Q. What is sexual harassment?
A. Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, or conduct of a sexual nature (verbal, physical, or visual), that is directed toward an individual because of gender. It can also include conduct that is not sexual in nature but is gender-related. Sexual harassment includes the harassment of the same or of the opposite sex. Q. What are some other examples of conduct that could be considered sexual harassment?
A. Sexual harassment can take many forms, including repeated sexual flirtations, advances or propositions, continued or repeated language of a sexual nature, graphic or degrading comments about an individual or his or her appearance, the display of sexually suggestive objects or pictures, or any unwelcome or abusive physical contact of a sexual nature. Sexual harassment also includes situations in which employment benefits are conditioned upon sexual favors (quid pro quo); or in which the conduct has the effect or purpose of creating a hostile, intimidating, or offensive working environment (must be sufficiently pervasive or severe to create a hostile environment) Q. What does "quid pro quo" mean?
A. Quid pro quo means "this for that" in Latin. This terminology describes harassment that typically involves a supervisor giving or withholding employment benefits based upon an employee´s willingness to grant sexual favors.
Example: Robert tells Sue she´ll get the promotion if she sleeps with him.
Q. How would you describe a "hostile environment"?
Example: Demi tells Michael his workload will double if he doesn´t join her for dinner.
Example: Geraldo implies Sally must continue dating him if she wishes to keep her job.
A. A "hostile environment" is a work atmosphere in which a pattern of offensive sexual conduct is involved. The administrative rules describe it as "Any unwelcome verbal or physical conduct that is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with work performance or creating an intimidating, hostile, or offensive working environment." OAR 839-005-0010(3)(A)
Example: Tom, Nicole´s supervisor, regularly compliments her figure and clothing. He frequently walks up behind her and massages her shoulders, despite her objections. On Monday mornings, Tom tells the crew the "dirty joke of the week" from his Saturday night poker game. Other employees laugh, but Nicole usually walks away. Tom also keeps a calendar of semi-nude women posted in his office, despite Nicole´s comments that she finds the calendar demeaning. Based on all of the foregoing conduct by Tom, Nicole files a hostile environment sexual harassment claim.
Q. Is an employer automatically liable for sexual harassment by a supervisor?
A. An employer is automatically liable for sexual harassment by a supervisor when a "tangible employment action" occurs in connection with the harassment. A tangible employment action is very broadly defined and need not be negative. Examples include changes in work assignment or schedule, terminations or failure to promote. OAR 839-005-0030(4) Q. What about harassment by a supervisor when there is no tangible employment action?
A. The employer is still liable if the employer knew about the harassment, unless the employer took immediate and appropriate corrective action. Furthermore, the employer is liable if it should have known of the harassment. The Civil Rights Division will find that the employer should have known of the harassment unless the employer can show:
- That it exercised reasonable care to prevent harassment, and
- That the complaining employee unreasonably failed to take advantage of preventive opportunities, such as the employer´s complaint process. OAR 839-005-0030(5)
Q. May an employer also be liable for harassment by co-workers?
A. Yes, if the employer knew or should have known of the conduct but failed to take immediate and appropriate corrective action. OAR 839-005-0030(6)
Q. What is an employer´s responsibility for sexual harassment by a non-employee?
A. An employer is liable for harassment by a non-employee if the employer knew or should have known of the conduct, unless the employer took immediate and appropriate corrective action. When evaluating a complaint, the Civil Rights Division considers how much control the employer has over the non-employee. For example, an employer is considered to have a great deal of control over an individual who is on the premises to fill a vending machine. An employer can call the vending company and request a different service person, can hire an alternate company, or can even have the machines removed. OAR 839-005-0030(7)
Q. Should an employer have a written policy prohibiting sexual harassment?
A. Yes. The policy should define sexual harassment and emphatically state that it is not tolerated. Employers should allow verbal or written complaints, and should provide a grievance procedure that bypasses the immediate supervisor if he or she is the alleged harasser. The policy should also describe the disciplinary actions that may be taken, up to and including termination.
Q. What is the best way to prevent sexual harassment?
A. Equal Employment Opportunity Commission (EEOC) Guidelines recommend that employers discuss sexual harassment with employees and express strong disapproval. The employer should develop appropriate sanctions, inform employees of the right to raise complaints and how to raise them, and develop methods to sensitize all concerned.
The employer should emphasize the importance of its sexual harassment policy through communication and training. Training for staff is essential. Employers should have departmental or unit meetings to explain policies and grievance procedures, so that all employees understand what is prohibited conduct and how to complain about it.
Q. What should an employer do if an employee complains of sexual harassment?
A. The employer must make a prompt, thorough investigation to determine whether harassment has occurred. The employer should take detailed statements from the complaining person, the alleged harasser, and witnesses, and determine if the allegations are supported by the investigation. All steps of the investigation should be thoroughly documented. Employers may wish to consult an attorney for assistance with harassment investigations.
Q. What if the investigation shows that harassment has occurred?
A. The employer must take "immediate and appropriate corrective action," which means doing whatever is necessary to put a stop to the harassment. Depending on the severity of the harassment, appropriate corrective action could include any of the following: verbal or written warning; counseling; suspension; sensitivity training or education on harassment laws and appropriate workplace conduct; reassignment of workers to different locations or shifts; or dismissal of the harasser.
Q. Roseanne, an employee of mine, used to delight in telling off-color and sexually explicit jokes, but has now joined a new church and is strongly objecting when other employees tell such jokes. Is the company obligated to take any action?
A. Yes. Even though Roseanne previously consented to and even actively participated in the conduct, the company must act if she communicates that she now finds it offensive. Sexual jokes or conversations in the workplace can form the basis of a hostile environment claim, and an employer is liable if he or she knew or should have known that the offended employee withdrew consent to such conduct.
Q. Must an employee complain to the harasser or to the company before taking legal action?
A. No. An employee alleging sexual harassment can file a lawsuit or a complaint with an administrative agency, without first exhausting intra-company remedies.
Q. What types of damages can be awarded to an employee who has a successful sexual harassment lawsuit?
A. A court or administrative law judge may award damages including: back pay, counseling or medical costs; attorney fees, pain and suffering, and punitive damages.
Nothing on this
website is intended as legal advice. Any responses to specific questions
are based on the facts as we understand them, and not intended to apply to any
other situations. This communication is not an agency order. If you
need legal advice, please consult an attorney. We attempt to update the
information on this website as soon as practicable following changes or
developments in the laws and rules affecting Oregon employers, but we make no
warranties or representations, express or implied, about whether the
information provided is current. We urge you to check the applicable
statutes and administrative rules yourself and to consult with legal counsel
prior to taking action that may invoke employee rights or employer responsibilities
or omitting to act when required by law to act.
TECHNICAL ASSISTANCE FOR EMPLOYERS
800 NE OREGON STREET, STE 1045
THIS INFORMATION IS AVAILABLE IN AN ALTERNATE FORMAT