Sexuality in the Workplace: Consensual Sexuality versus Sexual Harassment

1. Sexuality in the Workplace:Consensual Sexuality versus Sexual Harassment

2. “Sexuality in the Workplace: Organizational Control, Sexual Harassment, & the Pursuit of Pleasure,” by Williams, Giuffre, & Dellinger • This article focuses mostly on consensual sexuality. After examining this article, we will examine the issue of sexual harassment.

3. Studies of Office Romance • Some studies find that office romances increase job productivity & worker morale; others find the opposite. • These studies tend to focus on relationships between heterosexual white-collar employees, ignoring relationships among gays, lesbians, & blue-collar & service workers.

4. Office Romance Advantages Disadvantages • Add excitement to the work group; • Enhance communication & cooperation; • Increase creativity; and • Create a happier work environment. • Take time & energy away from work (late arrivals, early departures, long lunches); • Increase gossip; • Arouse jealousy & suspicion due to favoritism; and • Increase vulnerability to charges of sexual harassment.

5. Organizational Policies on Fraternization • Some organizations prohibit & monitor intimate involvements among employees (ex: religious organizations & the military). • Other organizations encourage the formation of intimate relationships. • Most work organizations fall somewhere in the middle, promoting some types of sexual relationships & prohibiting others.

6. Anti-Fraternization Policies • There are few legal protections for employees who lose their jobs because they date, cohabitate with, or marry a coworker. • The management policy & law literature recommend instituting a clear, written policy prohibiting fraternization – especially between supervisors & subordinates – & uniformly enforcing it.

7. Sexual Interaction as “Part of the Job” • In some restaurants, young women workers are hired to wait on mostly male customers. • They are required to wear skimpy uniforms, & their figures, make-up, & hair are strictly monitored. • The culture of these workplaces is highly sexual. • While getting these jobs can be a big self-esteem boost, the boost is short-lived & tenuous. There are frequent struggles with the usually all-male managers and with the customers. A high turnover among waitresses results.

8. There is a wide range of organizational responses to sexuality. • While many service workers are paid to be sexy & to engage in sexual innuendo with customers, in other jobs, mere rumors of sexual behavior can destroy a career.

9. Sexual Harassment NO!

10. Sexual harassment includes a broad range of objectionable behaviors, ranging from making sexual demands where refusal results in adverse consequences (such as dismissal, loss of promotion, reduced benefits, etc.), generally called quid pro quo harassment, to actions that are sufficiently offensive to result in a hostile or abusive work environment.

11. A hostile or abusive environment is one that a reasonable person would perceive to be such. Evidence of severe psychological injury or diminished job performance is not necessary.

12. Sexual harassment by a member of the same sex is also prohibited and judged under the same legal standards as those used to evaluate claims of sexual harassment by a member of the opposite sex.

13. Employers bear responsibility for preventing and eliminating sexual harassment from the workplace.

14. An employer is liable when sexual harassment results in “a tangible employment action such as discharge, demotion or undesirable assignment.” When there is no tangible action (as in hostile environment cases), an employer could still be liable, but could defend itself by establishing that 1. “reasonable care to prevent and correct promptly any sexually harassing behavior” has been taken, and 2. the employee “unreasonably failed to take advantage of any preventive or corrective opportunities” provided.

15. A strong, well-publicized employer policy against harassment combined with an effective grievance procedure are the best tools for employers to combat sexual harassment and to protect themselves from liability. In particular, 1. the policy must be effectively communicated to employees, 2. complaints must be promptly investigated, and 3. appropriate corrective action must be promptly taken.

16. Sexual Harassment Training • People need regular, effective training. A 30-minute briefing is not sufficient. Even if employees have read the company’s policy on sexual harassment, they tend to forget key points and need refreshers. • The training doesn’t stick unless it’s interesting (“edutainment”).

17. Goals of Sexual Harassment Training • Raise awareness and clarify misconceptions about what constitutes sexual harassment. • Inform managers of their responsibilities to provide a harassment-free work environment for all employees.

18. Sexual Harassment in Cross-cultural Business Relationships • Sexual harassment is a pervasive problem in many countries. • When business personnel travel out of the U.S., they need to be trained regarding the potential for sexually harassing behavior.

19. In some cases, once the employees are informed that the women in question are offended by the harassment, the behavior ceases. • Sometimes, the employee must be specifically told that his job would be terminated if the harassment continued.

20. Sexual Harassment when U.S. Companies do business abroad • If sexual harassment occurs abroad, American and American-controlled corporations are covered under Title VII of the Civil Rights Act. (Determining whether a company is “American-controlled” is a matter of legal interpretation.) • [Title VII of the Civil Rights Act makes it unlawful for any employer to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, condition, or privileges of employment because of an individual’s race, color, religion, sex, or national origin.]

21. Sexual Harassment when Foreign Companies do Business in the U.S. • Sexual harassment by a foreign employer operating in the U.S. is also covered under Title VII of the Civil Rights Act, unless the employer is protected by a Friendship, Commerce, and Navigation (FCN) Treaty.

22. Sexual Orientation • Human resource professionals and other business people should be aware of the fear that gay employees feel about coming out. • Gays fear the impact of coming out on their physical safety, opportunities for promotion, merit ratings, salary increases, and team cohesiveness. • The hostile environment faced by gays reduces their productivity.

23. The workplace is a social environment. • Gay people don’t want to talk about their sex lives any more than straight people do. • They just want to be able to talk about their partners, and what they did on their weekend or their vacations the same way that straight people do.

24. Sexual Orientation Harassment • The discussion that follows is based on a 1993 article, “Sexual Orientation and the Workplace: Recent Developments in Discrimination and Harassment Law,” by M.P. Norris & M.A. Randon, from Vol. 19 of the Employee Relations Law Journal.

25. In the majority of states and under Title VII of the Civil Rights Act of 1964, an employer is not required to provide gays with a working environment free of harassment resulting solely because the employee is gay. • However, employers must guard against direct gay advances, as such advances may give rise to charges of quid pro quo or hostile environment sexual harassment.

26. How, if at all, do claims of sexual harassment involving same-sex sexual advances differ from traditional claims of opposite-sex sexual harassment? • Sexual harassment claims were originally based on the prohibition of gender discrimination. • In 1977, a court concluded that a claim of sexual harassment was appropriate by a male or female employee against either a male or female supervisor, when the situation would not have arisen were it not for the sex of the employee.

27. The previous situations were distinguished from cases involving a bisexual superior who conditions employment opportunities of a subordinate of either gender upon participation in a sexual affair. Those cases were not considered gender discrimination because the situation would apply to male & female employees alike. • Although cases involving same-sex advances have been recognized because the victim is singled out because of his or her sex, courts have continue to reject discrimination or harassment cases based upon sexual orientation as opposed to gender.

28. How are cases involving harassment or discrimination based on sexual preference treated differently from cases involving same-sex advances? • When a gay man took a case to court in which he was physically harassed by his male coworkers, the court ruled that the harassment was because he was gay & not because he was a man, & discrimination against homosexuals is not prohibited by Title VII of the Civil Rights Act of 1964. • In another case, a man claimed hostile environment sexual harassment, because of activities including name-calling, graffiti, turning off the bathroom lights when the plaintiff entered, & finally physically assault. The court rejected the claim because the coworkers deprived the man of a proper work environment because of homosexuality not because of gender.

29. Discrimination based on Gender Stereotyping & Nonconformity • In 1989, Price Waterhouse v. Hopkins, the Supreme Court decided that illegal discrimination on the basis of sex had occurred when a woman was denied partnership because she was not feminine enough, that is, she did not conform to stereotypes of how women should act. • After Price Waterhouse v. Hopkins, some cases by gays and lesbians have been argued on the grounds of gender stereotyping and nonconformity.

30. However, court decisions have not been consistent regarding gender nonconformity cases. • Some accepted and applied the theory to side with the plaintiff; • some accepted the theory in principle but held that the facts of the case did not support the theory; • some accepted the theory but declined to apply it to the facts at hand; and • some rejected the theory of gender stereotyping. • Consistency is only likely to be achieved if Congress or the courts clearly provide Title VII protection to sexual orientation discrimination victims. • Bible, J.D., (2006). Disorder in the courts: Proving same-sex sex discrimination in Title VII cases via “gender stereotyping.” Employee Relations Law Journal, 31, 42-71.

31. Members of Congress have attempted to amend Title VII to include discrimination based on sexual orientation, but Congress has rejected the proposed amendments.

32. In a growing number of states, the duty of employers goes beyond workplace harassment & also encompasses discrimination based on sexual orientation in hiring, promotion, & other terms & conditions of employment.

33. In states that prohibit discrimination on the basis of sexual orientation, what do the laws cover? • In most states protecting sexual orientation, sexual orientation includes heterosexuality, homosexuality, and bisexuality. • In some states, it is only necessary that the alleged harasser believes that the victim is heterosexual, homosexual, or bisexual; the actual orientation of the victim is of no consequence.

34. Most states that offer protection on the basis of sexual orientation have created a statutory exemption for religious & charitable organizations. • These groups are free to discriminate in hiring on the basis of an individual’s sexual orientation where such action furthers the beliefs or principles of the organization.

35. No state requires an employer to recruit or implement affirmative action plans for the benefit of homosexuals, bisexuals, or heterosexuals, for hiring purposes, even if there exists a great numerical imbalance in the employer’s work force as compared to that which exists in surrounding areas.