In response to changes in New York State law regarding sexual harassment prevention in the workplace, some employers and employees alike have raised questions about the categorization of sexual harassment as a form of discrimination. Isn’t discrimination limiting someone’s opportunities or treating people differently or badly based on who they are and what groups they are a part of? These questions are based on a limited understanding of the definition of sexual harassment.
If asked to give an example of sexual harassment, many people would come up with a well known example: a young subordinate is targeted by a supervisor who makes unwanted sexual advances in the workplace. This is absolutely sexual harassment. Why is it discrimination? Because it is treating someone differently (and in an unwanted way) based on sex. Essentially, a victim of sexual harassment is being discriminated in the workplace because they are being denied a safe work environment because of their sex.
Obviously, good employers want to create a safe environment where there is no tolerance for sexual harassment. However, viewing sexual harassment as a form of discrimination can help everyone within an organization understand the scope of the problem and the different federal and state policies it violates. It can also help people see that this kind of harassment is not limited to unwanted sexual advances, but a much broader problem.
According to federal law, sexual harassment in the workplace is sex-based discrimination.
The US Equal Employment Opportunity Commission (EEOC) explains that sexual harassment violates Title VII of the Civil Rights Act of 1964, which applies to any workplace with 15 or more employees. This includes federal governments, state governments, employment agencies, and labor organizations.
The EEOC defines workplace sexual harassment as follows:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.
They also clarify the following:
- The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
- The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
- The harasser's conduct must be unwelcome.
The reason why sexual harassment is discrimination is because it is treatment based on the category of sex.
However, it’s not limited to only sex. Many states and local governments also interpret “on the basis of sex” to include sexual orientation and gender identity. That means that any negative or unwanted attention based on sex, gender, or orientation creates a discriminatory environment in the workplace.
Understanding sexual harassment as discrimination can help you understand the seriousness of these offenses. In the past, unethical employers created many unsafe work environments by tolerating sexual harassment of employees, pushing aside complaints, or punishing sexual harassment victims for coming forward. This is not only rejected by the culture at large, but it is also against federal and state laws.
What can employers do?
In New York State, state law sets specific mandates for responding to this problem. Employers are required to protect their workers from sexual harassment through several different mechanisms. Three recent changes to New York State law require employers to:
- establish a formal sexual harassment prevention policy and share it with all employees.
- ensure the policy includes and shares a complaint form with employees that can be used to file formal sexual harassment complaints.
- provide mandatory sexual harassment prevention training to all employees on an annual basis.
For companies that need to update their sexual harassment prevention policies, the state now provides model policies, documents, and training modules. They also provide information to workers and employers alike so that everyone in the workplace can be more informed on how they as individuals can prevent and respond to sexual harassment in the unfortunate event that it occurs.
Companies like Complete Payroll can also coordinate the implementation of new policies and training so that you can be confident that you are in compliance with these new laws. Ensuring that you are up to date will prevent your company from being susceptible to lawsuits or penalties. Most importantly, providing information, training, and a reporting mechanism to your workers creates a safer and more secure environment for everyone in the company.