker & McKenzie. Secretary of Martin Greenstein, a partner and the most important source of income of the firm, couldn’t handle his harassment and sued him in court. Once it was known, to the point of Rina Wicks was joined by 6 other women. All of them were former employee Greenstein, who were forced to leave their jobs as a result of his rude behavior. Women told that while they work, Greenstein made inappropriate and rude remarks on sexual topics, obscene jokes, grabbed them lower back and strongly suggested to have sex with him. He swore constantly, no matter how well they executed his assignments. Almost all employees of Baker & McKenzie who sued Greenstein complained about the boss’s abusive behavior to the management of the company, but these complaints had no effect. In 1994, the court ruled that Baker and McKenzie were required to pay the victim Rina Wicks $ 7 million in damages caused by Greenstein. Through the efforts of lawyers of the defendant, the amount was cut almost in half (Pruett 2001).

In 1995, the American public witnessed another historic trial on a sexual theme. Dan Vassong, general manager of a famous company Dell Laboratories, at first behaved like a gentlemanwith his secretaries. Then he changed. Vassong was not just slapping women on the back and below, while holding the lewd jokes, but also walked around the office with his pants unbuttoned, publicly scratching his genitals. No wonder that personnel changed very often in his office. While preparation for the hearings there were found more than 30 former Vassong’s subordinates who resigned only because of the behavior of the boss. One of them decided to fight for justice and was rewarded: she and several other victims received $ 1.2 million of compensation. As in the previous case, the injured employee reported about the behavior of the boss to HR manager. But the response was not followed. The court ruled that Dell Laboratories had to conduct special training for the firm’s management to teach managers the rules of decent behavior. However, Vassong retained his post and stayed in board of directors of the company.

In 2004, Governor of New Jersey, James McGreevey was accused in sexual harassment. He was married twice, had two children, but was accused of sexually molesting to a man. Israeli Golan Tsipel through patronage of McGreevey had been appointed as the adviser of the governor on security matters, despite the fact that he had never worked in that field before. Tsipel later accused the governor of constant sexual harassment. As a result of the scandal, McGreevey resigned after admitting that he was homosexual and that he had sex with Tsipel “by mutual consent” (Fairchild 2010).

According to the U.S. state Commission on Equal Opportunities in employment in 2003 there were registered 13,566 complaints from victims of sexual harassment in the workplace (14 396 claims – in 2002, 15,475 claims – in 2001). Whereas, in 1990, there were recorded 10 000 532 cases of such kind. These figures show that in the U.S. over the past 10 years the number of sexual harassment in the workplace has increased by 127 percent. Year from year approximately 15% of claims are served by men. However, the statistics shows that about half the victims of sexual harassment have not been able to produce enough evidence (Toker 2010).

Americans view sexual harassment in the workplace as discrimination based on gender identity and pursue it in federal law. Most often it is the “Act on Civil Rights.” In addition to this act, each state has its own legislation that defines sexual harassment as punishable discrimination.

However, according to statistics collected by the Commission, not all of these scenarios end in court. Out of the 15 475 thousand men and women who have decided to legally prosecute their abusers in 2001, 7309 of them were unable to prove that they really were victims of sexual harassment. This amounts more than 47 percent. For comparison, in 1990 the number of cases where there was no “corpus delicti”, amounted 28.5 percent.

Recently, people have become more sensitive to what they consider to be of sexual origin, though to prove sex discrimination in court is still quite difficult. The results of various opinion polls show that during the life 40 – 70% of women and 10 – 20 % of men experience sexual harassment in the workplace.

The number of men, who have been sexually harassed, according to the EEOC, has risen from 7.5% in 1991 to 12% in 1999. Looking not enough courageous men, who became the subject of crude jokes and insults from colleagues, are also victims of sexual harassment. The number of men, who were harassed by homosexuals, is also included to the “man’s” statistics. Over the last decade a common situation of creating the “hostile atmosphere” made by women has become a situation when female colleagues describe in detail their sexual adventures in the office, creating an awkward situation for their male colleagues.

It is necessary to clarify that the issue of sexual harassment in workplace exists not only in the US but in other countries also. According to a joint study of Ipsos and Reuters, sexual harassment in workplace was felt by:

• 26% of workers in India (Chaudhuri 2006);

• 18% of workers in China;

• 16% of workers in Saudi Arabia;

• 10% of workers in South Africa;

• 9% of workers in Italy;

• 8% of workers in Brazil, USA;

• 3% of workers in Sweden, France (Koritsas 2010).

It is also known that sexual harassment at workplace is a serious problem in Turkey. Despite a series of laws that have been adopted to protect the rights of women facing sexual harassment in the workplace, the problem has not disappeared. For a long time there was no serious punishment for sexual harassment at work in Turkey, though, this problem was widespread. Only the amendments to the Turkish Penal Code in 2005, defined that sexual harassment, meaning “any harassment with sexual intentions, cause a prison term up to four years”. Previously, this period of imprisonment was two times less (Sakallı-Uğurlu 2010).

The topic of sexual harassment in the workplace is burning and studied a lot. In 1981 and 1988 the U.S. Department of Labor Achievements conducted a study and concluded that 42% of women suffered from sexual harassment at work. The survey among the staff of the military departments in 1990 showed that 66% of female staff suffered from sexual harassment. The popular women’s magazine Redbook in a survey of 1980 confirmed that 80% female employees experienced it. With regard to working women in major U.S. universities, 5% have reported about sex offers and 10% said that they were touched, rubbed, grabbed or kissed, and besides, 15% reported about other forms of such behavior (Lang 2009).

Less than 20% of all respondents reported about an incident to the manager; 30% were afraid that it would cause them problems, and 24% did not want to harm the infringer. Only 3% have tried to complain. Most women felt that they would not be believed, and did not want to create problems and being known as scandalous. Investigation of sexual harassment in the automotive industry found that Afro American women were harassed not only more frequently but more severely in fact, than white women. In general, women of other ethnicity groups suffered from harassment stronger than whites. The most flagrant sexual harassment cases were noticed among workers in the fields of physical labor, where men are strongly against the presence of women. These facts prove that the problem of sexual harassment in culturally diverse workplace is even more topical and there are more challenges in preventing it (Benagiano 2010).

Trying to discuss ways to solve this problem, it is worth recalling that in the United States this issue has found a legislative solution a long time ago. Already in 1991 the problem of sexual harassment in the workplace was reflected in the Act on Civil Rights, and later the instructions how to combat discrimination and sexual harassment in the U.S. Air Force were published.

Nowadays the government places the blame for sexual harassment not only on a guilty person, but on the company in which it happened. If the verdict of the court announces the company guilty, it is obliged to pay large sums in compensation. However, litigation is presented only to the companies in which HR managers are aware of what is happening, but don’t pat attention to the actions of their employees, or don’t take measures that can change the situation. Those institutions that do not “know” that is happening and don’t have written complaints from affected employees can not be subjects to prosecution (Lightle 2007).

Now, most American companies appertain to the problem of sexual harassment in workplace very seriously and take precautions. For example, new employees before they start work are obliged to read a brochure about sexual harassment in the workplace and sign a document, proving that they understand what policy the company adheres to.

A study conducted by the American Society for Human Resource Management (SHRM) in 1999, showed that 62% of US companies organize special training for their staff with a detailed description of all aspects of sexual harassment, while 97% have available written instructions on the same topic with which employees are introduced by HR managers in the hiring process (Blackstone 2009).

Am important form of management and prevention of sexual violence at work is its monitoring. Therefore, there is a good organized control system in universities, schools, government agencies and private enterprises. It is believed that approximately 75% of all US companies have a control service of the facts of sexual harassment that helps to prevent harassment (Boyd 2010).

The problem of sexual harassment in workplace is burning in Europe also. Studies show that an offense of this kind is not a rare phenomenon, but rather unpleasant and unavoidable aspect of working life of millions of women in Europe. This is seen as a major obstacle to the integration of women into the labor market. The European Commission already twice (1991 and 1993) addressed this issue by taking appropriate recommendations. The main task of these recommendations was to make clear to members of the European Union, the fact of differing of sexual harassment and the principle of equal treatment that recorded in the Equal Treatment Directive, adopted in 1976 by ​​the European Court of Justice. In accordance with these recommendations, the national legislation of States Parties of the European Union was clarified (Ménard 2010).

The struggle against sexual harassment is hold in all countries. After the Beijing Conference, several countries have enacted laws to protect women from abusive behavior against them and promote equal rights between men and women at work. In 1998, Sweden amended the Equal Opportunity Act to increase the obligations of the employer to prevent sexual harassment in the workplace. Belize and India adopted guidelines or laws aimed at preventing sexual harassment in the workplace. In 1998, the Canadian Human Rights Commission has developed a model policy against sexual harassment, which was handed to employers. The plan of “Equal opportunities for women and men in employment”, under which government, private sector and trade unions committed themselves to develop a mechanism for ensuring equal opportunities, was adopted in Argentina. The new Albanian Constitution, adopted in 1998, establishes the principle of equal rights between men and women in the workplace (Boland 2005).

The report of the Department of Public Information of the United Nations describes the four World Conferences on Women (1975-1995) and proves that at the international level government is working to ensure equality and non discrimination in the workplace and the whole society. The report proves that all regions made progress in strengthening the legal framework for ensuring equality and liquidation of sexual harassment in workplace. The mechanisms to address violations of human rights started to work actively; more and more courts in different countries actively monitor the human rights of women in workplace. Governments also recognized the need to reinforce legislation with other measures, including social reforms to de facto enforce women’s human rights and rights for safe work without sexual harassment.

Eritrea, Ethiopia, Morocco and Poland, for instance, reinforced the regulations of their constitution guaranteeing equality between women and men and protect women’s human rights in workplace. In Oman, women’s political rights were expanded in 1997 when they were granted the right to vote. Monaco and the Republic of Korea are among countries, deleted from the discriminatory regulations of national laws that infringe upon the rights of women in workplace (Haas 2010).

In a report of the General Assembly, the Human Rights Council assessed the actions of various countries to combat sexual harassment in the workplace. It says that in 2006, Council noted with concern the extent, intensity and widespread nature of violence against women, particularly sexual violence, possibly due to the prevailing gender stereotypes and patriarchal culture. It asked Jamaica to develop and implement a comprehensive strategy of combating violence against women in the workplace and its eradication, punish offenders and provide services to victims, ensure the implementation and effective enforcement of existing laws and speedy adoption and implementation of pending legislation to establish monitoring mechanisms and evaluation in order to assess regularly the impact and effectiveness of law enforcement and programs to prevent and combat violence against women in the workplace (General Assembly Report 2010).

Implementing the measures to avoid cases of sexual harassment at workplace, there is a need to understand that women are more often sexually abused than man and they can start with reading special literature to protect themselves. Most of brochures mention that in order to avoid this kind of violence they should be more confident. They should clearly explain their colleagues that sex is incompatible with work. New colleagues should not exhibit familiarity, it can be misconstrued. For employees it is better to maintain the smooth, friendly relations with superiors, regardless of their gender.

Managing and preventing sexual harassment at workplace, companies should create a working environment in which there will be no place for any type of harassment; they should implement the policy prohibiting sexual harassment, educate employees telling about the principles of this policy and establish a system of complaints of such behavior. Managers should always be aware of events occurring during the working process. Companies should provide special training and explain how to avoid sexual harassment at workplace.

Trade unions should fix policies in collective agreements, to develop internal policies, provide training to workers and managers of the unions, to develop its complaints system, and represent employees who have claims against the company.

Not all countries have well-developed system of controls and penalties for sexual harassment in the workplace. For example, in Russia there are no mechanisms to analyze in pre-trial order the case of sexual harassment at workplace. As a part of the struggle against this type of violation, there is a need to create necessary mechanisms. The institution of sexual harassment in the workplace requires fundamental development, together with criminal, administrative and civil law. It is helpful to use the existent experience of those countries where society and state pays more attention to this problem, for example the United States and Canada.

U.S. courts impose liability for participating, abetting and encouraging of sexual harassment in the workplace. The aim of this is to make the governing and administrative staff be more attentive to the behaviors of their employees, be able to stop the discrimination or sexual harassment against the employee. So, the employer is responsible for sexual harassment of all persons under his authority. Canada has the similar approach to this phenomenon.

Every American worker should be familiar with the widespread U.S. reminder on safety and how to protect themselves from sexual harassment. It states that it is written in accordance with and texts of the US Civil Rights Act of 1991, the recommendations of the Federal Commission on Equal Opportunity of U.S. workers, instructions on discrimination and sexual harassment in the U.S. Air Force, instructions of American Department of Labor.

To Manage and Prevent Sexual Harassment in a Culturally Diverse Workplace is not so easy. The main challenge in this process is the need to take into account the fact that there are cultural differences in understanding such phenomena as sexual harassment. Companies can feel difficulties in managing employees from culturally diverse backgrounds. The top managers of culturally diverse companies should pass special training and learn cultural differences in management styles, in particular the manager-subordinate relationship. The challenge of managing of multicultural company includes the understating of cultural differences in the work ethic and business culture. The cases of sexual harassment and other conflicts between employees should be solved from point of view of different cultures. There can be a great cultural difference between employees in a culturally diverse workplace and all employees should be instructed about the differences in communication styles (verbal and nonverbal).

All employers while providing sexual harassment policy in their companies should remember that there is no unique standard expected of employers in “taking all reasonable steps”, but at as minimum all employers would generally be required to have the proper sexual harassment policy which all workplace participants are monitored and communicated and to take right remedial action if sexual harassment occurs.

Policies and procedures that prevent any kind of harassment help employers in maintaining constructive workplace relationships and can improve employee motivation and performance encouraging him. In managing sexual harassment in the workplace an employer may also have obligations under other laws, such as privacy, defamation, occupational health and safety and industrial laws (WorkSafe Act 2010).

Sexual harassment is a burning problem for many employees, especially female; it leads not only to discrimination against labor, lost of wages, low productivity and stress, but also contributes to the general atmosphere of lawlessness and violent behavior against female employees. The struggle against sexual harassment in the US was long and difficult. The first women, who dared to start it, were paying dearly for it. They were paying anyway, regardless of whether they have kept silent or spoke in on their own defense.

. In fact, the problem of sexual harassment in the workplace is very serious and our society tries to solve it. In the late 90`s the United States amendment the law, according to which the victim of sexual harassment might receive compensation for moral harm. This number annually reaches about a billion of dollars. Moreover, the lawsuit may be imputed not only to the offender but also to the management of the company for allowing such a disgrace inside it.

Nowadays, a lot of measures are implemented to prevent and combat sexual harassment in the workplace. Companies are responsible for the actions of their employees and therefore control their actions. In most companies provide training for their employees, making them watch special training and informative videos or read brochures about standards of conduct at workplace. The company informs employees about the rules of conduct and consequences in case of sexual harassment. Also, many companies reduce the level of such situations by making glassy doors, which makes the atmosphere in the company transparent. Likewise, many companies have a person responsible for monitoring this matter and who can help in a difficult situation, not bringing it to court. Apart from all these, the policy in the sphere of sexual harassment is improved at national and international level; new laws are adopted. However, there is difficulty in dealing with sexual harassment in a culturally diverse workplace, due to the fact that the norms of behavior and customs of one culture may differ from the norms of behavior of another. All these difficulties should be won through in order to solve the problem of sexual harassment in the workplace once and forever, so that all members of society feel secure at work, home, everywhere…

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