26 February 2012

What Is Sexual Harassment?

As women working in an office, this is unfortunately something we will come across at some time in our careers.  I think men probably experience it as well, but it is not reported as often.

I recall as a young woman working for a large mostly male organization in the late 70s, it was just an expected thing that you would get your bum pinched while walking past someone's desk or have sexual remarks made about you. At the time I just went with the flow and thought it was normal, although I found it uncomfortable. Nowadays this would not be acceptable behaviour. We have come a long way in the law, but also in our thinking on what good office behaviour is.

Further to my blog post on Workplace Harassment and Bullying, I was contacted by a lawyer from California who asked if they could post an article on sexual harassment.  I thought it would be interesting to hear from an expert so they could actually give us real examples and options, but I also wanted to hear from an American lawyer.  Canadian and American law can be very different as well as from state to state and province to province.

Please read the article below sent by an employment law lawyer from California.

Sexual harassment is a serious charge with serious consequences. A victim of sexual harassment may suffer emotional and mental (and even physical) injuries, feelings of humiliation and helplessness, and have their reputation for honesty or good character unfairly maligned.
Administrative assistants, secretaries, paralegals and others with similar job descriptions are often at greatest risk for the type of demeaning conduct or behavior directed at them which could lead to a claim of sexual harassment. Everyone has dealt with obnoxious supervisors, bosses, colleagues and co-workers, but when a certain line is crossed tolerable offensive behavior becomes unacceptable harassment. And since administrative assistants tend to be women who work (for the most part) with men, the traditional power disparities between the sexes that exist in society tend to be magnified in the workplace.
But sexual harassment, which is generally defined as unwanted and unwelcome behavior of a sexual nature, is a touchy subject (no pun intended). Although some conduct may be so egregious that no reasonable person would think it was anything other than sexual harassment, the law does not clearly define what type of conduct or behavior is prohibited; what is merely offensive or distasteful to one person may be unacceptable and intolerable to another. In the end, it comes down to a question of how a reasonable person in the shoes of the person claiming sexual harassment would react in the same circumstances.
An article published in the online edition of the USA Today by an employment law expert looked at several sexual harassment cases and provides a helpful examination of this complicated area of the law.
In one case cited by the author, a female employee at a manufacturing plant filed a sexual harassment lawsuit after co-workers made lewd comments about her, called her vulgar names, and engaged in other offensive behavior after it became known that she had posed nude in a nationally-circulated motorcycle magazine. A court held in her favor, finding that although she may have invited such attention outside of work, she did not want or ask for that attention at work, she did not speak or act in a sexually provocative way at work, and she complained repeatedly to management about the behavior of her co-workers, and eventually quit when it did not stop.
“Postcards from the Edge”
In another case, a female employee at a machine shop used sexually explicit language at work, laughed at dirty jokes that were told by others at work, and displayed at her desk a sexually-themed postcard that was given to her by a co-worker. However, she sued for sexual harassment after co-workers continually passed around copies of adult men’s magazines at work, used sexually abusive language toward her and other female employees, posted sexually-themed cartoons in the workplace, and sent her sexually-themed postcards. After management failed to respond to her complaints, she quit. The jury in this case did not hold the employee’s own behavior against her since she, like many other women in male-dominated work environments, felt it necessary to tolerate a certain degree of coarse behavior, and even “play along” in some instances.
While these examples tend towards the extreme and have unique facts, they do show you how subjective sexual harassment is. It is not like speeding or drunk driving, where the relevant facts can be ascertained fairly easily through the use of technology and applied to the case at hand. Not so with sexual harassment – it is all in the “eye of the beholder”. Reasonable people could look at a set of facts and reach entirely different conclusions. No doubt everyone has felt uncomfortable at one time or another because of a comment, joke, conversation or interaction with someone at the office. But do those whispers, looks or remarks rise to the level of sexual harassment?
Only a judge or jury can answer that question for sure, but before it gets to that point, it would be a good idea to consult with a sexual harassment lawyer who can tell you what the law is and whether your facts can support a claim of harassment. An experienced sexual harassment lawyer can give you a fairly good idea of whether a jury will perceive your experience to be so outrageous that someone ought to pay for it.
Marcelo Dieguez is a practicing lawyer at Diefer Law Group and specializes in employment law and as a sexual harassment lawyer in Orange County and throughout California.
Please See: “What constitutes sexual harassment?” Jane Howard-Martin, USATODAY.com, December 18, 2002


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Guadalupe Puthoff said...

Yes, sexual harassment is subjective especially the verbal form. Many things are considered like the nature of the petitioner and respondent and the nature of the harassment. In these cases, it would be advisable to weigh the options and consequences first, and seek the advice of experts to avoid further damages.

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