The difference between a well-intentioned compliment and troublesome allegations is in the ear of the recipient. Sexual harassment has as much to do with intent shown through body language, facial expression, proximity of the one person to the other, tone of voice, and pacing of delivery as the actual words. What separates the one workplace environment with written “no harassment” policies that are updated annually and the rest is proper education of management and staff members on how to enforce these policies effectively. Recent studies showed that the employees most likely to be involved in sexual harassment are the ones who received the least amount of prevention training.
In 1986 that the U.S. Supreme Court first held that Title VII of the Civil Rights Act of 1964 prohibition of sex discrimination included sexual harassment. The Supreme Court identified two types of sexual harassment: quid pro quo (“this for that”) and hostile working environment.
The Equal Opportunity Employment Commission, which is charged with enforcing the law, defines sexual harassment as: “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when:
In 1998, the Supreme Court recognized that Title VII also prohibits “same sex” sexual harassment regardless of sexual orientation.
Some common examples in of conduct that might be deemed harassment found in Sexual Harassment published by Fisher & Phillips Ltd., attorneys at law, include:
These actions and others constitute sexual harassment depending on their severity, frequency and whether or not they were unwelcome by the recipient. The action must be “welcomed” per the U.S. Supreme Court from the perspective of the victim and a reasonable person in the victim’s situation. The proper inquiry focuses on the recipient’s response to the specific sexual advance(s) at issue.
Be advised, a nonprofit organization should take a “notice” of sexual harassment seriously and consult legal advice. The nonprofit would be unwise (without attorney advice) to dismiss the complaint on the basis that its organization has too few employees to be covered by any law (local, state, or federal) or because it deems it has no employer-employee relationship with the complainant.
There are two kinds of notice: “actual notice” and “constructive notice.” Actual notice happens via an employee complaint or via observation by the nonprofit’s supervisors that harassment is occurring. Constructive notice is when the facts or circumstances are such (i.e., loud, obnoxious employees who use profanity, vulgarity or sexually explicit terms) that any reasonable person would or should have known that harassment was occurring.