Sexual Harassment Awareness and Prevention
April 11, 2019 | Aging Services Risk Management
Sexual harassment is a form of sex discrimination that violates Title VII of the federal Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including federal, state, and local governments. It also applies to employment agencies and labor organizations.
Although policymakers and the media are increasingly scrutinizing the issue, sexual harassment continues to occur in the workplace. C. Brady Wilson, PhD, a psychologist in Scottsdale, Arizona, who specializes in sexual harassment and workplace trauma, notes that when organizations are faced with allegations of sexual harassment, unacceptable responses remain common, such as acting "to close ranks, admit nothing and blame the victim" (quoted in Smith BL). Organizations must guard against taking this approach.
The Equal Employment Opportunity Commission (EEOC) defines sexual harassment in accordance with U.S. Department of Labor regulation 29 CFR § 1604.11, which states that "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."
The U.S. Supreme Court sets out two types of sexual harassment under the Civil Rights Act: quid pro quo harassment and hostile-work-environment harassment. In recent court cases, quid pro quo claims are referred to as harassment based on threats of a "tangible employment action." Claims of a tangible employment action may involve pressure for sexual favors in return for professional benefits. Another type of tangible employment action claim is constructive discharge, where a claimant would allege that he or she felt forced to leave the organization because of sexual harassment.
Hostile-work-environment violations are often subjective, and charges by the EEOC do not hinge on whether a complaint was made by the individual to whom the harassment was directed; onlookers may also be considered victims (U.S. EEOC "Enforcement"). Harassment does not have to involve either tangible employment actions or a hostile work environment—claims can simultaneously be both, in the eyes of the court (Lockwood).
"Unwelcome" is the key to determining whether behavior constitutes sexual harassment. A consensual sexual relationship between staff members is not within the scope of this guidance article. However, such relationships may violate the American Medical Association's (AMA) Code of Medical Ethics. "Sexual relationships between medical supervisors and their medical trainees raise concerns because of inherent inequalities in the status and power that medical supervisors wield in relation to medical trainees and may adversely affect patient care. Sexual relationships between a medical trainee and a supervisor even when consensual are not acceptable regardless of the degree of supervision in any given situation. The supervisory role should be eliminated if the parties involved wish to pursue their relationship." (AMA "Code" Opinion 9.1.3) For more information about liability for a supervisor's actions, see Supervisor Redefined. Also see the guidance article [Event Reporting in Aging...