(Adapted from the Bureau of National Affairs, Inc.)
Q. Doesn’t sexual harassment have to involve sexual advances or other conduct sexual in nature?
A. No. The 1980 EEOC Guidelines on Sexual Harassment do suggest that conduct constituting sexual harassment must be “conduct of a sexual nature,” but it is just as unlawful to harass people with gender-based conduct of a nonsexual nature. Consider, for example, a man and a woman each holding the same kind of job in an organization. If their supervisor gives demeaning and inappropriate assignments (such as serving coffee, picking up dry cleaning, emptying a wastebasket) to the woman, but not to the man, because of the woman’s gender, that conduct, if sufficiently severe or pervasive, could amount to harassment on the basis of sex even though the assignments are not sexual in nature. The key question here is not whether the unwelcome conduct was sexual in nature but whether it was based on the victim’s gender.
Q. Isn’t sexual harassment limited to situations where supervisors make sexual demands on subordinates?
A. No. Sexual power plays by supervisors constitute the most easily understood form of sexual harassment. But harassment also occurs when supervisors, co-workers, or even nonemployees create a hostile environment through unwelcome sexual advances or demeaning gender-based conduct. There have even been cases where a subordinate has sexually harassed a supervisor.
Regarding harassment by non employees (clients, customers, vendors, consultants, independent contractors, and the like), the College’s ability to police unwelcome conduct may be more limited than with employees. For example, it is easier to investigate and discipline an employee than a customer. The College still, however, must take reasonable steps to address the situation once the matter comes to its attention.
Q. Can harassment occur without physical touching or a threat to the employee's job?
A. Yes. The nature of harassment may be purely verbal or visual (pornographic photos or graffiti on workplace walls, for example), and it does not have to involve any job loss. Any conduct based on a protected status that creates a work environment that a reasonable person would consider hostile may amount to harassment.
Q. Isn’t there a right to free speech?
A. The First Amendment protects some forms of expression, even in the workplace, but the verbal threats and name calling often involved in harassment are not protected as free speech. For example, the First Amendment would not protect, as free speech, a supervisor’s threat to a subordinate that she will lose her job if she does not sleep with her boss. Nor will the First Amendment protect verbal conduct that offends and intimidates other employees to the point that their work is affected, creating a hostile environment.
Q. Is sexual harassment of men, either by women or by other men, unlawful?
A. Yes. Although sexual harassment generally is perpetrated by men against women, any form of unwelcome sexual advance against employees of either gender may be the basis for a case of unlawful sexual harassment.
Q. What about harassment of employees by clients or customers or vendors?
A. The College has a duty to take reasonable steps to protect employees from discriminatory harassment inflicted by third parties, such as vendors. The College does not have the same power to influence vendors that the College has to influence employees, but must take whatever reasonable steps it can to prevent and correct harassment inflicted on employees by third parties.
Q. I’m so mad at the person who harassed me and at my employer that I just want to sue. Should I even bother to complain under the College’s antiharassment policy?
A. Yes. You owe it to the College and to your co-workers to report through the institution’s channels to give the College a chance to solve the problem promptly, before others are affected.