As an employer, you have a responsibility to maintain a workplace that is free of sexual harassment. This is your legal obligation, but it also makes good business sense. If you allow sexual harassment to flourish in your workplace, you will pay a high price in poor employee morale, low productivity, and lawsuits.
The same laws that prohibit gender discrimination prohibit sexual harassment. Title VII of the Civil Rights Act is the main federal law that prohibits sexual harassment. (For more information on Title VII, see Nolo's article Federal Antidiscrimination Laws.) In addition, each state has its own anti-sexual harassment law.
This article explains what sexual harassment is and provides some prevention strategies. If you need more detailed information on your legal obligations, or your company has been hit with a harassment complaint, pick up a copy of The Essential Guide to Handling Workplace Harassment & Discrimination, by Deborah C. England (Nolo).
Sexual harassment is any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile, or offensive working environment. Any conduct of a sexual nature that makes an employee uncomfortable has the potential to be sexual harassment.
Given this broad definition, it is not surprising that sexual harassment comes in many forms. The following are all examples of sexual harassment:
The harasser can be the victim's supervisor, manager, or coworker. An employer may even be liable for harassment by a nonemployee (such as a vendor or customer), depending on the circumstances.
Sexual harassment is a gender-neutral offense, at least in theory: Men can sexually harass women, and women can sexually harass men. However, statistics show that the overwhelming majority of sexual harassment claims and charges are brought by women claiming that they were sexually harassed by men.
People of the same sex can also sexually harass each other, as long as the harassment is based on sex rather than sexual orientation, which is not a protected characteristic under Title VII. For example, if a man's coworkers constantly bombard him with sexually explicit photos of women, and this makes him uncomfortable, he might have a sexual harassment claim. If, however, a man's coworkers tease and belittle him because he is gay, that might not be illegal harassment under federal law as it is currently interpreted. However, such conduct may be illegal under laws enacted by certain states, or even cities. (Of course, even if this type of behavior isn't illegal, it also isn't appropriate, and savvy employers will put a stop to it promptly so everyone can get back to work.)
The line between harassment based on sex and harassment based on sexual orientation becomes blurred when gender-based stereotypes are at play. For example, courts have held that Title VII is violated when a woman is harassed and discriminated against because she does not act sufficiently feminine; similarly, a man who is harassed for having effeminate mannerisms and gestures is protected by Title VII. These same employees might not be protected if their harassers relied more explicitly on homophobic slurs and remarks. Again, however, smart employers won't parse the legal details: This type of behavior detracts from productivity and morale and doesn't serve any valid purpose, so there's no reason to allow it to continue.
There are a number of steps that you can take to reduce the risk of sexual harassment occurring in your workplace. Although you may not be able to take all of the steps listed below, you should take as many of them as you can.
Some states require certain employers to conduct sexual harassment training. For example, California law requires employers that have at least 50 employees to provide supervisors with two hours of interactive sexual harassment training every two years. Connecticut and Maine also require sexual harassment training. And other states strongly encourage employers to provide such training, even if it isn't legally required. Even if your state doesn't require or suggest training, it's still a good idea -- your managers will know what the law is and what to do when employees complain, and, if you find yourself in a lawsuit, you'll be able to show that you took steps to try to prevent harassment.