Sexual harassment

Sexual harassment is harassment of a sexual nature, typically in the workplace or other setting where raising objections or refusing may have negative consequences. In American employment law, it is defined as any unwelcome sexual advance or conduct on the job, having the effect of making the workplace intimidating or hostile. Sexual harassment is considered a form of illegal discrimination and is a form of sexual and psychological abuse, ranging from mild transgressions to serious abuses. Indeed, psychologists and social workers report that severe and/or chronic sexual harassment can have the same psychological effects on victims as rape or sexual assault. Backlash and retaliation for complaining about the harassment can further aggravate the effects. For example, in 1995, Judith Coflin committed suicide after chronic sexual harassment by her bosses and coworkers. (Her family was later awarded 6 million dollars in damages.)

The definition of the phrase Sexual Harassment can be broad and controversial, depending on each individual's opinion of what harassment is, and misunderstandings can abound. The term was coined in 1974 at Cornell University. While typical sexual harassment behaviour usually includes unwanted touching of a co-worker's private parts, lewd comments, talk about gender superiority, sexual jokes, demands for sexual favors, etc., some companies have reported that they have had to fire employees (after a co-worker has complained of sexual harassment) for such actions as telling the complaining co-worker how good he or she looks for that co-worker's date with another person, or for simply handing what seemed, to the fired employee, to be just a harmless compliment. Street harassment is generally considered another form of sexual harassment.

The situation is further complicated by the fact that an individual's career can easily be destroyed when they become the target of sexual harassment, or if they are accused of harassment. Employers need to be careful to protect the rights of both complainants and individuals who have been the subject of complaints, as both may find themselves in vulnerable positions, and the rights and wrongs of a case may not be straightforward. Those who have been accused must be assured that their rights will be fully protected, and that accusation will not automatically be taken as proof. They must also be counselled not to take matters into their own hands if they believe themselves unjustly accused, and that any retaliation will be viewed seriously, irrespective of the merit of the original complaints.

Varied circumstances
Sexual harassment can occur in a variety of circumstances:


 * The harasser can be the victim's supervisor, a client, a co-worker, a teacher or professor, a student a schoolmate, or a stranger.


 * The victim does not have to be the person directly harassed but can be anyone who finds the behavior offensive and is affected by it.


 * While adverse effects on the victim are common, this does not have to be the case for the behavior to be unlawful.


 * The victim can be male or female. The harasser can be male or female.


 * The harasser does not have to be of the opposite sex.


 * The harasser may be completely unaware that their behavior is offensive or constitutes sexual harassment, or they may be completely unaware that their actions could be unlawful.

However, one constant is that the harasser's behavior must be unwelcome.

(Adapted from the U.S. Equal Employment Opportunity Commission)

Definitions
The concept of sexual harassment has both colloquial and legal meanings. Many more people have experienced sexual harassment than have a solid legal case against the accused. For many businesses, preventing sexual harassment, and defending its managerial employees from sexual harassment charges, have become key goals of legal decision-making. Supreme Court Justice Clarence Thomas has pointed out that sexual harassment in the workplace is not a freestanding tort, but is only, in its legal sense, a subcategory of employment discrimination. Similar definitions have been established for academic environments, with a similar burden of proof (as described below).

EEOC definition
In 1980 the Equal Employment Opportunity Commission produced a set of guidelines for defining and enforcing Title VII (in 1984 it was expanded to include educational institutions). The EEOC defines sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when:

1. Submission to such conduct was made either explicitly or implicitly a term or condition of an individual's employment,

2. Submission to or rejection of such conduct by an individual was used as the basis for employment decisions affecting such individual, or

3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

1. and 2. are called "quid pro quo" (Latin for "this for that" or "something for something"). They are essentially "sexual bribery", or promising of benefits, and "sexual coercion". Type 3. known as "hostile work environment," is by the far the most common form. This form is less clear cut and is more subjective. 

Prima facie case for sexual harassment, quid pro quo
To be quid pro quo it must be proven that "the employee's reaction to the harassment complained of affected tangible aspects of the employee's compensation or terms, conditions or privileges of employment." This was originally the only recognized form of sexual harassment.

Prima facie case for sexual harassment, hostile environment
Where a hostile environment is alleged, the legality of behaviors must be determined on a case by case basis. Such a claim focuses on the working conditions that must be endured by the victim as a condition of employment, rather than on tangible job changes. To establish whether the situation is actionable the "totality of circumstances" must be weighed with an eye to determining "that the harassment affected a term, condition, or privilege of employment in that it was sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive working environment" (Peiliciotti, 1988). One law firm with expertise in this field concludes that, to establish a prima facie case for hostile work environment sexual harassment, the alleged victim must prove the following five elements:

1. He or she suffered intentional discrimination because of his/her sex.

2. The discrimination was pervasive and severe.

3. The discrimination detrimentally affected him or her.

4. The discrimination would detrimentally affect a reasonable person of the same sex.

5. Management knew about the harassment, or should have known, and did nothing to stop it. 

In a case like this, the pervasiveness and severity of the conduct have an inverse relationship to each other. For example, a single act may be considered sexual harassment if it is very severe (touching sexual areas of a person's body). Less severe conduct, such as crude language, romantic invitations, or extended glares, can still be sexual harassment if it happens several times or regularly, particularly if the person on the receiving end of this behavior makes clear that it is not welcomed.

Retaliation and Backlash
Retaliation against a complainant is very common. Victims who speak out against sexual harassment are often labeled troublemakers, and risk hostility and isolation from colleagues, supervisors, teachers, or fellow students. They risk being given negative evaluations or low grades, having their projects sabotaged, being denied opportunities, and other actions against them which undermine their ability to do their work or advance at work or school. Retaliation can even involve further sexual harassment. As in cases of rape or sexual assault, the "victim" often becomes the "accused," with their appearance, private life, and character likely to fall under intrusive scrutiny and attack. A professor or employer accused of sexual harassment, or who is the colleague of a perpetrator, can sometimes use their power to see that a victim is never hired again, or never accepted to another school.

Women are not necessarily sympathetic to female complainants who have been sexually harassed. Internalized sexism, along with jealousy over the sexual attention towards the victim, may encourage women to react with as much hostility towards the complainant as male colleagues. Fear of being targeted for harassment themselves may also cause women to respond with hostility. For example, when Lois Jenson filed her lawsuit against Eveleth Taconite Co., the women placed a hangman's noose above her workplace, and none of them would ride in the elevator with her. (Many of these women later joined her suit.) Women may even project hostility onto the victim in order to bond with their male coworkers and build trust.

One woman who was interviewed by Helen Watson, a sociologist, reported that, "Facing up to the crime and having to deal with it in public is probably worse than suffering in silence. I found it to be a lot worse than the harassment itself."



Prima facie case for retaliation
Retaliation for complaining or filing a grievance is as illegal as the harassment itself, but also as difficult to prove.

To establish a prima facie case of retaliation, a person must show by a preponderance of evidence that

1. The person engaged in a protected activity known to the employer.

2. The employer thereafter subjected the complaining party to an adverse decision.

3. There was a causal link between the protected activity and adverse employment decision.

Protected activities usually encompass making discrimination and harassment activities known to management, participating in Managing Diversity programs, assisting another employee with a discrimination complaint and other similar activities.

Effects of Sexual Harassment
Some common effects of sexual harassment and the (often) accompanying retaliation:


 * Decreased work or school performance; increased absenteeism
 * Loss of job and income; having to drop courses, change academic plans, or leave school
 * Having one's personal life offered up for public scrutiny --the victim becomes the "accused," and their dress, lifestyle, and private life will often come under attack. (Note: this rarely occurs for the perpetrator.)
 * Being objectified and humiliated by scrutiny and gossip
 * Becoming publicly sexualized
 * Defamation of character and reputation
 * Loss of trust in environments similar to where the harassment occurred
 * Loss of trust in the types of people that occupy similar positions as the harasser or their colleagues
 * Extreme stress upon relationships with significant others, sometimes resulting in divorce; extreme stress on peer relationships, or relationships with colleagues
 * Weakening of support network, or being ostracized from professional or academic circles (friends, colleagues, or family may distance themselves from the victim)
 * Having to relocate to another city, another job, or another school
 * Loss of references/recommendations

Some of the psychological and health effects that can occur in someone who has been sexually harassed are: depression, anxiety and/or panic attacks, traumatic stress; post-traumatic stress disorder (PTSD), sleeplessness and/or nightmares, shame and guilt, difficulty concentrating, headaches, fatigue or loss of motivation, stomach problems, eating disorders (weight loss or gain), feeling betrayed and/or violated, feeling angry or violent towards the perpetrator, feeling powerless or out of control, increased blood pressure, loss of confidence and self esteem, withdrawal and isolation, suicidal thoughts; suicide.