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≥90% of participants identify and appropriately respond to sexual harassment in the workplace.
After completing this continuing education course, the participant will be able to meet the following objectives:
Sexual harassment is a universal, prevalent, destructive, and sometimes tolerated occurrence in all occupations. Instances occur daily in business, education, industry, the military, medicine, and religious organizations.1 The harasser can be a direct supervisor, a supervisor in another area, a co-worker, or someone outside of the organization. Sexual harassment is a legal, safety, ethical, and social issue. Zero tolerance is expected, and incidents are subject to swift disciplinary action without retaliation.
The American Nurses Association, National Academies of Sciences, Engineering, and Medicine and the National Institutes of Health are three of many organizations that endorse a harassment-free workplace and recommend education on prevention.2-6
The California (CA) State regulations define sexual harassment as7:
This definition includes many forms of offensive behavior and includes gender-based harassment of a person of the same sex as the harasser. The following is a partial list of prohibited behavior7,8:
The harassment must be severe or pervasive to be unlawful. That means that it alters the conditions of your employment and creates an abusive work environment. A single act of harassment may be sufficiently severe to be unlawful.8
The definition of abusive conduct is when an employer or employee in the workplace acts with malice, that a reasonable person would find9:
Abusive conduct may include9:
A single act shall not constitute abusive conduct, unless especially severe and egregious.
Quid pro quo is a type of sexual harassment that occurs where a person in authority, such as a supervisor, conditions sexual favors in return for employment benefits (i.e., scheduling, performance appraisal, continued employment).
A legal case, Faragher v. The city of Boca Raton, provides the background for understanding the legal framework for quid pro quo. Beth Ann Faragher, a lifeguard, complained that her supervisors, Bill Terry and David Silverman, touched her inappropriately and made improper comments. For example, Faragher reported that Silverman had warned her to date him or clean the toilets for a year. Additionally, another female lifeguard, Nancy Ewanchew, complained to the City's Personnel Director, but after filing a complaint, the jeering did not stop.
The outcome of the lawsuit was that the City was held responsible for the supervisors' actions. The court of law decided that the supervisors were granted virtually unchecked authority over their subordinates. Further, the courts decided that the City did not exercise reasonable care to prevent the supervisors' harassing conduct.10
Ken is the manager of a medical-surgical unit in a large metropolitan hospital in Illinois. He has been in this position for a year and is newly divorced. Jenny is a recent graduate and a new nurse on the unit who has just completed her three-month orientation and probationary period.
Ken has commented on how well Jenny fills out her scrub suit and frequently tells her how pretty she is. Ken requests that Jenny come over to his apartment for a candle-light dinner to discuss her three-month performance appraisal. He claims to be a very good cook.
Jenny is irritated with Ken's comments about her body and avoids him as much as possible. She has not asked him to stop his offensive remarks because she does not want to confront her boss. She does not want to go to his place for dinner but is conflicted because she needs her job and fears reprisals if she does not meet with him as requested. What should Jenny do?
Employees should document all instances of uncomfortable behavior, including time, date, and a factual description of the event. Include the names of any witnesses. Additionally, employees should include in their notes, any measures they took, such as asking the harasser to stop making comments. Notes facilitate the reporting process. Employees may also report incidences to several sources, not just one.
Employers must implement a tangible action policy and procedure to prevent sexual harassment. The plan must include investigation procedures and disciplinary measures for those found to be harassers.10 Sexual harassment procedures and disciplinary actions must be communicated to all employees and strictly enforced. Supervisors must be ready to receive and research complaints of harassment. They must be on guard to identify it and should take immediate steps to stop it. Discipline typically includes education, demotion, suspension, transfer, and possibly termination.
If an onlooker is subjected passively to offensive behavior and is uncomfortable, it is indirect sexual harassment because the work environment is perceived as hostile. An employee who is not precisely the target of any sexual harassment may have a valid claim to sexual harassment. Workplace sexual harassment, both direct and indirect, has been linked to emotional issues, such as downheartedness and anxiety, and may contribute to the development of burnout and depression among victims.11
Court cases such as Davis v. Monroe County Board of Education confirm that educational institutions can be held liable for student-on-student or teacher-to-student harassment when the:
Ms. Powell, a new clinical instructor in a baccalaureate program, frequently makes sexual comments to Chuck, one of her students. She asks him about his dates and if he took his dates to bed. She remarks about his firm muscles and his sexy physique. Chuck seems to get the best assignments, that is, the most interesting patients, and Ms. Powell spends a large amount of time helping him.
Chuck laughs at Ms. Powell when she makes sexual remarks and seems to find her comments entertaining. He is not offended. In fact, he seems to relish the attention and flirts with her when they eat lunch together.
Victoria, another student in the class, overhears Ms. Powell's comments to Chuck and finds them offensive and distracting. She is afraid of making mistakes because of the distraction. Victoria has not been sleeping well and is anxious about the situation. She is considering asking the Director to assign her to another instructor. She is afraid if she says anything to Ms. Powell directly, in case her grade suffers.
Is Chuck a victim of sexual harassment? Is Victoria a victim of sexual harassment, although the instructor's comments are not directed toward her? What actions should be taken?
Because Chuck is not offended or annoyed by Ms. Powell's behavior, he is not a victim of sexual harassment. Sexual harassment occurs when someone objects or finds the behavior uncomfortable or intolerable, such as Victoria. Victoria is a victim of sexual harassment, although the instructor's comments are not directed toward her.
Victoria reports Ms. Powell's behavior to the Director. The Director, Mrs. Nuttall, becomes accountable once she hears what Victoria has to say. Following policy, Mrs. Nuttall investigates by interviewing other students in the class who confirm Ms. Powell's seductive utterances to Chuck. Mrs. Nuttall also interviews Chuck, who collaborates with the statements of the other student nurses and confirms that he is not offended. Mrs. Nuttall completes an occurrence report and makes an appointment with the Dean. The Dean disciplines Ms. Powell by giving her a week off without pay. The Dean makes it mandatory that Ms. Powell complete a three-hour remedial sexual harassment education course before returning to work.
What happens if Mrs. Nuttall's actions are incomplete? For example, what happens if Mrs. Nuttall transfers Victoria to another instructor, but does not follow the policy of investigating and reporting the occurrence to the Dean? If Mrs. Nuttall or the Dean does not take proper steps to stop the unpleasant behavior, Mrs. Powell's behavior could continue and offend other students. Other students could file lawsuits and may be successful since the school had prior knowledge and did not act appropriately. Students, who experience or witness sexual harassment, may seek monetary compensation in lawsuits brought under Title IX of the Education Amendments of 1972.13
Bobby is a mid-age. Audra is a 21-year-old student who has lived a sheltered life in a rural, religious setting. Bobby continually seeks Audra's attention during class breaks and school activities. Audra makes an appointment with the Dean and reports that Bobby has tried to kiss her and touch her breasts. Further, Audra reports that Bobby repeatedly asks her for dates and has sent her text messages and emails asking her for sex. Audra wants to withdraw from school because she is so uncomfortable.
How should the Dean handle this situation?
The Dean asks Audra why she wants to withdraw and learns about Bobby's inappropriate behavior. Audra shows the Dean the offensive text messages and emails.
The Dean takes Audra's complaint seriously and instructs her to use the following phrases, in a calm but firm voice, if Bobby harasses her again.
"What you are saying makes me uncomfortable. Please stop right now."
Or
"Stop harassing me. I am going to the Dean right now."
As part of the investigation, the Dean interviews Bobby, who confesses to flirting heavily with Audra. Following school policy, the Dean tells Bobby to stop and puts him on probation. The Dean writes a descriptive narrative for Bobby's file and requests that Bobby sign a written agreement indicating that he understands he will be dismissed from school for any further violations. Bobby complies, and no further incidents are reported.
While the majority of reported cases of sexual harassment involve a male harassing a female, the situation could be reversed. For example, Audra could harass Bobby. Additionally, harassment can occur between members of the same sex. Students who do not want to report matters to school officials may contact the US Department of Education's Office of Civil Rights (OCR). Information is available on their webpage. The Department of Education requests that complaints are filed within 180 days of the alleged harassment.
The CA Fair Employment and Housing Act (FEHA) prohibits workplace wrongful behaviors of14:
FEHA also requires employers to take reasonable steps to prevent and correct wrongful behavior in the workplace. The Department of Fair Employment and Housing (DFEH) is the state's enforcement agency related to the obligations under the FEHA.14
The following are SB-1343 training requirements7:
Each Company must give employees a clear, easily understood, and written Anti-Harassment Policy. The policy must be discussed at meetings regularly.
Required components of the policy14:
The policy should designate who will receive the complaints. Supervisors should report any complaints of misconduct to a designated company representative, such as a human resources manager, so that the company can try to resolve the claim internally.8
When a report of sexual harassment is received, make it a top priority. Determine if the reported behavior is serious enough to conduct a formal investigation.
If not serious, it may be resolved by counseling the individual. An example is an employee who is uncomfortable with an offhand compliment. The employee can be taught to confront the behavior and express their discomfort.14
Investigation
If the behavior violates the rules or expectations, an investigation to determine facts must be conducted. Action must be taken to resolve the wrongful behavior based on the facts.14 Steps to perform a fair investigation includes:
Interviews should be thorough and done in person, if possible
The fact that the complaint is anonymous is not a reason to ignore the complaint.14 Anonymous complaints should be investigated like other complaints. If information is too general, an environmental assessment or survey could help refine the issues. An environmental assessment would include asking a workgroup about interactions, uncomfortable situations, or witnessed behavior.
The accused party is entitled to know the allegations being made against him/her. However, it is a good investigatory process to reveal the allegations during the interview rather than before the interview takes place. It may not be necessary to disclose the identity of the complaining party in some cases. Due process does not require showing the accused party a written complaint. Instead, it means making the allegations clear and getting a clear response.14
Not every witness needs to be interviewed. Exercise discretion to determine which witnesses have relevant information.
The confidentiality of the complaint is limited.14 The complaint should only be shared with those who need to know.
Supervisors should keep the investigation as confidential as possible. However, there have been court rulings that say it is inappropriate for an employer to require that employees keep the information secret since employees have the right to talk.
Investigations should be started and completed as soon as reasonable.
If there is no substantial disagreement about the factual allegations, it may not be necessary to make a credibility determination. However, many investigations require credibility determination. The investigator makes this determination. An investigator can still reach a reasonable conclusion even if there is no independent witness to an event.
He said/she said situations are not uncommon.14 Evidence could be the complaint may have been seen to be upset shortly after the event or may have told someone right after the event. This would tend to bolster his or her credibility. On the other hand, it would tend to bolster the accused party's credibility if the investigator learned that the complaint was months old, and the complainant was just given a negative performance review by the accused. Documents such as emails or texts might bolster or reduce a witness's credibility.
Even if there is no evidence other than the complainant's and accused party's respective statements, the investigator should weigh the credibility and make a finding.
Credibility factors to consider is the Burden of Proof.
The burden of proof is that there is a preponderance of the evidence (more likely than not). Civil courts use this standard in discrimination and harassment cases. Applying a higher burden of proof, such as a clear and convincing standard or beyond a reasonable doubt standard is not applicable in harassment cases.14
Investigators should carefully document witness interviews, findings, and steps taken in the investigation. Investigators should be consistent in their method of documentation. Documents should be retrained.
People who are involved in the complaint must be counseled that retaliation violates the law and company policies. Supervisors should be alert to signs of retaliation. Retaliation can take many forms, including14:
It is good practice to check back with a complainant after an investigation is completed to ensure that the employee is not experiencing retaliation, whether or not the allegations were determined to be correct.
The FEHC regulations require an employer to take appropriate remedial steps when there is proof of misconduct. Wrongful behavior does not need to rise to the level of a policy violation or the law to require a remedy.
An employer's legal obligation is to take reasonable steps to prevent and correct unlawful behavior. Meeting this obligation includes14:
Remedial measures can include14:
Resources for victims of sexual harassment include:
DFEH assists with voluntary dispute resolution. DFEH may file a civil complaint in state or federal court if the evidence is sufficient and resolution is not successful.8
Department of Fair Employment and Housing
Some individuals may be afraid to report harassing behaviors for fear of reprisal. They may not know that employees and students who report sexual harassment are protected from retaliation by whistleblower laws. You have the right to file a whistleblower complaint with OSHA if you believe your employer retaliated against you for exercising your rights as an employee under the whistleblower protection laws enforced by OSHA.15 In States with OSHA-approved State Plans, employees may file complaints under section 11(c) of the Occupational Safety and Health Act with Federal OSHA and with the State Plan under its equivalent statutory provision.15
For CA, the OSHA designated center is:
Division of Occupational Safety and Health (DOSH)
