By Al Link
The following document is a draft sexual harassment guideline for business and other organizations.
We shall take all reasonable steps to see that this sexual harassment policy is followed by all employees, supervision and others who have contact with employees. This prevention plan will include training sessions, ongoing monitoring of the work site and a confidential employee survey to be conducted and evaluated each year.
Sexual harassment refers to all types of unwanted sexual attention. Sexual harassment does not mean occasional compliments of a socially acceptable nature. Sexual harassment refers to conduct which is offensive to the individual, which harms morale, and which interferes with the effectiveness of our business. This includes pressure to provide sexual favors, and offensive, intimidating comments or actions concerning one's gender or sexual orientation. There are four basic types of sexual harassment:
It is impermissible to suggest, threaten or imply that failure to accept a request for a date or sexual intimacy will affect an employee's job prospects. For example, it is forbidden either to imply or actually withhold support for an appointment, promotion or change of assignment or suggest that a poor performance report will be given because an employee has declined a personal proposition. Also, offering benefits such as promotions, favorable performance evaluations, favorable assigned duties or shifts, recommendations or reclassifications in exchange for sexual favors is forbidden.
Any employee found to have violated this policy shall be subject to appropriate disciplinary action according to the findings of the complaint investigation. If an investigation reveals that sexual harassment has occurred, the harasser may also be held legally liable for his or her actions under provincial and federal law. Anyone making a false claim of sexual harassment will also be subject to disciplinary action.
Any employee bringing a sexual harassment complaint or assisting in investigating such a complaint will not be adversely affected in terms and conditions of employment, or discriminated against or discharge because of the compliant. Complaints of such retaliation will be promptly and thoroughly investigated.
Sexual harassment can occur in any situation, but is especially common in situations where there is a power imbalance between the perpetrator and the victim, due to gender, race, sexual orientation, status or rank differences. Sexual harassment, however, can also occur between peers. Both women and men can be victims of sexual harassment, although it is most common for women to be harassed by men. Sexual harassment also occurs between members of the same sex.
Sexual harassment differs from healthy sexual attraction because it is unwelcome and unsolicited. Sexual conduct becomes unlawful only when it is unwelcome. The challenged conduct must be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive. NOTE: An employee who was previously involved in a mutual consenting intimate relationship with another person maintains his or her entitlement to protection from sexual harassment, but s/he should inform the other party that any further sexual advances are unwelcome.
Sexual harassment degrades all persons and creates a hostile work environment. It is extremely costly for employers as well as damaging to employees. The effects of sexual harassment on the complainant may include loss of self-confidence and self-esteem, physical symptoms of stress, diminished work productivity, and low morale.
To fight sexual harassment, remember four tactics: confront, report, document, and support.
CONFRONT the harasser. Say No
Clearly. Inform the harasser that their attentions are unwanted. Make clear you find the behavior offensive. If it persists, write a memo to the harasser asking them to stop; keep a copy.
REPORT the problem immediately, verbally and/or in writing directly to your supervisor, or to the supervisor of the accused, and to your union steward. Our door is always open and anyone who has been harassed or thinks harassment is occurring, can seek our confidential advice. We will speak with the accused at your request and inform them about illegal conduct and its consequences.
We have a zero-tolerance policy for sexual harassment. If the incident is confirmed, the offending employee faces the following possible sanctions: verbal or written reprimand, negative evaluation, denial of promotion, poor recommendations, suspension, demotion, forced resignation, and termination.
We will make every effort to create an atmosphere of comfort for recipients of sexual harassment to request assistance in the resolution of complaints, but at the same time we will also protect the rights of the accused until proven guilty.
Note: A single sexual advance, unless severe, may not constitute harassment unless it is linked to the granting or denial of employment or employment benefits. The unwelcome, intentional touching of a person's intimate body areas is sufficiently offensive to be considered severe, and even a single incident can be considered as harassment. Asking someone for a date is not considered severe. But a repetitive series of non-severe incidents will be considered harassment if the offender was told to stop. It is important for the victim to communicate that the conduct is unwelcome, particularly when the alleged harasser may have some reason to believe that the advance may be welcomed such as a previous consenting relationship.
There are some acts perceived by the recipient to have a "sexual nature" that are offensive and annoying, but may not be sexual harassment. These offensive behaviors in the workplace pollute the working environment. Therefore, these acts have been labeled sexual pollution. Sexual pollution has the potential of becoming a sexually harassing act. It is an offensive act and should be considered improper. Examples of sexual pollution are: continuous "pet" name calling, such as "baby," "sweetie, "or " honey"; referring to an individual as a "hunk," "fox," or "broad"; referring to men in general as "dogs," "swine," or to women as "bitches," "wenches, " or "chicks"; remarks of a sexual nature, open displays of written and pictorial erotica, or nude photographs or posters (such as a nude magazine centerfold) in the workplace, and continuous gift giving with the intention of getting sexual favors in return.
A single act of sexual pollution by itself may not constitute sexual harassment. However, continuous acts with the appearance of a sexual nature probably would be. The "reasonable person" standard will be used to determine if it is or not.
DOCUMENT the harassment. While the incident is still fresh in your mind, write down what happened, where, when, and how you responded, if possible, word for word. Include the names of witnesses, if any. Keep notes in a journal or notebook to show a continuous record. Send a dated, certified, return-receipt letter to the harasser, asking that the harassment stop, and keep a copy for yourself. Use your telephone answering machine to tape phone calls from the harasser, and save phone messages that are left for you. Keep the records in a safe place, away from work. Documentation will be essential if you must defend yourself in court or before an administrative hearing panel. Document your work. Keep copies of performance evaluations and memos that attest to the quality of your work. The harasser may question your job performance in order to justify his behavior.
SEEK SUPPORT from others. Talk to a friend, colleague, or relative, an organized group, or counselor, and your supervisor or someone in personnel that you trust. Not only will you benefit, you may learn of others who have had similar experiences who can offer strategies for dealing with the harassment and support. Look for witnesses and other victims. You may not be the first person who has been mistreated by this individual. Ask around discretely; you may find others who will support your charge. Two accusations are much harder to ignore. Get the union steward involved right away.
REMEDIES AVAILABLE TO VICTIMS OF SEXUAL HARASSMENT
If you have been discriminated against on the basis of sex, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay and other remuneration. You may also be entitled to damages to compensate you for future pecuniary losses, mental anguish and inconvenience. Punitive damages may be available, as well, if an employer acted with malice or reckless indifference. You may also be entitled to attorney's fees.
ARE YOU THE HARASSER?
Those accused of sexual harassment are often surprised to learn how their behavior is perceived by those who feel victimized by such behavior.
SEXUAL HARASSMENT COMPLAINT INVESTIGATION PROCEDURE
Every complaint will be thoroughly investigated. When a complaint of sexual harassment is received we will take the following actions:
Here is what we are trying to determine with our investigation:
Is the testimony of the victim internally consistent? Is the testimony of the accused internally consistent? Does each follow logically? Are both accounts externally consistent? Does the victim's account jibe with the testimony of witnesses? Does the accused's account jibe with the testimony of witnesses? Did the accused have time to do what the victim alleged? Does the victim have any possible motive for falsely implicating the accused? Could the harassment have happened at the time and location specified? Despite the fact that there were no witnesses, could the harassment have taken place at the time and the location?
We will not assume the accused is guilty, but neither will we attach much significance to a general denial by the accused harasser. We will search completely and thoroughly for evidence that corroborates either side's story. We will do this by:
We will ask other employees if they noticed changes in the accusing individual's behavior at work or in the alleged harasser's treatment of him or her. We will look for evidence of other complaints, either by the victim or other employees. We will follow up on evidence that other employees were sexually harassed by the same person. In order to make a fair and legal decision on a sexual harassment complaint we need to find out as much information as we can, not only on the incident itself, but also on the victim's and accuser's personalities, surroundings, and relationships. To accomplish this task, we need to not only ask many questions of the victim and accuser, but also of any witnesses to the incident and the surrounding environment.
Here are some questions we may ask the victim:
Specific to the incident, what happened? When did it happen? Where did it happen? What preceded the incident? What did the harasser do or say? What did you do or say? What happened in addition to or since the incident? Who may have seen or heard the incident? With whom have you discussed the incident?
Here are some questions we may ask the accused:
Specific to the incident, are you attracted to (name the employee)? Do you ever think of (name the employee) in a sexual way? Have you ever touched (name the employee)? Have you tried to kiss (name the employee)? (Describe the alleged incident.) Please give me your version of the incident. Did you offer (name the employee) help with his/her career in exchange for his/her affection?
Here are some questions we may ask any witnesses:
Have co-workers complained about inappropriate behavior in the department? Have you personally noticed or been offended by inappropriate behavior? Please describe any inappropriate or offensive behavior that you have experienced or witnessed. Are there any calendar pictures or posters displayed which offend you or someone else? Have offensive jokes or comments been made about people in the department? (If the answer to the above question is yes then ask:) Who made these remarks and what was said? Specific to the incident (describe the time and place of the incident, then ask:), Did you notice anything in your department that may have disturbed you or another employee? Did you hear a conversation involving (name the employee)? Did you see anyone talking to this employee? Did you observe any interaction between this employee and a co-worker or supervisor?
MYTHS ABOUT SEXUAL HARASSMENT
For many people, sexual harassment is an uncomfortable, disturbing and even frightening experience. It can be extremely disruptive to one's lifestyle to face a continuous barrage of unwanted comments, to rearrange one's schedule to avoid certain people, and to simply live in a constant state of wariness. As a result, harassment can have devastating effects on one's performance at work, one's comfort and self-esteem and physical health. Often, people are afraid of addressing the harassment they experience because they fear that the perpetrator will exercise their power in a disadvantageous way. For example, one might fear losing a promotion, getting a poor evaluation, or being fired if one protests or even acknowledges the harassment.
People who are sexually harassed often wrongly assume that the cause of their problem is in their own conduct, and therefore are very hesitant to confront the instigator, or to discuss the problem with an authority or even a friend. Others try to downplay the existence of the harassment in the hopes that it will simply end. But victims are not to blame for the behavior of their harasser, nor should they pretend that the negative effects they're experiencing don't exist, because they probably won't go away by themselves.
We understand that if you have been the victim of sexual harassment you may not have told the harasser to stop for a variety of reasons. If you come forward to us with your complaint, this is how we will help you.
We will not treat your complaint as trivial. All complaints will be taken seriously, but there is a wide degree of difference between incidents. You and the person accused will be advised of your right to union representation. Less serious complaints can be handled informally. For example, the supervisor may call in the person who has been complained about and reiterate the policy and make admonishments where necessary for the employee to modify his or her behavior. We will first try to resolve the issue informally without a formal complaint, unless the incident was unambiguous and severe, in which case a formal procedure will be implemented immediately. It is up to you to decide how serious the situation is. You will not be pressured to handle the incident informally. If the situation is adequately resolved with an informal procedure, no further action shall be taken. If the matter is not resolved to the complainant's satisfaction through informal resolution, a formal procedure will be implemented.
We will ask you if you feel comfortable asking the harasser to stop, or would prefer third-party intervention from us. You may choose to accept the self-help approach. If so, approach the harasser and say "I want (whatever the sexually harassing behavior is) to stop immediately" in a firm and assertive manner. This approach gives you an active role in the resolution process and a sense of "empowerment." Telling the harasser to stop will often deter the harasser from subsequent and more progressive acts of sexual harassment.
We will instruct you to keep a record of the incidents of sexual harassment. You should record all incidents, dates, times, places, and witnesses who heard or saw the incident. You should seek information about others who may have been similarly harassed, but it would be better to do this only after you talk to us. These persons may be important components in the grievance resolution process if a formal complaint is filed. You will want to contact the individuals perceived to be targets of sexual harassment before disclosing their names. This action should be discrete and kept confidential for your own protection and also to be absolutely fair to the accused. Information should be disclosed only on a need to know basis and with the understanding that the recipient has a duty to preserve confidentiality. We will closely monitor the situation to ensure that there is no retaliation against you or any possible witnesses.
The next step is to consider writing a letter in which you request an end to the harassing behavior. Writing a letter to the harasser has been a controversial issue because it may trigger questions of legality, confidentiality, admissible evidence, and due process. However, if the letter is kept CONFIDENTIAL and is written in a "polite" yet direct manner, these questions will not arise. The letter should contain the following:
Generally writing a letter is more powerful than a verbal message telling the harasser to stop. Writing a letter is an important step toward ending the sexual harassment. Other advantages of writing a letter are as follows: