Kate, a trainee copywriter with an advertising agency, was sitting at her computer punching keys. Suddenly she felt a pair of hands on her shoulders. As she looked up, she saw her senior standing right behind her, rubbing the nape of her neck with his thumbs. Before she could say anything, he started reading aloud. Even though she felt uncomfortable, she mutely listened to her copy being read in a tone that was slowly taking a sarcastic edge. “This kind of copy just won’t do, Miss Kate”, declared her boss. And this was not the first time that Kate had to endure the touch or the barbs.

Say, what the heck! Isn’t this a common sight in any workplace? But hold! If it had made Kate uncomfortable, it wasn’t innocent and may well constitute sexual harassment. Now, wasn’t sexual harassment supposed to mean that you have to perform sexual favors in order to get a promotion or hold on to your job? No. And it is important for all employees to know that the law protects them from all kinds of inappropriate touches, suggestions and other more subtle sexual innuendoes.

Defining sexual harassment

Sexual harassment at workplace is a universal occurrence. It can occur in a variety of situations. In the U.S., sexual harassment is considered a form of discrimination that violates ‘Title VII of the Civil Rights Act of 1964’. According to this Act, sexual harassment occurs when one employee makes continued, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, to another employee, against his or her wishes.

According to Equal Employment Opportunity Commission, sexual harassment occurs "when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."

What’s more, a 1998 Supreme Court judgment has made employers more liable for incidents of sexual harassment. According to the Supreme Court an employer is responsible for the actions of his or her supervisor, even when the employer is unaware of the supervisor’s behavior. The employers can no longer claim that they did not know about the sexual harassment because the employee did not inform them, nor can they claim that they were unaware of the supervisor’s behavior.

Sexual harassment – Is it really a workplace problem?

Yes it is. Trauma caused by sexual harassment can be extreme. It may result in humiliation, loss of dignity, psychological and, sometimes, physical injury, and damage to professional reputation and career. Inevitably, the victims face a choice between their work and their self-esteem. Sometimes, they face a choice between their jobs and their own safety.

Studies have shown that 40 to 70 percent of women and 10 to 20 percent of men have been the target of sexual harassment in the workplace. If numbers are anything to go by, approximately fifteen thousand sexual harassment cases are brought to the Equal Employment Opportunity Commission each year!

A telephone poll conducted by Louis Harris and Associates on 782 workers revealed that a total of 31 percent women and 7 percent men claimed to have been sexually harassed at work. Almost 100 percent women claimed the harasser to be a man, of which 43 percent pointed the finger at the supervisor, 27 percent at a senior employee, 19 at the coworker and 8 percent at a junior employee (now that’s real cheek!). In the case of men, 59 percent claimed the harasser to be a woman and 41 percent, another man. But the most alarming fact was that 62 percent of these sexually harassed people took just no action against their perpetrators!

A study conducted by the U.S. Merit Systems Protection Board in 1988 concluded that sexual harassment, resulting in sick leave and job turnover, had cost the federal government a whopping 267.3 million dollars in lost productivity, in just over two years!

Types and forms of sexual harassment

The law recognizes two kinds of sexual harassment in the workplace, "quid-pro-quo" and "hostile environment".

· Quid-pro-quo, Latin for "this for that" indicates a trade. In our context, the offender offers a job benefit in return for sex. For example, if Kate’s senior had asked her to sleep with him in return for job confirmation, it would constitute sexual harassment, akin to the "casting couch". This kind of sexual harassment can be negative too. For example, "sleep with me or you're fired".

· Hostile environment sexual harassment is a situation in which the offender does or says things that make the employee feel uncomfortable because of his or her sex. This kind of sexual harassment is different from a demand for sex for a job benefit, but may create the circumstances for it.

Sexual harassment can take various forms that may involve:

• Staring, ogling or leering.
• Showing unnecessary familiarity.
• Making suggestive comments or cracking vulgar jokes.
• Asking personal questions about the victim’s private life.
• Heaping sex-based insults or taunts.
• Sending sexually explicit emails or SMS messages.
• Deliberately accessing sexually explicit Internet sites in the presence of the victim.
• Displaying sexually explicit pictures, screen savers or posters.
• Proposing unwanted dates or making requests for sex.
• Inappropriate touching, hugging or kissing.
• Criminal behavior like obscene communication, stalking, indecent exposure, molestation, and physical or sexual assault.

For an act to constitute a sexual harassment, it should be unwelcome. Even once is enough for it to become a sexual harassment. It must be of a sexual nature. And it should constitute behavior that would offend, humiliate or intimidate the victim.

However, it is good to remember that sexual harassment is different from sexual interaction or light flirtation, which is consensual and based on mutual attraction or friendship, and is certainly not unwelcome! For, without office romance things may become rather dull in the workplace and gossip mills may even grind to a halt!

Important facts and circumstances that employees should know

Employees would do well to keep the following facts and circumstances in mind:

• It is not necessary that the perpetrators and the victims need to be men and women to constitute sexual harassment, they can, very well, be of the same sex.
• Any individual, like manager, supervisor, coworker, supplier, customer, or anyone, who is connected to the employee's work environment, can be the harasser.
• The employee who undergoes harassment is not the only victim, it can be all others who witness or learn about the harassment. In other words, anyone who is affected by the conduct can potentially complain of sexual harassment.
• A victim can institute charges even if he or she is unable to demonstrate any adverse affect on employment, including transfers, demotions, salary cuts, and so on.
• When confronted with sexual harassment, it is best to follow the system of complaint and recommended procedures, as spelled out in the organization’s sexual harassment policy.

Dealing with sexual harassment at workplace

Kate would have done herself a favor had she been assertive enough to tell her senior to lay off. But, she was too timid and career conscious to put a stop to her harassment. If ever you get into such a situation, follow the steps given below to keep your peace of mind and career intact:

• The first time you experience harassment, request the offender to keep his hands, or his comments or suggestions to himself. Don’t let him or her get away with it, as there is every chance of the offender getting bolder.
• Be very firm and clear in stating that you find his or her actions offensive.
• Irrespective of the offender’s response, document everything that takes place. This should include the date and time of the offense, as well as the details about what happened.
• Preserve as evidence all emails or notes that ask for sexual favors or draw attention to some inappropriate Web site or take some other written form.
• If the harasser remains undeterred, your next step should be to take action as per the guidelines of the organization's sexual harassment policy.

Organization’s responsibility

A 1999 survey by the Society for Human Resource Management found out that 97 percent of companies have a written sexual harassment policy and 62 percent offer sexual harassment prevention training programs. Every organization that has a policy on sexual harassment should emphasize that such an act won’t be tolerated and will be investigated.

The law directs that whenever someone complains of sexual harassment, an immediate investigation of the charge should occur. The employer has a legal and ethical obligation to take each complaint seriously and thoroughly investigate the charges. An organization, having a sexual harassment policy in place, generally goes about the complaint in the following way:

• As soon as a complaint of sexual harassment is received, the employer assures the victim that reporting the incident was his or her most appropriate action and that he or she is safe from retaliation.
• Assigns a staff member to the case, who is knowledgeable about the organization and its employees.
• Asks the victim to immediately inform if he or she experiences any retaliation, threat or continued harassment from the accused directly, or indirectly through someone else.
• Encourages the victim to tell the whole story in his or her own words. Listens and takes down the details, such as dates, times, situations, witnesses, and anything else that seems relevant.
• Informs the accused about the complaint and warns him or her against indulging in retaliation or unethical actions.
• Assures both the victim and the accused of a fair and just investigation.
• Chalks out a plan to investigate and interview the accused and any potential witnesses by asking open-ended questions that seek to support or disprove the victim’s allegations.
• Having completed the investigation, takes a decision on whether sexual harassment occurred or not. For arriving at this decision, the investigator may consult other colleagues too.
• On the basis of the findings, takes disciplinary action against the offender, as spelled out in the company’s policy. To prevent further harassment, adjusts working situations fairly and in such a way that it is comfortable and productive for all.
• Files the case and ensures that no further incidents of this nature occur.

Having said this, it is important to state that no situation can be perfectly investigated. Even when harassment may have occurred, there may be no facts or witnesses that corroborate a victim’s statement. If the victim is not entirely satisfied about the investigation, he or she also has the option of obtaining legal counseling outside the workplace. However, this may entail finding out about individual state guidelines and the remedies under the civil law.

It may also be of advantage to know that the Supreme Court has given an opportunity to the employers for defending themselves against a sexual harassment lawsuit. The employers only need to show that they took reasonable care to prevent and correct any sexual harassment behavior within the workplace, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by them. So, be sure about your actions before you get involved in litigation against the organization or it may prove even more harassing than the sexual harassment itself!

How organizations can prevent lawsuits

The following actions may help organizations from being slapped with sexual harassment lawsuits:

• Draw up a sexual harassment/discrimination policy quickly, if you don’t have one already. Get it vetted by an attorney and make all your employees read and sign it. It should proclaim that your organization does not, in any way, tolerate sexual harassment. Update this policy annually.
• Make employees and supervisors aware of the contents of the policy from time to time and drive home the point that reporting would not go against the employee alleging sexual harassment. Ask the supervisors to immediately inform the management of all sexual harassment complaints, without exception.
• Provide different avenues for employees to file complaints like installing a hotline, approaching the HR department or contacting especially designated supervisors. Give the option of both male and female company representatives.
• Encourage employees to come forward and report sexual harassment that they experience or witness.
• Conduct sexual harassment training, even if it only constitutes reading material or an audio-video presentation. With this, your employees cannot claim that they were not provided training.
• Undertake annual survey by asking the employees whether they have experienced any form of sexual harassment during the past year. This will show how serious and proactive your organization is in preventing and correcting sexual harassment. This will also help pre-empt potential sexual harassment violations before they become a problem.
• Conduct proper and thorough investigations of the complaints received and ensure that the victims don’t suffer any retaliation. Treat same-sex harassment at par with those of the opposite sex.
• Keep a record of all cases and the methods instituted for the correction and prevention of sexual harassment.

In conclusion, don’t ignore a sexual harassment situation by assuming it will stop on its own. This may not only give wrong signals to the offender, but may also put others in the workplace at risk. The best defense for the employees is to understand their rights and confront the offender with confidence and conviction.