10 Things You Need to Know About Sexual Harassment
By Jennifer Brust
Despite increased awareness, sexual harassment remains a threat for workers across all industries in California.
The Equal Employment Opportunity Commission (EEOC) recorded close to 6,700 claims sexual harassment in 2017 alone.
Sexual harassment is not a new topic. California employers with more than 50 employees are already aware of the required sexual harassment training for supervisors. However, the state recently updated its sexual harassment legislation.
Any California employer with five or more employees must now provide anti-harassment training to all employees, which affects most small businesses in the state. Here are 10 things you should know about sexual harassment to protect your business and employees.
Table of Contents
1. Sexual Harassment Can Occur Outside of the Workplace
Modern technologies have provided new ways for people to harass others. Workers may now experience sexual harassment outside of the workplace due to the availability of social media and text messaging.
Employees may feel more comfortable engaging in an informal conversation online compared to in the workplace. However, this can also lead to harassment.
Harassment that occurs outside of the workplace is still harassment. Employers should act on complaints that occur virtually using the same procedures that they have in place for incidents that occur in the workplace.
2. The Laws Apply to More Than Just Workers
Under California’s Fair Employment and Housing Act (FEHA), employees are not the only ones legally protected against harassment. Employers must also provide a safe environment for interns, volunteers, and independent contractors.
Employers must also protect employees from harassment from nonemployees, such as customers and vendors. The law requires employers to address harassment incidents committed by nonemployees. If you fail to take immediate action, you may be held liable when the victim files a complaint or a lawsuit.
3. Leering at an Employee May Constitute Harassment
An employee or employer does not need to use words or touch an employee to harass them. The courts have ruled that leering at someone may be considered sexual harassment.
In the case of Billings v Town of Grafton (2008), the courts found that a supervisor had engaged in offensive harassment by staring at a female employee’s chest for several years.
This does not mean that staring at someone is sexual harassment. However, most people can recognize the difference between someone who is lost in thought and someone who is blatantly sizing someone up and down.
4. Employers Are Liable for Harassment Claims Involving Supervisors
Employers in California should consider prohibiting interoffice relationships, especially between supervisors and subordinates. Power dynamics can contribute to the determination of whether an action is considered sexual harassment.
For example, even if both parties agreed to consensual relations, a subordinate may still be a victim of sexual harassment when involved with a supervisor.
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5. One-Time Harassment Incidents Are Still Illegal
An employee accused of harassment may attempt to brush off the incident if it appears to be an isolated incident. However, even a one-time occurrence may be grounds for further action, such as filing a harassment claim.
Past court cases have concluded that employers may still be held liable for single incidents of assault or harassment. Employers must provide a reasonably safe work environment, which includes protecting against one-off incidents. There are no laws that require the incidents to be repeated or part of a pattern of harassment.
6. Sexual Harassment Does Not Need to Include Desire
Along with not requiring a pattern of harassment, the laws do not require sexual desire to be present. Making inappropriate comments is still a form of harassment, even if the harasser did not exhibit any type of sexual desire or intent.
Acting out of hostility toward someone due to their gender or sexual orientation is also considered sexual harassment. For example, an employee may be hostile and abusive to women and friendly with male coworkers. Their hostility may be considered a form of sexual harassment.
7. A Victim Does Not Need to Tell a Harasser to Stop
Many people have a false belief that the victim needs to tell the harasser to “stop” for the activity to be considered harassment. However, the victim has no obligation to confront the harasser. In many situations, the victim may not feel comfortable confronting the harasser directly.
Employees may be able to file a complaint against a coworker without having to tell the perpetrator to stop. It is the employer’s responsibility to resolve the issue without increasing the risk of harassment.
8. Employers Must Have a Policy for Receiving Complaints
The laws do not specify how an employee needs to file a complaint. Employees may submit the complaint in writing or verbally explain the issue to a supervisor or the HR department. Employers have the responsibility to respond to all complaints, no matter how they are received.
Under California laws, employers are also required to establish a written policy for handling complaints. The policy must include procedures for reporting complaints. Employees must also be informed of these policies and procedures.
Employees should also be aware that they do not need to report harassment incidents directly to their immediate supervisor. They can report the issue through whichever channel they feel most comfortable with.
9. Employers Cannot Guarantee Confidentiality
While employers can guarantee that they will address incidents of sexual harassment, they cannot guarantee the confidentiality of the employee.
When investigating a harassment claim, employers need to follow fair practices, which include giving the harasser the opportunity to address the allegations.
Allowing the harasser to respond to the claim typically requires the disclosure of the claimant’s identity. However, the victim should be protected against further harassment or retaliation and feel comfortable being able to file a claim.
10. Zero Tolerance Policies Offer Greater Protection
Some harassment policies include strict wording and lists of potential offences. However, prohibiting specific acts of harassment is not enough. Companies should adopt a zero-tolerance policy toward all forms of harassment.
Sexual harassment is an issue that every business must be aware of and take steps to prevent. If you want to ensure that your workplace is a harassment-free zone, do not hesitate to request advice from us.
Contact us today for more information on your obligations.
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