Legal Issue Analysis Sexual Harassment

There was a time when women were not protected against sexual advances or any unwelcome and inappropriate sexually based behavior by their supervisors. There was the time when they were forced to endure statements and behaviors from their male superiors that rendered the workplace atmosphere intimidating and hostile. There was no mechanism in the workplace that protected them against these acts of discrimination and harassment.

They could not seek justice from federal courts because during this time sexual harassment was still considered as a private matter which is not entitled to protection under existing laws. Moreover, the prevailing opinion was that if a supervisor sought sexual favors from his subordinate he does so because of sexual attraction not because of any intent to discriminate based upon gender. Some courts reasoned that sexual advances made by supervisors were beyond the scope of employment and therefore not employment-related.

As a result, women employees were often the victims of sexual advances and indecent proposals from their supervisors. They were however discouraged to seek justice for the harassment they experienced in their own workplace. The prospect of losing their job was just too burdensome for their professional life and their family. The majority of women just kept their silence on this issue.

Nowadays, however, sexual harassment is no longer a tolerated and acceptable act in the workplace. There are existing laws against it. Courts do not only impose liability against the supervisor concerned but even against the employer.

Steve Carter discussed the issue of sexual harassment in his article entitled “Preventing Sexual Harassment in the Workplace.” He said that sexual harassment issues present difficulties for the organization. Firstly, it exposes an organization to vicarious liability for the actions of its employees and others who frequent the workplace. Various liability is a legal concept wherein liability for the acts of an employee is imputed to the employer in view of the responsibility imposed upon the employer to protect every employee against harassment and discrimination. According to Carter, an organization is held directly liable for actions that it deliberately and knowingly takes regarding its employee or group of employees.

Moreover, sexual harassment complaints in the workplace are extremely difficult to resolve considering that they place both the accuser and the accused in an awkward position in the workplace. Many witnesses who can prove whether sexual harassment did take place may also be reluctant to participate to avoid intrigues and politics in the workplace. The committee tasked to investigate the complaint who knows both the parties to the complaint may also purposely refuse to decide on the controversy.

Further, sexual harassment complaints not only expose the organization to direct liability for damages but may also lead to significant management concerns in the workplace. It creates tension not only between the parties involved but also their friends which may disrupt the normal processes in the organization and affect employee productivity.

Taking into account the problems of sexual harassment, Carter proposed three steps to prevent sexual harassment in the workplace. These three steps can be summarized as follows:

1. Develop a written sexual harassment policy and procedure;
2. Distribute the sexual harassment policy;
3. Educate the workforce and train the supervisors.

I believe that the proposed suggestion of Carter does not take into account the reason behind cases of sexual harassment. While it may be effective in preventing the filing of sexual harassment complaints in the workplace it does not foster a mutually inclusive work environment. It does not actually promote diversity in the workplace. Research has shown that a majority of the sexual harassment cases is not necessarily intentional. Most of these acts are committed not for the purpose of committing discrimination against female employees. In the case of Baldwin v. Blue Cross/Blue Shield of Alabama, the court was right in saying that the behavior and the use of profanity were not severe and pervasive enough to affect conditions of employment. In effect, the problems of harassment in the workplace may actually be a reflection of the lack of understanding of diversity. The employees may not be sensitive to the fact that the workplace is as diverse as it can be.

To prevent harassment in the workplace the employees must learn to understand and accept each other’s differences. It means an understanding and acceptance that the workplace is composed of individuals who are unique and different and that every individual has different values and aspirations. Employees must learn to be sensitive to the impact of their behavior and use of language to the opposite sex. For its part, the company must also do its share in becoming sensitive to the employee differences in the workplace. In its communications, it must make sure that sexually-appropriate language is used. It must also avoid engaging in actions that may give the impression that they are promoting inequality in the workplace. Thus, male and female employees must be given equal treatment insofar as the salaries and terms and conditions of employment. Moreover, promotion must also be based on skills, knowledge, experience and any other criteria provided that it is not about sex.

In conclusion, the solution to the problem of sexual harassment is not the imposition of serious sanctions such as suspension or even termination of the erring employees or training individuals how to avoid being sued for sexual harassment, rather the company must educate the employees to become sensitive to gender differences in the workplace.