Sexual Harassment Prevention in the Workplace
Sexual harassment in the workplace is prohibited under Title VII of the Civil Rights Act of 1964 as a form of sex discrimination. For HR professionals preparing for the SHRM exam, understanding the types of harassment, employer liability, and prevention strategies is critical. The EEOC defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that affects an individual's employment.
Types of Sexual Harassment
Courts and the EEOC recognize two distinct types of sexual harassment:
Quid Pro Quo Harassment
Quid pro quo (Latin for "this for that") harassment occurs when submission to or rejection of unwelcome sexual conduct is used as the basis for employment decisions. This type of harassment typically involves a supervisor or someone in a position of authority who conditions employment benefits (such as promotions, raises, or continued employment) on the employee's submission to sexual demands. Key characteristics include:
- It involves an explicit or implicit threat or promise tied to an employment decision.
- It must involve someone with authority to make or influence employment decisions.
- A single incident can constitute quid pro quo harassment.
- The employer is strictly liable for quid pro quo harassment by a supervisor.
Hostile Work Environment
Hostile work environment harassment occurs when unwelcome conduct is so severe or pervasive that it creates an intimidating, hostile, or offensive working environment. Unlike quid pro quo harassment, hostile work environment claims do not require a tangible employment action. To establish a hostile work environment claim, the following elements must generally be proven:
- The conduct was unwelcome.
- The conduct was based on the victim's sex (or other protected characteristic).
- The conduct was severe or pervasive enough to create a hostile or abusive work environment.
- There is a basis for holding the employer liable.
Courts evaluate the totality of the circumstances, considering the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee's work performance.
Employer Liability Standards
The Supreme Court's decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton established the framework for employer liability in harassment cases:
- Supervisor harassment with tangible employment action: The employer is strictly liable (no defense available).
- Supervisor harassment without tangible employment action: The employer may raise the Faragher/Ellerth affirmative defense by showing that the employer exercised reasonable care to prevent and promptly correct harassment, and the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer.
- Coworker harassment: The employer is liable if it knew or should have known about the harassment and failed to take prompt, effective corrective action.
- Non-employee harassment: The employer may be liable if it knew or should have known about the harassment and failed to take appropriate action.
Building an Effective Prevention Program
HR professionals should implement comprehensive harassment prevention programs that include:
- A clear, written anti-harassment policy that defines prohibited conduct and provides examples.
- Multiple reporting channels so employees can report harassment to different individuals.
- A complaint procedure that ensures prompt, thorough, and impartial investigation.
- Regular training for all employees, with additional training for managers and supervisors.
- Assurance of confidentiality to the extent possible during investigations.
- Protection against retaliation for anyone who reports harassment or participates in an investigation.
- Appropriate corrective action for substantiated complaints.
Conducting Harassment Investigations
When a harassment complaint is received, the investigation should begin promptly. Best practices for investigations include interviewing the complainant to understand the specific allegations, interviewing the accused to obtain their response, interviewing any witnesses identified by either party, reviewing relevant documents, emails, and other evidence, making factual findings based on the evidence gathered, taking appropriate corrective action if the complaint is substantiated, and documenting the entire investigation process.
SHRM Exam Tips
For the SHRM exam, focus on distinguishing between quid pro quo and hostile work environment harassment, understanding the Faragher/Ellerth defense, knowing the elements of an effective prevention program, and recognizing the different liability standards based on the harasser's relationship to the employer. Also remember that harassment based on any protected class (not just sex) can create a hostile work environment.