Should a person (employer or employees) be held liable for unintentional sexual harassment? If yes, under what circumstances? If no, under what circumstances? Give examples of particular cases that address both circumstances.
Sexual harassment is defined as "any verbal or physical behavior with sexual connotations that brings discomfort or degrades the work environment, where the aggressor takes advantage of his or her position or repeated involvement to impose such behavior on another individual against his/her will, causing disadvantage to the individual."
Sexual harassment includes any unwelcome, unsolicited and non-reciprocated behavior that constitutes deliberate or unintentional verbal or physical conduct of a sexual nature (Gibson, 1995). Sexual harassment may be an isolated incident or a series of many incidents. The distress that results from sexual harassment may be the same whether the conduct was intentional or unintentional. Therefore, both employers and employees should be held liable for both intentional and unintentional sexual harassment, especially if the harassment is a continuous behavior.
In many cases, comments or actions are made unwittingly that are equivalent to sexual harassment. Even though there may have been no intent to harass another person, an offender might make sexually discriminating remarks or impose a role based on his or her sex, especially concerning sexual behavior or appearances, and degrade another person's personality, as a result. When this occurs, there are many detrimental consequences -- many of which are as severe as those caused by intentional harassment.
Basically, in my opinion, if a man compliments a woman on her taste in clothes on a regular basis, it is not sexual harassment. If she tells him it makes her uncomfortable and asks him to stop, it is, even if he does not intend it to be.
Both intentional and unintentional sexual harassment are forms of sexual discrimination. Both severely deny human rights (Webb, 1992). In the workplace, sexual harassment occurs mostly within a hierarchy, such as between supervisors and subordinates, where it is difficult for the individual of inferior status to stop the behavior. Also, the person may receive considerable psychological damage from being sexually harassed by someone he or she had trusted.
For this reason, the Supreme Court states that employers are automatically liable for sexual harassment by supervisors in all cases involving "tangible employment action," such as discharge, demotion, undesirable reassignment or change of benefits for the harasser. In addition, employers are automatically liable for sexual harassment by a supervisor that does not involve a tangible employment action.
In cases where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.
Sexual harassment may subject an employee to suspension or expulsion regardless of his or intent (Gibson, 1995). The fact that an employee or supervisor did not mean to subject another to sexual harassment is not a defense. The negative effect of the sexually offensive conduct on another is, by itself, a sufficient ground for punishment.
Basically, the best defense against sexual harassment is prevention. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment, and developing methods to sensitize all involved.
Q: Is Quid Pro Quo more severe than Hostile Environment? Give examples of both terms and Reasoning?
A: Sexual harassment is a type of sex discrimination, which is a violation of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC) guidelines clearly define two types of sexual harassment: "quid pro quo" and "hostile environment (Bushweller, 1994)."
Quid pro quo harassment takes place when an employee is directly or subtly required to tolerate harassment in order to retain or obtain a job, a promotion, or a pay increase. Quid pro quo sexual harassment is typically easy to recognize. For example, if an employee's boss threatens to withhold a promotion from the employee unless he or she agrees to submit to sexual demands, quid pro quo harassment has occurred.
Quid pro quo harassment may occur even if the harasser does not actually carry out the threatened action (i.e. hiring, firing, promoting, disciplining), as long as he or she has been part of the decision-making. In addition, quid pro quo harassment does not always involve a clear threat, and can often be very subtle. Victims of sexual harassment or unprofessional conduct are often not told specifically how or when they will be harmed if sexual advances are turned down.
Hostile environments are environments where harassment is severe or pervasive enough to interfere with or change an employee's work performance, or create a hostile, abusive or offensive workplace. A hostile environment exists if one r more of the following exists (Webb, 1992):
unwelcome sexual advances;
requests for sexual favors; and/or verbal or physical conduct of a sexual nature that interferes with an employee's work performance or creates an intimidating, hostile, or offensive working and learning environment.
For example, if an employee continually makes lewd or graphic verbal comments about a fellow employee's body, sexual prowess or sexual deficiency, he or she is creating a hostile environment. If he or she makes threats or demands of a sexual nature, the same is true.
Quid pro quo sexual harassment is a more severe form of sexual harassment, as it occurs in a situation where one person has formal or informal power over another person. This is a terrible situation, as a person in authority over another person requests the subordinate to conduct inappropriate sexual behaviors in exchange for job security or advancement. Because of the workplace hierarchy, the sexually harassed person is less likely to complain. Often, he or she is economically dependent on her aggressor.
In addition, the abuse is humiliating, so the victim may want to keep it secret. Fearful of losing his or her job and economic security, he or she keeps quiet. The victim also may fear rejection by the legal system if she seeks recourse from higher authorities. Not surprisingly then, studies have shown repeatedly that very few individuals report their experiences or submit an official complaint, especially in cases of quid pro quo harassment. For this reason, it is a very severe form of sexual harassment.
Q: If sexual harassment is in the company, what is the best possible solution to resolve it regardless if it is intentional or non-intentional.
A: There are many options available for solving a sexual harassment problem in a company, whether it is intentional or non-intentional (Bushweller, 1994). People have a tendency to assume that parties to a sexual harassment complaint cannot work together to resolve the dispute. This assumption does both parties a disservice. Many hostile environment complaints arise as a result of differences in perception about what is humorous or flattering and what is offensive, or they arise as a result of one person's failure to respect the other or to understand the effect of his or her behavior on the other.
If the parties are open to talking with each other, these complaints can be mediated and resolved. By using mediation, a manager can potentially save the company's relationship with both employees and avoid a lawsuit. Mediation of workplace disputes can be very beneficial for companies that have no plans to change the structure or philosophy of their organizations. Employment litigation an expensive process, in terms of dollars spent, time lost, and relationships ruined. Mediating disputes as they arise in the workplace can help companies avoid those costs.
Because mediation is a voluntary process, both that victim and the accused must agree to it. The manager should make sure that both parties understand what mediation is, how it works, and how it relates to their dispute. If mediation can be agreed upon by both the victim and the accused, the manager should contact a professional mediator.
If mediation fails, or if the victim issues a formal complaint in writing, the manager should take the necessary steps to immediately conduct comprehensive investigations into the matter in accordance with the company's sexual harassment policies. The manager should notify the accused party in writing that a complaint has been lodged against him, giving a copy of the complaint or details of the complaint.
At this point, the manager should meet with both parties individually to determine if they can resolve the problem without getting lawyers involved. However, if it can be demonstrated that the behavior warrants disciplinary investigation, the manager must enforce formal disciplinary procedures to resolve the dispute.
Often, a person accused of sexual harassment will resist punishment and may honestly feel that he or she is innocent (Jayne, 1994). Often, behavior that is experienced as sexual harassment might not be considered sexual under other circumstances. Because of this, sexual harassment can be difficult to understand. For example, if…