Harassment: How to handle unsolicited sexual advances
By Ashley Mackin
The sexual harassment allegations against San Diego Mayor Bob Filner have men and women across the county discussing a very uncomfortable subject.
Though details are still emerging, former San Diego City Councilmember Donna Frye announced on July 11 that she “received credible evidence of more than one woman being sexually harassed by (Filner).”
The La Jolla Light took questions about sexual harassment to a La Jolla law firm specializing in workplace regulations to learn the best course of action if an employee is confronted with the situation.
Sexual Harassment defined
Fair Employment and Housing Commission regulations (listed online at bit.ly/sexharassment) define sexual harassment as “unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature.”
This definition includes many forms of offensive behavior, regardless of the gender of either party.
The Department of Fair Employment and Housing will go to bat for accusers, though an actionable complaint must be filed within a year of the alleged harassment.
Types of harassment
La Jolla attorney David Monks with Fisher & Phillips LLP (a firm that conducts sexual harassment training and specializes in employment law and harassment in the workplace) said there are two types of sexual harassment: Quid Pro Quo and Hostile Work Environment.
Quid Pro Quo, which is Latin for “this for that,” is the type of harassment in which somebody, usually a supervisor or manager, uses sexual advances to affect the conditions of that worker’s employment. They might say or imply “if you have sex with me, then good things will happen to you and your employment” or “if you don’t’ have sex with me, bad things will happen.”
In a Hostile Work Environment, the harasser engages in “conduct of a sexual nature that is so severe or frequent, that it effectively alters the conditions of employment and creates a hostile working environment for the victim.”
Examples of such behavior include physical contact; verbal harassment, including jokes or comments; and leering or staring.
If you’re harassed or witness harassment
1) If someone suspects they are being harassed or that the behavior they’re subjected to qualifies as such, Monks recommends first going directly to the harasser and telling them to stop.
“It’s not easy for many people to do that, and that’s understandable,” Monks said. “It’s not a requirement, but if the person has the fortitude to stand up and speak up and tell a person ‘I don’t like what you are doing, please stop it,’ that is one way to get the conduct to end.”
2) If that doesn’t work or if the person does not feel comfortable doing that, Monks said the next person to talk to would be the human resources director. That director would then work with the employer to try and stop the harassing behavior.
“The employer wants to have an opportunity — before there is legal activity — to know what’s going on and to investigate,” Monks said. “Assuming they corroborate that some or all of the claimed conduct has occurred, they want to take steps to ensure that harassment stops.
“I truly believe 99.9 percent of employers want to do the right thing. They don’t want there to be sexual harassment and care if there are allegations. If there are, they want it to stop. No matter how minor it might seem; employers don’t want it to get bigger.”
Why victims don’t come forward
Monks said there are two common reasons people don’t come forward right away with allegations.
The first is that they might not be ready for the scrutiny and having private, embarrassing information be made public.
The second is that they have already contacted a lawyer, who suggested they not speak about it.
“The attorney might not be ready, even if the client is, for the case to start getting that type of open disclosure until their investigation is complete,” he said. “The attorney presumably would collect information from the client, but also have interviewed employees or former employees that may know something about the conduct,” before going forward with any legal action.
To avoid a he-said/she-said situation, Monks said the most powerful evidence for an HR director all the way up to a lawsuit, is documentary evidence and witness testimony.
Documentary evidence, such as e-mails, photos, images or written messages that contain inappropriate remarks, are “almost impossible to refute,” he said.
However, documentation can also show — based on the victim’s response — they were not actually offended or gave no indication of being offended.
When documentation is not available, evidence in the form of other people can be powerful, Monks said. In cases where the accused sees things differently than the accuser, third parties can often break the tie.
Getting a conviction
If a sexual harassment suit goes to court, a judge and/or jury would use available evidence as well as what is referred to as the “reasonable person standard,” which asks if a reasonable person in the same situation would find the conduct offensive.
“There has to be a real pattern of ongoing sexual conduct that is offensive in the mind of a reasonable person,” Monks said, to secure a conviction.
Examples of Harassment
As defined by the Fair Employment and Housing Act
■ Unwanted advances
■ Offering employment benefits in exchange for sexual favors
■ Making or threatening reprisals after a negative response to sexual advances
■ Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoons or posters
■ Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes
■ Verbal sexual advances or propositions
■ Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations
■ Physical conduct: touching, impeding or blocking movements, assault
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