Sexual harassment is a serious employment issue in the US. Sexual harassment at the workplace is a form of form of sex discrimination that violates friendly relationship between the colleagues. Sexual harassment affects not only interpersonal relationship between co-workers but also personal wellbeing and the working outcomes. When employees become the subjects of sexual discrimination, they are hard to be productive at work and avoid stress. That is why employers should consider the issue of sexual harassment seriously and take efforst to prevent and combat it at the workplace. The gender disproportion in victims of sexual harassment was defined. Development of sexual harassment policies and conducting of trainings may help to prevent sexual harassments. Of all the employees, public servants should be more restrained because they can face criminal prosecution and damages for engaging in sexual harassment. In addition, sexual harassment has little defense. Hence, employers should ensure that it is nonexistent in their organizations.
Definition of Sexual Harassment
In the past, the U.S. courts faced difficulties determining whether sexual harassment was covered under the Title VII prohibitions on gender discrimination. Today, however, the courts have taken a clear position that sexual harassment is a type of sex discrimination that violates the contents of Title VII of the U.S. Constitution. The EEOC has created guidelines that have defined and classified it as constituting gender harassment in violation of Title VII. The EEOC clarifies that unwelcome sexual advances, verbal and physical conducts against employee and appeal for sexual favors constitute sexual harassment (Cihon & Castagnera, 2017). In addition, it relates to cases where an employee has to accept any of the aforementioned aspects as a condition for employment or where these issues form the employer’s basis of determining the bonuses, promotions, retention or causing interference to the employee’s performances or creating a harsh working environment of work (Fitzgerald et al., 1988). The law protects both sexes and harassment on the basis of national origin, color, religion and race is banned.
Categories of Sexual Harassment
As per the EEOC, there exist two categories of sexual harassment in the workplace. They are hostile environment harassment and quid quo harassment (Basu, 2003). Quid quo harassment occurs when an employee is compelled to respond to sexual favors so that she/he can get employment benefits like promotion and bonuses (Lourdes, n.d). An example of this case is when a female employee sleeps with her manager to get a supervisory position. On the other hand, hostile environment harassment refers to an employee’s exposure to unwelcome sexual comments, jokes, propositions and conducts that affects his/her performances or makes him/her uncomfortable. For example, the U.S. Supreme court in ruling the case of Meritor Savings Bank v. Vinson affirmed that Title VII is violated by a hostile environment Dagley (2018).
Establishing Sexual Harassment
The EEOC looks at several things in determining sexual harassment. All the circumstances surrounding the incidence, including the context and the nature of the alleged sexual harassment, are considered. While applying Title VII, an employer, employment agency, a partnership or a labor union is collectively referred to as “employer’’ and is responsible for the offense committed by its agents and supervisory employees, irrespective of whether these acts were forbidden or unauthorized by the employer. The case of Faragher v City of Boca Raton 524 US 775 (1998) can increase understanding of how the legal principle of Title VII works on practice. In 1998, Beth A. Faragher sued the City and her supervisors, blaming her supervisors in sexual harassment at the workplace (“Faragher v. Boca Raton, 524 U.S. 775 (1998),” 1998). Working as the lifeguard, she was subjected to offensive touching and abusive claims towards females. As a result, the court recognized the violation of the Title VII of the Civil Rights Act in her casen (“Faragher,” 1998). However, the city was not issued in this case since the employer was recognized as liable for the sexually hostile environment.
Concerning the conduct of fellow employees, the employer assumes responsibility for the sexual harassments at his/her workplace if he/she had knowledge of the alleged sexual harassment and did not take immediate action to correct the behavior (Stockdale et al., 2004). Besides, the employer is accountable for the sexual harassment actions of nonemployees if they take place within his/her workplace and the employer or his/her representatives or supervisors decide not take a corrective action (“Sexual harassment: Legal Standards”). Hence, the employer’s best option is to take corrective actions to prevent sexual harassment from occurring in his/her workplace.
Reasonable Person or Victim Standard
The reasonable person or victim is a standard applied in solving claims of hostile environment harassment. Courts use it to establish the severity or hostility of the conduct. As such, the courts will always try to find out whether a reasonable person thinks that the alleged conduct is severe or hostile enough to create an unfriendly work environment or interferes with the employee’s performance (Cihon & Castagnera, 2017). As per the EEOC’s policy statement, courts have to consider the victim’s perspective before making a judgment; this helps them to overcome propagating stereotypical ideas of the type acceptable behavior that pertains a specific gender. Effectively, some courts have accepted that women and men are likely to have a different perception to certain behavior, hence a reasonable woman standard should be used in a case involving a woman and vice versa.
Workplace Sexual Harassment Liability
The employer is always liable for the sexual harassment committed by coworkers in both the hostile environment harassment and quid quo harassment if he/she was aware of the harassing conduct and chose to take no actions. For the case of nonemployees, the employer is responsible if he/she had control over the harasser and failed to take corrective measures once he/she was aware of the harassment (“Sexual Harassment”). Interestingly, individuals are not liable for any damages under Title VII (Cihon & Castagnera, 2017). It follows that employees are not accountable for sexual harassment. The only thing to do is to direct them to desist from the conduct through court injunctions. However, sexual harassers should be wary that they may be charged under the EEOC’s various state laws or common tort claims. If found guilty, they will have to pay punitive damages in addition to employment-related compensations and legal fee. Public employees found engaging in sexual harassment may, in addition to criminal persecution, be subjected to damages for suits under 42 U.S.C. (1983) of the Civil Rights Act and payment of the retributive costs and the legal costs (Schoenheider, 1986).
Prevention and Defense
The best way for an employer to avoid liability for sexual harassment in the workplace is prevention. The U.S. Supreme court and the EEOC have continuously encouraged employers to have a policy against sexual harassment. Apart from defining sexual harassment, the policy should make an effort of giving examples of the conduct so that all employees are aware of it (“Sexual Harassment at Work”, n.d). In addition, an organization should make it clear that it does not tolerate sexual harassment by taking immediate action to investigate and taking tough measures against the perpetrators. It is vital for employers to communicate with all organization members and instruct them on what to do in case of sexual harassment.
Concerning defense, employers have the reprieve in the sense that courts do not consider trivial comments or isolated incidents of lesser severity as constituting sexual harassment. For example, in the case of Scott v. Sears Roebuck Co., the court held that a wink or one pat on the buttocks or one dinner invitation to an employee by his employer did not constitute sexual harassment. The EEOC’s estimates indicate that 80% of sexual harassment victims, male or female, fail to file formal complaints in the US (Goldstein, 2018). However, failure of the employee to report sexual harassment through the company’s sexual harassment complaint procedure does not protect the employer from liability if he/she knew, or had had reason to know, of the harassment. It is evident that the employer is liable for sexual harassment of employees and nonemployees; therefore, the best thing is to make it unwelcome in the organization.
In summary, sexual harassment at the workplace in the US is an serious issue requiring public attention and immediate actions from the law enforcement side to be combated. Sexual harassment constitutes gender discrimination and violates law what makes it undesirable phenomenon at the workplace. Employer is responsible for sexual harassment cases at work. Therefore, the employer exactly should take several preventive measures, like having the sexual harassment policy, implementing it and communicating it to every member of the organization. Similarly, the employer should show commitment and intolerance to sexual harassment through prompt investigation immediately it is reported and give harsh punishment against employees found engaging in this conduct. The employees should understand that employer is not a solely responsible person and that the violators of the sexual harassment policy can can be lawfully charged for their actions. Since there is little defense for sexual harassment, employers should ensure that sexual harassment is unwelcome in their companies and all employees should be educated and encouraged to shun it.
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