Harassment - Employment Law
harassment

Harassment on the Job

Harassment refers to a wide spectrum of offensive behavior. When the term is used in a legal sense it refers to behaviours that are found threatening or disturbing, and beyond those that are sanctioned by society. In societies which support free speech, only the more repetitive, persistent and untruthful types of speech qualify legally as harassment. sexual harassment refers to persistent and unwanted sexual advances, typically in the workplace, where the consequences of refusing are potentially very disadvantaging to the victim.

Both because the term is used in common english, and because where the term is defined by law, the law varies by jurisdiction, it is difficult to provide any exact definition that is accepted everywhere. In some cultures, for instance, simply stating a political opinion can be seen as unwarranted and a deliberate attempt to intimidate – in a totalitarian society any such statement could be interpreted as an attempt to involve someone in rebel activity or implicate them in same, with the implication that if they refuse, they are putting their own life in danger. More usually, some label such as “anti-social” or related to treason is used to label such behaviour – it being treated as an offense against the state not the person. This resembles the use of psychiatry to imprison dissidents which is common in many countries. Another example is that under some versions of Islamic Law merely insulting Islam is considered to be a harassment of all believers, and in Japan insulting any faith is usually considered taboo, and has legal sanctions. There are also extreme and self-serving definitions employed by anti-defamation groups, and also more mainstream groups like NOW. Because of these variations, there is no way even within one society to provide a truly neutral definition of harassment.

 

Sexual Harassment

Sexual harassment is harassment of a sexual nature, typically in the workplace or other setting where raising objections or refusing may have negative consequences. In American employment law, it is any unwelcome sexual advance or conduct on the job, having the effect of making the workplace intimidating, hostile or offensive. Sexual harassment is considered a form of illegal discrimination.

 

The definition of the phrase Sexual Harassment can be broad and controversial, depending on each individual’s opinion of what harassment is. While typical sexual harassment behaviour usually includes unwanted touching of a co-worker’s private parts, leud comments, talk about gender superiority, sexual jokes, etc., etc., some companies have reported that they have had to fire employees (after a co-worker has complained of sexual harassment) for such actions as telling the complaining co-worker how good he or she looks for that co-worker’s date with another person, or for simply handing what seemed, to the fired employee, to be just a harmless complement.

 

Instances

Sexual harassment can occur in a number of ways, such as:

 

  • The harasser can be the victim’s supervisor, a client, a co-worker, a teacher or professor, a schoolmate, or a stranger.
  • The victim does not have to be the person directly harassed but can be anyone who finds the behavior offensive and is affected by it.
  • While adverse effects on the victim are common, this does not have to be the case for the behavior to be unlawful.
  • The victim can be male or female. The harasser does not have to be of the opposite sex.
  • The harasser’s behavior must be unwelcome.
  • The harasser may be completely unaware that their behavior is offensive or constitutes sexual harassment, or they may be completely unaware that their actions could be unlawful.

 

Definitions

Two specific legal definitions of sexual harassment have been defined:

  1. quid pro quo (Latin: something for something)
  2. hostile work environment

 

The concept of sexual harassment has both colloquial and legal meanings. Many more people have experienced sexual harassment than have a solid legal case against the accused. For many businesses, preventing sexual harassment, and defending its managerial employees from sexual harassment charges, have become key goals of legal decision-making.

 

Prima Facie Case for Sexual Harassment

To establish a prima facie case for sexual harassment, you must show that there were unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:

  1. Submission to such conduct was made either explicitly or implicitly a term or condition of an individual’s employment
  2. Submission to or rejection of such conduct by an individual was used as the basis for employment decisions affecting such individual
  3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment

 

Prima Facie for Sexual Harassment, Hostile Environment

To establish a prima facie case for hostile work environment sexual harassment, the alleged victim must prove:

  1. He or she suffered intentional discrimination because of his/her sex.
  2. The discrimination was pervasive and regular.
  3. The discrimination detrimentally affected him or her.
  4. The discrimination would detrimentally affect a reasonable person of the same sex.
  5. Management knew about the harassment, or should have known, and did nothing to stop it.

 

Prima Facie for Retaliation

To establish a prima facie case of retaliation, a person must show by a preponderance of evidence that

  1. The person engaged in a protected activity known to the employer.
  2. The employer thereafter subjected the complaining party to an adverse decision.
  3. There was a causal link between the protected activity and adverse employment decision.

 

Protected activities usually encompass making discrimination and harassment activities known to management, participating in Managing Diversity programs, assisting another employee with a discrimination complaint and other similar activities.

 

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