An Overview of Workplace Sexual Harassment
What is Sexual Harassment?
Sexual harassment is a form of workplace sex discrimination that violates both Maryland and federal law. Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature are sexual harassment when the conduct affects a worker's employment, when it unreasonably interferes with a worker's work performance, or when it creates an intimidating, sexually hostile, or offensive work environment.
Sexual harassment may occur in a variety of workplace situations, including the following:
- Sexual harassment may occur where submission to sex is made either explicitly or implicitly a term or condition of a worker's employment, or is used as a basis for employment decisions, such as hiring, firing, promotions and raises.
- The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or even a non-employee who comes into contact with employees.
- The victim does not have to be the person harassed, but could be any employee affected by the offensive conduct. For example, a supervisor who requires sexual favors from one employee may show favoritism toward that employee, but may also treat other employees more harshly.
- Touching or requests for sexual favors do not have to take place for conduct to constitute sexual harassment. For example, a sexually hostile work or offensive environment could exist in an office where frequent sexual jokes or pranks occur, and/or where the sharing of sexual videos, pictures and information among co-workers is condoned.
What Can the Victim of Sexual Harassment Do?
In general, the employer should be given notice by the victim of the sexual harassment, so that the employer has an opportunity to investigate it, and to take corrective measures, if that is possible. If the employer has a complaint mechanism or grievance system, the victim ordinarily should use it, particularly in the case of sexual harassment by a co-worker or a non-employee. However, there are exceptions to the general rule, such as, for example, where the employer's complaint mechanism or grievance system is a sham or requires the victim to present the complaint or grievance to the harasser for resolution, or where the harasser is so highly placed in the management organization that his or her conduct is imputed to the employer anyway. Corrective measures by the employer may include disciplinary action, training, separating the harasser from the victim in the workplace, and other measures.
Sometimes victims of sexual harassment delay coming forward because they were engaged in conduct that, at least on the surface, may have involved consent. However, assessing consent in a workplace situation is not always easy. For example, an employee who is engaged in an affair with a supervisor that began by consent may feel powerless to end the relationship later, because she is completely dependent upon the supervisor for her livelihood. Similarly, employees may appear to go along with sexual jokes or pranks in the workplace to fit in with the corporate culture, when in fact the behavior makes them uncomfortable.
Both the state and federal equal employment opportunity agencies have administrative complaint procedures for sexual harassment charges against employers with 15 or more employees. However, the filing deadline for a charge may be very short -- in many cases, less than one year. Employees who believe that they have been subjected to sexual harassment, but who fail to follow the administrative complaint procedures correctly and in a timely way, may lose or limit their rights to pursue their claims.
It is unlawful for an employer to retaliate against any employee who opposes sexual harassment, who files a sexual harassment charge, who testifies in a sexual harassment case, or who cooperates in an investigation or case relating to a claim of sexual harassment.
What Can the Employer Do?
Employers can avoid liability for sexual harassment by having clear written policies prohibiting sexual harassment in the workplace, by training managers to recognize and avoid sexual harassment, by having an effective complaint mechanism, and by acting promptly both to investigate sexual harassment complaints and to correct sexual harassment if it occurs.