The list of sexual harassment allegations continues to grow. The “Me Too” campaign has helped numerous women and men break silence and speak about their own experiences with sexual harassment, some for the very first time since their victimization. It is anticipated that this national attention to sexual harassment will encourage employees to consider speaking about their experiences to their human resource departments and seek resolution for being sexually harassed.
This reality demands that HR professionals must exercise “reasonable care” to prevent and resolve sexual harassment complaints before they escalate. Thus, employers must have in place an effective and enforced policy prohibiting sexual harassment (reissued annually), effective and enforced investigatory procedures and training for all members of the organization that provides employees with a review of their rights and responsibilities as complainants, respondents and witnesses. Training investigators also is mandatory. HR professionals must never exhibit deliberate indifference, i.e., had knowledge of the sexual harassment and responded in an unreasonable manner to the known incidents. Deliberate indifference puts all employees at continued risk for sexual harassment.
While the national attention to sexual harassment can empower employees to report their experiences, we need to ensure they understand the differences in the ways public figures have been treated as opposed to legal remedies with their own employer. In addition, research indicates there are still several myths to which employees cling that must be addressed by HR departments. Below are some of the more common myths and corresponding realities. This format has been useful as a way to challenge employees’ beliefs about sexual harassment as well as calm fears about reporting, retaliation and confidentiality.
Myth: Employers don’t have to investigate a complaint of sexual harassment if I ask them not too…I just want to get this off my chest.
Reality: Employers have a legal obligation to investigate sexual harassment complaints once put on notice. Employers must investigate complaints when an employee makes them aware of the incidents and/or when a supervisor or manager is informed of sexual harassment.
Myth: Employers take months to resolve sexual harassment complaints. I’ll just leave this company and move on.
Reality: Once the employer is made aware of alleged sexual harassment, an investigation must be undertaken and completed promptly, i.e., on average a few days or week. During an investigation, the potential for further harassment and retaliation is great. Furthermore, the stress level of parties to the complaint will be high. It is critical to resolve complaints as quickly as possible.
Myth: My employer won’t keep my allegations in confidence. My co-workers will know I filed a complaint. My supervisor will fire me for bringing forth my complaint.
Reality: Sexual harassment investigations are not kept in employees’ personnel files but in a separate filing system. In addition, HR professionals must keep in confidence what they learn during the course of their investigation and share information only with individuals who must know on a need to know basis.
Furthermore, retaliation for participating in a complaint proceeding is illegal. Employers must ensure they will review employment decisions impacting parties to the complaint are not based on retaliation. If a party to a complaint believes they are experiencing retaliation, the human resource professional must investigate this charge.
Myth: Who will believe me? I have worked here six months; the respondent has been here 11 years. They will side with her, not me.
Reality: Neutral parties must carry out sexual harassment investigations. No investigator must express their opinions to parties to the complaint. Investigators must avoid questions that are victim blaming, e.g., what were you wearing when these comments were made about your body; what did you say to elicit this touching? As Anne Levy and I noted2, an “I’m here to get to the truth no matter what that means” approach is important.
Myth: No one witnessed what was said to me or the physical touching and fondling. Without a witness to the incident(s) how can I prove what occurred?
Reality: Very often sexual harassment occurs in private; there typically is no one who has seen or heard the behavior. The EEOC defines a witness as an individual in whom the complainant confided, e.g., mate, co-worker, therapist.
Myth: Investigations don’t take into account the credibility of the parties involved.
Reality: Investigators are trained in determining credibility, i.e., whether individuals are telling the truth, corroboration by witnesses, and an individual’s motive to falsify information.
Myth: My boss never promised me a promotion or good performance evaluation for complying with his sexual wishes…but there was touching and comments made about my body and my intimate relationship with my mate. It’s only sexual harassment when there is “something for something”, right?
Reality: There are two types of sexual harassment: quid pro quo and hostile environment sexual harassment. A hostile work environment may exist when verbal and or nonverbal behavior in the workplace:
1. Occurs because of an individual being a member of a protected class (e.g., sex).
2. Is unwanted or unwelcome.
3. Is severe or pervasive enough to unreasonably impact the employee’s work environment.
A hostile work environment may be created by peers; it does not have to occur only between individuals of unequal power in the workplace. Quid pro quo sexual harassment occurs when an individual with organizational power offers or hints that they will offer a job applicant or employee a job, raise, promotion, in return for the individual’s compliance with sexual demands or will fire or not promote them for failure to comply with their sexual requests.
Human resource specialists must be prepared to deal effectively with complainants, respondents and witnesses in a complaint proceeding. Media accounts do not provide the information human resource professionals must offer employees who wish to seek resolution for sexual harassment. Failure to provide reasonable care and to address employees’ beliefs about sexual harassment and reporting mechanisms will undoubtedly lead to complaints to the Equal Employment Opportunity Commission and lawsuits. Let’s use what has been happening in Hollywood and Silicon Valley as a catalyst for change in ways organizations prevent and deal with sexual harassment.
Dr. Michele Paludi, Senior Faculty Program Director for Human Resources and Leadership in the School of Business and Technology at Excelsior College in Albany, N.Y., is the author/editor of 56 college textbooks, and more than 250 scholarly articles and conference presentations on human resource management, leadership, workplace discrimination, diversity and inclusivity, sexual harassment, campus/workplace violence and the psychology of women. Her edited book, “Ivory Power” (SUNY Press) received the 1992 Myers Center Award for Outstanding Book on Human Rights in the United States. She has also served as a consultant to and a member of Governor Mario Cuomo’s Task Force on Sexual Harassment.