Sexual Harassment in the Modern Workplace

It’s 2020 and the office is more laid-back than it’s ever been before. Every day is beer cart Friday, you Snapchat your coworkers and have them on Facebook.

We’ve officially mixed business with pleasure and it makes the workplace more fun. But it also provides ample opportunities for crossing personal boundaries and venturing into sexual harassment territory.

This guide is going to help you recognize this new environment and its associated sexual harassment risks. Plus, learn what you’re doing that might be enabling employees to mistreat each other and how to stop a harassment epidemic in its tracks.

PLUS: borrow this free Sexual Harassment Policy Template. It will help you organize all of your information into a strong, effective policy that prevents sexual harassment at work.

Definition of Sexual Harassment

The preferred definition, provided by the EEOC, defines sexual harassment as an unlawful form of harassment based on sex, including:

“Unwelcome sexual advances, requests for sexual favors, other verbal or physical harassment of a sexual nature” and “offensive remarks about a person’s sex.”

Contrary to the harmful stereotype of the powerful male manager tirelessly pursuing the vulnerable female receptionist, sexual harassment is not limited to verbal or physical acts. It can also be nonverbal, visual or written.

Another myth buster: victims and harassers can be of any sex and of any job description. The harasser may even be from outside the company, such as a client or a customer.

Identifiers of Sexual Harassment

The EEOC’s cut-and-dried definition doesn’t encompass newer and more subjective types of sexual harassment in the workplace. A better alternative, then, is to identify sexual harassment using four identifiable elements.

1. Unwelcome Conduct

A telltale sign of sexual harassment is that the conduct is unwelcome. For example, let’s say that two coworkers are hanging out in private. Both are active in the conversation, making sexual jokes and laughing. Because the behavior is welcome and embraced by both parties, it’s likely not sexual harassment.

2. Based on Sex

The second element is that the harassment is somehow based on sex. Whether it’s harassment due to the victim’s biological sex, gender identity or sexual orientation, incidents of sexual harassment require an underlying theme of sex.

3. Impacts Working Conditions

The third element is that the harassment is affecting the victim’s working conditions. If the harassment is serious enough it’s bound to foster a hostile workplace for the victim, which then kills productivity, drains the victim and derails their professional success.

4. Severe or Pervasive

The fourth is that the incident is severe or pervasive. Because it’s harassment and less clear cut than something like assault, accidents and miscommunications can happen. A bad joke, a one-off comment or a distasteful poster might not be intentionally harmful. But ongoing harassment is more likely to be intentional and therefore a case of a hostile work environment.

Hostile Work Environment

The law doesn’t prohibit simple teasing, offhand comments, or minor isolated incidents.

However, harassment is illegal when it is so frequent or so severe that it creates an abusive work environment, or when it results in a negative employment decision (like the victim being fired or demoted).

Want to know more? Head over to the Complete Guide to a Hostile Work Environment in 2020.

Hostile work environment sexual harassment might consist of:

• sharing or posting lewd photos or illustrations
• sending sexual text messages or emails
• writing and sending sexual notes
• staring in a sexually suggestive manner
• telling inappropriate jokes
• making inappropriate comments
• inappropriate touching or invading personal space
• asking inappropriate or sexual questions

On the other hand, a hostile work environment is not a colleague being rude one day, your boss making a cringe-worthy joke or your cubicle neighbor talking loudly on the phone.

Since it’s the “totality of circumstances”, hostile work environment is an umbrella term under which sexual harassment, racial discrimination, age discrimination, disability harassment and many other inappropriate behaviors may fall.

Example of Hostile Work Environment

Let’s take a look at an example.

Earlier this year Uber agreed to pay $10 million to settle a class-action lawsuit accusing the company of widespread discrimination against women and minorities, and alleging that managers allowed a hostile work environment to fester. Uber also agreed to modify current practices for deciding compensation and provide more mentoring or training opportunities for women and minorities.

Quid Pro Quo Sexual Harassment

In our Quid Pro Quo Sexual Harassment Guide, we define quid pro quo sexual harassment as:

“A type of workplace sexual harassment in which an employee’s submission to or rejection of a superior’s sexual demands affects employment decisions, either positively or negatively.”

Quid pro quo sexual harassment typically involves an employee being pressured by a superior to provide a sexual or romantic favor in exchange for something job-related, like getting a promotion or avoiding a demotion.

Quid pro quo sexual harassment stories dominate the #MeToo and #TimesUp headlines. You know the story, the promise to discuss a promotion…but only in the comfort of the boss’s hotel room.

With quid pro quo sexual harassment, the harasser might offer:

• a promotion
• a raise
• a bonus

On the flip side, the harasser might also threaten a subordinate with:

• termination
• a demotion
• a pay cut

Even if the harasser doesn’t follow through, the perception by the victim that the threat or benefit is real constitutes quid pro quo sexual harassment.

Example of Quid Pro Quo Sexual Harassment

Suppose an employee has been longing to attend a trade show in Paris. Her boss says she can attend as long as she agrees to go on a date with the company’s largest client while there. Even though the boss isn’t asking to be on the date, the request still constitutes quid pro quo sexual harassment.

New Age Harassment at Work

Sexual harassment in the modern office can look a little different. Slimmed-down management structures and increasingly laid-back company cultures are making it more difficult to determine what’s appropriate and what might be causing a hostile work environment.

Quartz writes about these blurred lines and how it can be harder to identify sexual harassment especially when “filtered through the lens of workplace power and politics”.

Sexual harassment might be a flurry of inappropriate text messages in the middle of the night. It could be a colleague approaching another colleague on multiple occasions at an office outing, despite being told the victim is not interested every time. It may even be crude and uninvited Snapchat photos sent from across the lunchroom.

Want to know the five key pieces found in all successful harassment prevention plans? Download the cheat sheet: 5 Steps to Prevent Sexual Harassment.

When professional and personal lives become heavily intertwined, it can be more difficult to set boundaries and find the line between appropriate and inappropriate. Before, employees never had to differentiate between a friendly text and a flirty one because there never would’ve been a friendly text in the first place.

Quid pro quo sexual harassment can also look different in today’s workplace.

Thanks to dating apps like Tinder and social-business networks like LinkedIn, conversations not appropriate for the office can easily take place online. There’s more opportunity for colleagues to pursue one another when they’re not confined to four office walls.

But this potential doesn’t limit itself to healthy relationships between colleagues. Offering a promotion in exchange for a date is sexual harassment whether the offer is made online or offline, and sexual harassment is illegal no matter the medium used.

Employers need to recognize the role that technology and casual offices play in creating new forms of sexual harassment. When we blend our personal and professional lives too much, sexual harassment might mistakenly be interpreted as a successful team-building exercise.

Quartz notes that, as companies transition to increasingly fluid environments, they must “remember not to blur the lines between work, play and consent to do either” unless they’re ready to be liable for fostering a toxic environment.

Employer Liability

A victim of sexual harassment may have a criminal case against their harasser and be entitled to compensation thanks to a number of federal, state and municipal laws explicitly prohibit sexual harassment in the workplace.

An employer may be liable for sexual harassment happening in their workplace, depending on the harasser’s job role and the type of sexual harassment being alleged.

For example, if the President or CEO is the harasser, then they are the employer and therefore accountable for any harassment they commit. Also, the company is liable if the harasser is the victim’s immediate supervisor since they have direct authority over him or her.

Companies are legally responsible for creating and maintaining a safe working environment, meaning it’s unlawful to overlook or ignore incidents of sexual harassment. This is known as vicarious liability.

An employer who should have known about sexual harassment in the workplace (and especially an employer who “looks the other way”) may be found guilty of vicarious liability.

Investigating Sexual Harassment

Sexual harassment allegations are infamously challenging for companies to investigate and resolve. With everything you do, you must be quick, thorough and tactful.

Speed is necessary to ensure the behavior doesn’t continue and harm other victims. Time is of the essence not just to protect the victim but also to protect your other staff and entire reputation.

Investigating sexual harassment is much easier with proper documentation of the incident. That’s why you need this Sexual Harassment Complaint Form Template.

An investigator needs to be thorough, too, as sexual harassment incidents are notorious for taking place in private without witnesses or evidence. Exhaust all possibilities before reaching a conclusion because a careless or inadequate investigation can be seriously harmful to your company’s reputation.

Also, the complainant may be embarrassed or in distress, meaning every move must be made with discretion, sensitivity and tact. If you’re about to terminate the harasser due to their behavior, the last thing you’ll want is to lose the victim too due to your own negligence.

For specific advice about getting started, conducting interviews, evaluating the evidence and following up, check out 39 Tips for Conducting a Sexual Harassment Investigation.

Is Company Culture the Problem?

Looking to fix a sexual harassment problem in your office? Take a good hard look at your corporate culture.

Beyond supporting and empowering victims and witnesses, the social media movements #MeToo and #TimesUp have exposed the extremely culture of certain industries.

The “open secret” of Hollywood mogul Harvey Weinstein took the public by surprise but those on the inside already knew. It was widely known that that crude, inappropriate meetings were a prerequisite for a better role in the movie or the larger office.

In fact, uncontested predatory behavior is a cultural norm from the restaurant industry all the way to Wall Street. Starting a new serving job and being advised to “stay away from the guy that works nights” is a rite of passage for many.

However, this widespread acceptance doesn’t mean it’s ok. Far from it.

So, what does your corporate culture look like? Are you confident that predators are penalized, victims are empowered and “open secrets” are nonexistent?

4 Ways to Transform Your Culture

So, maybe your company’s culture isn’t the best. That’s ok, it’s not irreparable. In fact, tons of companies have been able to reverse unhealthy environments and salvage their culture.

An employee handbook is a great way to jumpstart your new, healthy culture. Check out these 12 Amazing Employee Handbook Examples for inspiration.

These four changes are easy to implement and are guaranteed to make a difference in your culture.

Invest in Employee Happiness

Once upon a time, the numbers on the paycheck were all that mattered. These days, the perks and benefits you offer sometimes matter more than the salary. Whether you’re providing free coffee, free lunches, mobile work, casual dress, daycare or flexible hours, benefits are now king.

Listen to your employees – what do they want? Making even minor changes to normal working hours can dramatically improve employee happiness and productivity.

Reward Greatness

When an employee makes a mistake or misses a deadline, bosses are quick to get angry, place blame or discipline them. However, if an employee solves a certain never-ending problem or closes an infamous deal, they often don’t get nearly enough praise. Usually, it’s a “good job!” and everyone goes on with their day.

It feels good to see your contributions to the workload. But it feels amazing when your boss sees your value and rewards you for it too.

Grow Relationships

Fostering healthy relationships between employees (and between employees and employers) is a guaranteed way to improve staff happiness and the overall company culture. When an employee feels welcomed, appreciated, accepted and cherished, they’ll make others feel that way too. Soon enough, friendships will fill the office, making it a happier and more enjoyable place for all.

Communicating Purpose

Share your purpose. Without a purpose there’s no harmony or direction, there’s nothing uniting employees and employers. Employees need a full grasp of their company’s purpose to feel connected, they need to believe in the work they do to feel fulfilled. When employees internalize the company’s mission, they’ll see it as their own.