DIVISION OF HUMAN RIGHTS
BOTH MALES AND FEMALES CAN BE VICTIMS OF SEXUAL HARASSMENT. SEXUAL HARASSMENT OCCURS WHEN:
Employment decisions are based upon acceptance or refusal of sexual advances. For example, a person is fired for having refused a sexual advance. This is called “quid pro quo” harassment, meaning “this for that.“
A working environment is so intimidating, patently offensive or sexually hostile as to hinder a person’s ability to do their work. A supervisor, co-worker or someone else whom the victim comes in contact on the job creates an abusive work environment or interferes with the employee’s work performance through words or deeds because of the victim’s gender. This is called “hostile environment” harassment.
WHAT EMPLOYERS MUST DO:
The Law prohibits harassment based on sex and once an employer is made aware of a sexual harassment situation, they must take action to correct the situation, no matter how trivial it may appear. The employer must:
1) Immediately investigate the allegations to find out what happened and take appropriate action.
2) Eliminate the harassing behavior by considering the severity of the alleged conduct and responding appropriately.
3) Conduct follow up interviews with the victim and the alleged harasser to tell them what is happening and why.
4) See to it that the work atmosphere remains free from sexual harassment.
5) The employer should not attempt to resolve the matter by putting the victim and alleged harasser in the same room together. Not only is this intimidating, it could be construed as retaliation.
6) The employer is not required to fire an alleged harasser.
WHAT HAS TO BE PROVEN:
In 1991 the Supreme Court adopted requirements for sexual harassment and employer liability. This means in order to win a sexual harassment claim, the victim must show:
He or she belongs to a protected group and was subject to unwelcome sexual harassment.
The harassment was based on sex and affected the victim’s employment.
The employer knew or should have known of the harassment and failed to take proper action.
Making sure it never happens in the first place is the best way to eliminate sexual harassment in the workplace. Employers should:
Take all steps necessary to prevent sexual harassment from occurring.
Have an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented.
Affirmatively raise the subject with all personnel, express strong disapproval and explain the sanctions for harassment.
SEXUAL HARASSMENT EXAMPLES:
AN ISSUE ABOUT APPEARANCES
Leonard works as a clerk typist for a large employer. He likes to wear jewelry, and his attire frequently includes earrings and necklaces. His boss, Margaret, thinks it’s “weird” that, as a man, Leonard wears jewelry and wants to be a clerical worker. She frequently makes sarcastic comments to him about his appearance and refers to him “jokingly” as her office boy. Leonard, who hopes to develop his career in the area of customer relations, applies for an open promotional position that would involve working in a “front desk” area, where he would interact with the public. Margaret tells Leonard that if he wants that job, he had better look “more normal” or else wait for a promotion to mailroom supervisor.
Question 1. Leonard’s boss is correct to tell him wearing jewelry is inappropriate for customer service positions. True or False?
FALSE: Leonard’s jewelry is only an issue because Margaret considers it unusual for a man to wear such jewelry. Therefore, her comments to Leonard constitute sex stereotyping.
Margaret also is “suspicious” that Leonard is gay, which she says she “doesn’t mind,” but she thinks Leonard is “secretive.” She starts asking him questions about his private life, such as “Are you married?” “Do you have a partner?” ”Do you have kids?” Leonard tries to respond politely “No” to all her questions but is becoming annoyed. Margaret starts gossiping with Leonard’s coworkers about his supposed sexual orientation.
Question 2. Leonard is the recipient of harassment on the basis of sex and sexual orientation. True or False?
TRUE: Leonard is harassed on the basis of sex because he is being harassed for failure to adhere to Margaret’s sex stereotypes.
Leonard is also harassed on the basis of his perceived sexual orientation. It does not matter whether or not Leonard is a gay man in order for him to have a claim for sexual orientation harassment.
Leonard might also be considered a target of harassment on the basis of gender identity, which is a form of sex and/or disability discrimination prohibited by the Human Rights Law. Leonard should report Margaret’s conduct, which is clearly a violation of the sexual harassment policy, to a person designated by his employer to receive complaints (i.e. his employer’s “designee”).
Leonard decides that he is not going to get a fair chance at the promotion under these circumstances, and he complains to the employer’s designee about Margaret’s behavior. The designee does an investigation and tells Margaret that Leonard’s jewelry is not in violation of any workplace rule, that she is to consider him for the position without regard for his gender, and that she must stop making harassing comments, asking Leonard intrusive questions, and gossiping about his personal life. Margaret stops her comments, questions, and gossiping, but she then recommends a woman be promoted to the open position. The woman promoted has much less experience than Leonard and lacks his two-year degree in customer relations from a community college.
Question 3. Leonard has likely been the target of discrimination on the basis of sex, sexual orientation and/or retaliation. True or False?
TRUE: We don’t know Margaret’s reason for not recommending Leonard for the promotion, but it is not looking good for Margaret. It appears that she is either biased against Leonard for the same reasons she harassed him, or she is retaliating because he complained, or both.
Leonard should speak further with the employer’s designee, and the circumstances of the promotion should be investigated. If it is found that Margaret had abused her supervisory authority by failing to fairly consider Leonard for the promotion, she should be subject to disciplinary action. This scenario shows that sometimes more severe action is needed in response to harassment complaints, in order to prevent discrimination in the future
TOO CLOSE FOR COMFORT:
Betty has noticed that her new boss, Sarah, leans extremely close to her when they are going over the reports that she prepares. She touches her hand or shoulder frequently as they discuss work. Betty tries to move away from her in these situations, but she doesn’t seem to get the message.
Question 1. Betty should just ignore Sarah’s behavior. True or False?
FALSE: If Betty is uncomfortable with Sarah’s behavior, she has options. If she feels comfortable doing so, she should tell Sarah to please back off because her closeness and touching make her uncomfortable. Another option is to complain directly to a person designated by her employer to receive complaints, who will speak with Sarah. Although this may not be sufficiently severe or pervasive to create an unlawful harassment situation (unless it was repeated by Sarah after she was told to stop), there is no reason for Betty to be uncomfortable in the workplace. There is no valid reason for Sarah to engage in this behavior.
Before Betty gets around to complaining, Sarah brushes up against her back in the conference room before a meeting. She is now getting really annoyed but still puts off doing anything about it. Later Sarah “traps” Betty in her office after they finish discussing work by standing between her and the door of the small office. Betty doesn’t know what to do, so she moves past her to get out. As she does so, Sarah runs her hand over Betty ’s breast.
Question 2. Sarah’s brushing up against Betty in the conference room could just be inadvertent and does not give Betty any additional grounds to complain about Sarah. True or False?
FALSE: Sarah is now engaging in a pattern of escalating behavior. Given the pattern of her “too close” and “touching” behavior, it is unlikely that this was inadvertent. Even before being “trapped” in Sarah’s office, Betty should have reported all of the behaviors she had experienced that had made her uncomfortable.
Question 3. Sarah touching Betty’s breast is inappropriate but is probably not unlawful harassment because it only happened once. True or False?
FALSE: Any type of sexual touching is very serious and does not need to be repeated to constitute sexual harassment. Betty should immediately report it without waiting for it to be repeated. Sarah can expect to receive formal discipline, including possible firing.
REMEDIES FOR EMPLOYMENT DISCRIMINATION:
Whenever discrimination is found, the goal of the law is to put the victim of discrimination in the same position (or nearly the same) that he or she would have been if the discrimination had never occurred.
The types of relief will depend upon the discriminatory action and the effect it had on the victim. For example, if someone is not selected for a job or a promotion because of discrimination, the remedy may include placement in the job and/or back pay and benefits the person would have received.
The employer also will be required to stop any discriminatory practices and take steps to prevent discrimination in the future.
A victim of discrimination also may be able to recover attorney’s fees, expert witness fees, and court costs.
AVAILABLE FORUMS FOR ADJUDICATING SEXUAL HARASSMENT COMPLAINTS
Preventing sexual harassment is everyone’s responsibility. GigglesWorld® Corporation cannot prevent or remedy sexual harassment unless it knows about it. Any employee, paid or unpaid intern or non-employee who has been subjected to behavior that may constitute sexual harassment is encouraged to report such behavior to a supervisor, manager or Tim Serino, President/CEO. Anyone who witnesses or becomes aware of potential instances of sexual harassment should report such behavior to a supervisor, manager or Tim Serino, President/CEO.
Reports of sexual harassment may be made verbally or in writing. A form for submission of a written complaint is attached to this Policy, and all employees are encouraged to use this complaint form. Employees who are reporting sexual harassment on behalf of other employees should use the complaint form and note that it is on another employee’s behalf.
All supervisors and managers who receive a complaint or information about suspected sexual harassment, observe what may be sexually harassing behavior or for any reason suspect that sexual harassment is occurring, are required to report such suspected sexual harassment to Tim Serino, President/CEO.
In addition to being subject to discipline if they engaged in sexually harassing conduct themselves, supervisors and managers will be subject to discipline for failing to report suspected sexual harassment or otherwise knowingly allowing sexual harassment to continue.
Supervisors and managers will also be subject to discipline for engaging in any retaliation.
Please ask any questions if you need any additional clarification on the
rules and laws of Sexual Harassment
Please remember to sign the Harassment policy on the following page. This will acknowledge your understanding of the policies set forth from GigglesWorld® Corporation and the State of New York