Question: GOP presidential candidate Herman Cain said he once brought his hand to his chin when talking with a female employee and mentioned that the woman was the same height as his wife. Is that sexual harassment? What is the legal definition of sexual harassment in the workplace?
Answer: The legal definition of sexual harassment is "unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment."
On the face of it, Herman Cain bringing his hand to his chin and remarking that the woman was the same height as his wife would likely not meet the standard of "severe or pervasive." The inference on his part was that it was this innocuous behavior that led to a complaint and resulted in a monetary settlement. In doing so he potentially sends a misleading message about the intent of sexual harassment law and the implementation of sexual harassment policy in the workplace.
Q: What should I do if I believe I am the victim of sexual harassment in the workplace? What can I do if my supervisor doesn’t take any action after I report harassment or if it is the most senior person who is doing the harassing?
A: If you believe you are being sexually harassed, you have several options. While each person needs to decide what plan of action is best for his or her situation, many individuals have found informal action facilitates the fastest resolution with the fewest complications.
First, you might want to tell the individual that the behavior is offensive and request they stop. This can be done either verbally or in writing. Document your verbal communication or keep a copy of your written statement. Communicating directly to the individual isn’t necessary or required, but it stands to reason that someone won’t stop something if they don’t know it is bothering you.
If the harassment involves the most senior person, tell someone in your company such as another manager or your Human Resources Department.
If a supervisor does not take action on your report, consider informing the supervisor’s manager or someone else in management and/or HR. You also have the option to file a complaint with either the Federal EEOC or Hawaii Civil Rights Commission. Be aware there are deadlines in which a complaint must be brought. In evaluating your complaint, the EEOC and HCRC will take into consideration whether you made a reasonable effort to resolve the issue within your own company.
Q: As a manager or owner of a business, what should I do if an employee tells me he or she has been sexually harassed?
A: When an employee comes to you with an allegation of sexual harassment, take the situation seriously and be sensitive to the fact that it’s a difficult subject to discuss. Try to get a complete picture. The employee probably will be upset and might focus on feelings. It’s up to you to listen carefully and, when the employee calms down, to probe for concrete details using who, what, when questions.
Find out what remedy the employee is seeking. Let the employee know that you will take action to make sure the unwelcome behavior stops. You are required to do so even if the employee doesn’t want to.
Avoid asking questions that imply some wrongdoing or leading behavior on the part of the complainant: "What were you doing that made him say that?" "Why do you wear such a low-cut dress around the office?"
Avoid minimizing or discounting the level of distress felt by the complainant. Their feelings are real and legitimate and need to be accepted and respected, even if you don’t understand why they are so upset. Don’t say things like, "It’s not so bad," "I’m sure she didn’t mean anything as bad as that," "I’m sure it was a misunderstanding, joke, compliment or rare occurrence."
All complainants should be made aware that retaliation of any form against the complainant will not be tolerated and will be subject to discipline.
Undertake a prompt, thorough and impartial investigation and periodically follow up with the employee to assure the harassment has stopped.
Document everything.
Q: What should I do as a manager or owner to minimize the risk of being sued for sexual harassment?
A: The best way to minimize risk is prevention.
As a manager or owner, there are three primary actions you should take:
» Adopt a sound anti-harassment policy.
» Provide periodic training for all levels of employees on the policy.
» Conduct prompt investigation and enforcement of the policy.
One of the best employer strategies for minimizing risk is having an Employee Assistance Program.
Interviewed by David Butts. "Akamai Money" seeks out local experts to answer questions about business in Hawaii. If you have an issue you would like us to tackle, please email it to business@staradvertiser.com and put "Akamai Money" in the subject line.
