SEXUAL HARASSMENT: “The Boomerang Effect”

SEXUAL HARASSMENT: “The Boomerang Effect”

A landmark decision was made by the Supreme Court in 1986 when the Court ruled that sexual harassment is a form of discrimination prohibited by Title VII of the Civil Rights Act of 1964. This far reaching decision made by our country’s highest court has had an incredible impact on the country’s workplace in general and in each individual office in particular. Whenever this particular form of discrimination rears its ugly head, huge consequences lie ahead for the perpetrator(s) much less the victims. Sexual Harassment can and will have a boomerang effect on the entire organization.

Over the course of the past 30+ years since the Supreme Court re-addressed the issues, responsibilities, and potential liabilities of both employers and employees through the EEOC (Equal Employment Opportunity Commission) regarding sexual harassment, set guidelines that define sexual harassment discrimination as:

  1. Unwelcome sexual advances, or requests for sexual favors, or verbal/physical conduct of a sexual nature under the conditions defined as hostile work environment.  
  2. Another defined sexual harassment behaviors are related to sexual requests that one submits to or doesn’t submit to that impact the term or condition of their employment.

Quid Pro Quo: Sexual Harassment behaviors as a basis for employment  decisions. Such as job duties, promotions, salary etc.

Since the conditions for sexual harassment hostile work environment involves unwelcome conduct that is of a “sexual nature” it is the responsibility of both employers and employees to understand what is acceptable and what is not acceptable behavior at the workplace. When that line is blurred, the “boomerang effect” (when discriminatory policies/practices result in financial or other penalties to the employer) may result.

The challenge for most companies, in today’s rapidly changing workplace, is to keep that environment free from the two major types of sexual harassment, namely: quid pro quo and hostile work environment. The former, literally means “this for that” which implies that “sexual favors” will be exchanged for a job promotion, job loss, raise, or other job related activity. A more prevalent problem is called a “Hostile work environment” is where an “abusive, continuous, repetitive, or overall pattern at the workplace negatively affects an individual’s work performance.”

Both forms of sexual harassment are not to be tolerated but there are many “subtleties” of the hostile environment that could cause confusion in either policing the workplace or not understanding this form fully. Let’s take a closer look at this form of sexual harassment to avoid, as much as possible, the boomerang effect that may befall an individual much less the employer.

A hostile work environment occurs when there is “abusive, repetitive, and intimidating conduct of a sexual nature becomes part of an overall pattern directed towards a specific individual or group of employees and that behavior negatively affects a person’s ability to  do the job.” It is important to note that a single incident may be of such severity that it, alone, creates a hostile work environment. An example can be: Every time Joanne walks by the work crew, the  work crew always makes crude comments and lewd remarks.

Whether it’s a written or verbal joke, picture/photo, cartoon, e-mail, touching/threat/force it is not the intent that’s the issue but rather the consequences of that behavior that are the important factors of what constitutes a hostile work environment. What is important to understand with all forms of sexual harassment under the heading of hostile work environment is, what may be “acceptable” to one person may not be acceptable behavior to another.

All of us have different interpretations of “jokes” and all of us have a different “sense of humor”. If just one individual in the workplace finds a picture/ joke/cartoon/email or other category offensive to him or her, then that individual may feel that  the workplace supports a hostile work environment, the boomerang effect, may be in effect. All it takes is just one person to take offense to what is said, what is shown, what is condoned for a hostile work environment to occur.

Responsibility for keeping the workplace free from sexual harassment falls on the harasser or the harasser’s employer. Why?  A company has what is known as “constructive knowledge” when a company knew or “should have known” about harassing conduct because of general information and “should have recognized” if the behavior was inappropriate. Then, the company is responsible for taking immediate and appropriate corrective action if an employee comes to the manager that there might be sexual harassment. Immediate and appropriate action is needed to investigate the situation. The boomerang effect can and will occur if action is not taken.

My name is Bob Hartman, a veteran sexual harassment and leadership training consultant, well versed in the area of sexual harassment prevention and other EEO related topics. I have over 30 years of experience in delivering seminars on a variety of EEO, management /supervisory, diversity topics to all levels of personnel. 

My clients related to sexual harassment prevention trainings have included: AMTRAK employees and supervisors, Amerada Hess Company management and employees, the State of New Jersey, and General Motors among others. Moreover, I am familiar with both state and federal laws as they pertain to sexual harassment compliance and am available to conduct both live and virtual seminars on sexual harassment prevention to your company’s employees and management. 

Connecticut Sexual Harassment Training Compliance Requires

Employers with 50+ are required to provide two hours of sexual harassment training prevention for supervisors within six months of the start their employment.  Whether it is done through elearning or face to face participants should be able to ask questions and receive answers.  Per:  Conn. Gen. Stat. § 46a-54(15)(B)). Conn. Agencies Regs. § 46a-54-204.

New York Sexual Harassment Training Compliance Requires

New York state law defined in § 201-g of the New York Labor Law, requires employers to provide sexual harassment training prevention and policies by conducting annual sexual harassment training for employees and supervisors. The New York State offered a model policy and training program requiring employers to adopt these, or exceed the minimum standards set forth in the sexual harassment prevention model policy and training program.

The State’s model sexual harassment training be “interactive” and must include four specific points:

  1. First, an “explanation of sexual harassment” following guidelines set by New York State Division of Human Rights (DHR);
  2. Specific examples of such behavior that constitutes sexual harassment;
  3. To provide information regarding state and federal laws which address sexual harassment, along with suggested remedies available to those who have experienced sexual harassment; and
  4. To provide company information for internal procedures on reporting, investigating, and adjudicating complaints.

An amendment to New York Cities Human Rights Law (NYCHRL) included more requirements for such annual sexual harassment training. The local law, now codified at N.Y.C. Admin. Code § 8-107(30), includes a more detailed definition of training to include “interactive training.” This may involve interaction between the trainer and trainees in role play, case studies etc whether in person or via video teleconferencing. 

Training may also suffice if it includes student participatory online computer programs that do may directly interact with the instructor. It must consist of more than simply watching a video and taking quizzes.

New York City’s law go on to demand that sexual harassment training include the below four elements found in state law. 

– Include an Employees’ right to complain to agencies like the New York City Commission on Human Rights and with the (EEOC) Equal Employment Opportunity Commission;

– Prohibits any unlawful retaliation for an employee reporting an alleged sexual harassment complaint, examples;

– What bystanders may witness showing ongoing sexual harassment and how they can intervene; and

–What are the  Supervisors’ and managers’ responsibilities to Stop and Prevent sexual harassment,which show examples of how they can manage and meet these obligations.

New Jersey’s Sexual Harassment Training Compliance Requirements: 

On the Way Employers Can Get ahead of the new laws: New Jersey’s Stand Against Sexual Harassment and Discrimination

New Jersey is among an increasing number of states taking a strong stand against sexual harassment,  discrimination and retaliation in the workplace. As of September 14, 2020, a NJ Bill A4637 (Proposed Amendment and/or the Bill), to amend New Jersey’s Law Against Discrimination.

The Proposed Amendment includes:  

-Requiring training, policies, and investigations; 

-Expanding employee coverage and the statute of limitations under NJLAD; 

-Codifying unlawful harassment and the standards for hostile environment claims;  

-Clarifying the employer’s use of the Aguas/Faragher-Ellerth Affirmative Defense; and 

-Imposing new broad employer reporting requirements for complaints of unlawful sexual harassment or other forms of discrimination in the workplace.. 

Including: 

Interactive and Participatory Training Required for ALL Employers & “Live” Training Required for Employers with 50 or More Employees.  Provide training in a live, in-person setting where participants can ask questions.

Both large and small businesses with more than or fewer than 50 employees, regardless of size, also must provide training to employees within one (1) year from the effective date of the law and at least once every two (2) years thereafter.  

In addition, employers must provide training to all new employees within 90 days of the employee’s initial hire date. 

 The training must include: 

-Definitions with examples of unlawful discrimination and unlawful sexual harassment in the workplace;

-Information showing how bystanders can intervene;

-A description of how to file an internal complaint of discrimination or sexual harassment;

-Directions as to how to contact the DCR to file complaints for violations;

-Describe what is retaliation and the sanctions for violators such as supervisors who knowingly allow the conduct.

Contact us for more information related to the above states including New Jersey Sexual Harassment Training requirements.

While I am based in New Jersey,  I am currently available to conduct sexual harassment prevention seminars in New Jersey /New York /Connecticut.  I look forward to hearing from you and can be contacted at: (707) 282-9193 or info@employeeharassmenttraining.com

 

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