Department on the Status of Women

Create a Workplace Free of Sexual Harassment
Employee & Employer Handbook on Sexual Harassment
San Francisco Commission on the Status of Women
Revised Edition 1993

Table of Contents

What is Sexual Harassment?
Sexual Harassment
Definition

Employee Section:
Are You Being Sexually Harassed?
Your Feelings Are Important
Steps To Take Against Sexual Harassment

Employer Section:
How To Handle A Complaint
Protect Your Company Against Charges
A Sample Sexual Harassment Policy

Resource Section:
Sexual Harassment Cases
Laws and Regulations
Bibliography
Sexual Harassment Resources
Acknowledgements

Sexual Harassment

Sexual harassment is an exercise of power. Sexual harassment is used to diminish a woman's(1) worth, to discount her work capabilities, and to view her as a sex object.
Sexual harassment is unwanted sexual attention experienced at work. Sexual harassment can range from verbal comments, leering, pinching, and patting, to pressure or demands to engage in sexual activity. It may take many different forms, from pinup pictures to violent sexual assault.
The sexual harasser could be an employer, supervisor, subordinate, coworker, client, customer, or vendor. The harasser could be male or female, and of the same or opposite sex.
Unwanted sexual demands will cause the harassed employee to suffer anxiety. The harassment may also undermine the employee's work and lead to poor work assignments, sarcasm, rejection, isolation, unsatisfactory job evaluations, demotions, transfers, denial of raises, benefits, or promotions, dismissal and/ or a poor job reference.
Ignoring sexual harassment is not an advisable strategy. The harassment may escalate.

1. Use of the feminine pronoun in this pamphlet shall also include the masculine; the authors acknowledge that harassers and those harassed are male as well as female.

Definition Of Sexual Harassment On September 23, 1980, the Federal Equal Employment Opportunity Commission adopted the final guidelines on sexual harassment. Harassment on the basis of sex is a violation of Sec. 703 of Title Vll of the Civil Rights Act of 1964 (_ 1604.11). Title Vll states,

"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: (1) submission to such conduct is 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 is used as the basis for employment decisions affecting such individual; or (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..."

"...An employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as "employer") is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence..."

"...With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action..."

"...An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees in the workplace, where the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action..."

There are two forms of sexual harassment recognized by the courts: quid pro quo and hostile environment. Quid pro quo harassment occurs when submission to sexual conduct is made a condition of employment benefits. Hostile work environment sexual harassment occurs when the sexually harassing conduct is so severe or pervasive as to create a hostile, intimidating, offensive work environment.

Are You Being Sexually Harassed In The Workplace?

Have you been subjected to unwanted sexual comments, jokes, innuendoes or gestures?
Are you pinched, patted, or touched in a sexually offensive manner without your consent?
Are you offered promises of a promotion if you perform a sexual favor?
Are you considered humorless because you don't laugh at sexual jokes?
Do you receive explicit requests to disrobe?
Are you required to wear sexually revealing uniforms in order to keep your job?
Are you called "baby", "sexy", "honey", etc., and feel uncomfortable?
Do you receive unwelcome, offensive telephone calls at home or at work?
Are you exposed to sexually suggestive pictures or pinups at work?
Have you personally witnessed the sexual harassment of others in your immediate work environment?
If you have complained about being sexually harassed, have you been involuntarily transferred to another location or otherwise treated in a fashion you consider retaliatory?
Are you experiencing any notable changes in your work environment due to your refusal to comply with the harasser's sexual demands?
Has your refusal to comply with the sexual harasser's demands resulted in racist remarks or discrimination based on race, ethnicity or sexual orientation?
Are you being sexually taunted because of your actual or perceived sexual orientation?

If you answered "yes" to any of the above questions, you may be a victim of sexual harassment. You can take action, and there are people and organizations available to assist you. SEXUAL HARASSMENT: YOUR FEELINGS ARE IMPORTANT

People who have been sexually harassed experience many different feelings including anger, humiliation, anxiety, guilt and/or depression. Your feelings are important.
Trust your feelings. If you are being sexually harassed, the first step is to take yourself seriously. Remember, you do have options.
Some forms of sexual harassment may encompass stereotypes about lesbians or people of color. Keep in mind that harassment based on such stereotypes may still be a form of sexual harassment.
It's okay to feel angry. Use your anger constructively to develop a strategy to help remedy your situation.
Take one step at a time. It's easy to feel overwhelmed.
If you are frightened by your harasser's possible actions, take those feelings seriously. Do not ignore these feelings. If you feel threatened, you need to take action.
If you are feeling emotionally distressed, it may help to talk about your feelings. Seek emotional support and validation, as well as feedback from people you trust. Talking to a friend or a counselor might help you figure out what options you have and what you need to do for yourself.
It is common to experience physical symptoms caused by harassment such as headaches, loss of appetite, gastrointestinal disorders, weight loss or gain, inability to sleep, and crying spells. Take care of yourself and seek medical attention if necessary.
Find out what resources exist in your area. Call your local Women's Commission, your union or other advocacy organizations in your area. (See Resource List)

Steps To Take Against Sexual Harassment

At the First Sign of Sexual Harassment You Should:
Document incidents with dates, places, times, names and quotes. Indicate whether there were any witnesses.
Describe all physical or emotional stress which you experienced as a result of the harassment.
Document your response, if any, to the harassment.

Confide in Trustworthy Coworkers:
Talk with coworkers. They may be supportive and may have experienced sexual harassment as well perhaps from the same harasser.
Ask witnesses to write statements on your behalf. Witnesses are extremely important when filing a complaint.

Talk to the Harasser:
If you can, clearly and firmly tell the harasser you are not interested in any sexual offers or listening to any more sexual remarks. Let him know that you will take further action if the behavior does not stop.
Follow up with a memo summarizing the conversation. Hand deliver or mail the memo "registered receipt" to the harasser with a witness present, if possible. Keep a copy for your files.
If you cannot talk to the harasser, write him a letter and hand it to him in the presence of a witness.

Use the Grievance Procedure:
Find out whether your company has a Sexual Harassment Counselor or an Affirmative Action Officer. Give the appropriate manager your documentation. If you are not satisfied with the response, take your complaint to top management.
Indicate all attempts you have made to stop the harassment. Document all the incidents, including memos written to the harasser and coworkers' statements on your behalf. Write down the names of all supervisors you have talked to and what their actions were ALWAYS include NAMES, DATES and TIMES.

Talk To Your Union
If you are a member of a union, ask your union representative for support. The union may be able to act on your behalf.

File A Complaint :
It is advisable to first inform your employer of the sexual harassment before filing a formal complaint outside of your company so that they have an opportunity to remedy the situation. (2)
If your employer does not take satisfactory action to stop the harassment, file a complaint with the appropriate government agency. (See Resources Section)
Be Sure To File Your Complaint Within The Time Limits! You can withdraw your complaint at any time if the matter has been resolved informally, but you will be unable to bring a formal complaint if you miss the deadlines for filing. Filing a complaint early will allow you to keep your options open, including the right to sue. State guidelines for filing may vary; check with your local jurisdiction.

To file a complaint with the California Department of Fair Employment and Housing, you must file within one year of the latest incident.

To file a complaint with the United States Equal Employment Opportunity Commission in California, you must file within 300 days from the latest incident.

You may also file a civil lawsuit in the state or federal courts. However, in order to file a lawsuit, you must first get a "right to sue letter" from the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission. You should not request a "right to sue letter" unless you have already retained a lawyer and are ready to file in court because the time deadline for filing a lawsuit begins on the date you receive the "right to sue letter." Also, once a "right to sue letter" is issued, the administrative agency will no longer do any investigation in your case. (See Resource Section for legal assistance.

2. Sexual harassment complainants have lost in court because their employer was not given the opportunity to remedy the situation. Such prior notification is not, however, always required.

How To Handle A Complaint

At the first sign of sexual harassment:

Take all incidents seriously. All complaints must be addressed. The complainant's charges should be received without making immediate judgements.
Document the complaint with dates, times, places, names and quotes (even if you are not the immediate supervisor).
After hearing the complainant's story, repeat relevant facts so that the complainant can correct any mistakes and can be assured that the incident has been understood properly. Ask the complainant if there is anything that you forgot to ask or they wish to include.
Discuss alternatives with the complainant. Tell the complainant how and when you intend to follow up with the complaint and thank them for coming forward.
If appropriate, explore the possibility of moving the alleged harasser out of the complainant's work site. The complainant however, should not be involuntarily transferred.
Report the information to the appropriate manager, sexual harassment counselor or EEO officer.

Investigate the complaint:

The appropriate manager or sexual harassment committee member must meet with the alleged harasser and any identified or possible witnesses.
Document the meeting. Make it clear that harassment and retaliation of any kind will not be tolerated and can expose the employer and the harasser to legal liability.

Final action:

If the appropriate manager determines sexual harassment has occurred, the company must take immediate, appropriate corrective action in the following forms: an order to STOP; a warning that violations will be punished; a verbal or written reprimand; suspension with or without pay; and/or discharge.
At this time, it is advisable to reissue the company's sexual harassment policy and conduct sexual harassment training for all employees.

Be aware:

Employees have the right to file a charge of discrimination with local, state and/or federal government agencies, or to file a civil lawsuit.
It is to the employer's advantage to handle the complaint internally before it further escalates into a formal proceeding. Sensitivity and timeliness are essential in handling complaints effectively.
It is important for the employer to follow up after the complaint has been handled to ensure that the harassment has stopped and there are no retaliatory actions taken against the complainant.
Reporting sexual harassment is often a very difficult experience. Be aware that recipients may not be able to recognize the incident as one of sexual harassment until after a considerable amount of time has passed.

Protect Your Company Against Sexual Harassment Charges

Know the laws: Title Vll of the Civil Rights Act of 1964; the Fair Employment and Housing Act; and the San Francisco Ordinance on Sexual Harassment.
Know what constitutes sexual harassment.
Establish a sexual harassment policy and training for your employees.
Let your employees know that you will not tolerate sexual harassment in the workplace. Demonstrate your commitment by taking immediate action when appropriate.
Post the sexual harassment policy in a prominent place and distribute the policy to your employees.
Consider your employees' suggestions when developing the policy.
Publicize and provide ongoing training on sexual harassment.
Provide open channels for communication to allow individuals to report complaints of sexual harassment on a confidential basis.
Investigate thoroughly and resolve promptly all complaints of sexual harassment, even if they were not brought pursuant to established procedures.

California law imposes an affirmative duty on employers to "take all reasonable steps to prevent harassment from occurring." (Cal. Govt. Code _ 12940 (h) ). The best way to minimize the incidence of sexual harassment is to have a program designed to discourage harassment. Employer benefits will include a more productive workplace, avoidance or minimization of employer liability and co$t to business and protection for future sexual harassment victims.

Be aware! Some forms of sexual harassment may encompass sexual stereotypes about sexual orientation and/or people of color. Any comprehensive training must incorporate education on this aspect of sexual harassment.

Be aware! You may be responsible for the actions of all your supervi sors, employees, clients, customers and vendors who may engage in sexual harassment.

Remember: Sexual Harassment Is Illegal! As An Employer, You Are Responsible!

A Sample Sexual Harassment Policy(3) Name of Company recognizes and reaffirms its policy of providing equal employment opportunity to all qualified persons, and reaffirms its commitment that there shall be no discrimination against qualified applicants or employees on the basis of race, sex, color, national origin, religion, age, sexual orientation, disability, or veteran's status. It is also the policy of Name of Company that sexual harassment is unacceptable and will not be tolerated. Any management employee that believes that sexual harassment may be occurring is required to report the conduct to the appropriate human resources officer or other management employee. Sexual harassment includes, but is not limited to:

1. Making unsolicited and unwelcome written, verbal, physical, and/ or visual contact with sexual overtones. (Written examples: suggestive or obscene letters, notes, invitations. Verbal examples: derogatory comments, slurs, jokes, epithets, including conduct or comments consistently directed at only one gender even if the content is not sexual. Physical examples: assault, touching, impeding or blocking movement. Visual examples: leering, gestures, display of sexually suggestive objects or pictures, cartoons, posters and magazines.)

2. Continuing to express sexual interest after being informed that the interest is unwelcome. (Reciprocal attraction is not considered sexual harassment.)

3. Making reprisals, threats of reprisal, or implied threats of reprisal following a negative response. For example, either implying or actually witholding support for an appointment, promotion, or change of assignment, or suggesting that a poor performance report will be given.

4. Engaging in implicit or explicit coercive sexual behavior which is used to control, influence, or affect the career, salary, and/or work environment of another employee.

5. Offering favors or employment benefits, such as promotions, favorable performance evaluations. preferential duty or shift assignments, recommendations, reclassifications, etc., in exchange for sexual favors.

3.Sections of this sample policy were taken from " Sexual Harassment: Managing Ambiguity and Conflict", by Barry M. Shapiro and The Bar Association of San Francisco's " Sexual Harassment Policy Guidelines.

This policy applies to all phases of the employment relationship, including recruiting, testing, hiring, upgrading, promotion/demotion, transfer, layoff, termination, rates of pay, benefits and selection for training.

Moreover, it is the stated policy of Name of Company to prevent and prohibit misconduct on the job, including sexual harassment or any other type of employee harassment by coworkers, subordinate employees, nonemployees, or supervisors. Any employee found to have acted in violation of the foregoing policies shall be subject to appropriate disciplinary action, including warnings, reprimands, suspension and/ or discharge.

All complaints of sexual harassment shall be directed to a member of the Sexual Harassment Committee and shall be handled confidentially to the maximum extent possible. The Committee has full responsibility to receive, investigate and resolve complaints involving violations of the policies stated herein, and to recommend to management the imposition of appropriate sanctions against violators. The individuals listed below are hereby designated as Name of Company's Sexual Harassment Committee.(4)

Member A, Member B, Member C

An individual also may choose to report the complaint to his/her su pervisor or any member of management. (Note that a supervisor who has not had special training in dealing with sexual harassment complaints is strongly encouraged to consult a trained member of the Sexual Harassment Committee before taking action.) If the supervisor successfully resolves the complaint in an informal manner to the ccomplaints' satisfaction, the supervisor must file a confidential report to Management or Designated Individual about the complaint and reso lution so that the employer will be aware of any pattern of harassment by a particular individual and of all complaints of sexual harassment or an employerwide basis. If the supervisor does not successfully resolve the complaint in an informal manner, a written report must be made to Personnel Director within .. one work day.

In determining whether sexual harassment has occurred, the standard to be applied is that of the victim, so long as this perspective is reasonable for a person of the same gender under similar circumstances. It is no defense to a claim of sexual harassment that the alleged harasser did not intend to harass.

4.The employer should designate a group of individuals comprised of both genders, a variety of age groups, job positions, ethnic backgrounds, and levels of seniority.

Retaliation Against Any Person Who Files A Formal Charge Or Complaint Of Harassment Is Prohibited And Is Grounds For Discipline Up To And Including Termination.

Name of company will also establish yearly training sessions on handling sexual harassment complaints for all supervisors and managers, and conduct separate training sessions for subordinate employees concerning their rights under Title Vll of the Civil Rights Act of 1964. This policy statement shall be distributed to all management and employees and will be posted in areas where all employees will have the opportunity to freely review it.

In accordance with the California Department of Fair Employment and Housing requirements, a copy of an informational pamphlet and " Discrimination/ Harassment Poster" will he posted at all work sites.

Sexual Harassment Cases

Federal Cases

Meritor Savings Bank v. Vinson,477 U.S. 67,106 S. Ct.2399 (1986). The United States Supreme Court states that sexual harassment is actionable under Title Vll and that an employer may be liable for sexual harassment even when the victim suffers no tangible or economic loss. An employer may be liable where sexual harassment is so severe or pervasive that it creates a hostile or abusive work environment.

Intlekofer v. Turnage, 973 F.2nd 773 {9th Cir. 1992) The Ninth Circuit held that employers are required under Title Vll to take steps, including disciplinary action against a harasser, to ensure a prompt and effective end to workplace sexual harassment. If the action taken by the employer to correct the harassing behavior is untimely and/or ineffec tive, the employer may be held liable.

Ellison v. Brady,. 924 F.2d 872 (9th Cir. 1991). In this case, a female employee received strange love letters from a male coworker who repeatedly asked her to go to lunch or for a drink. The Ninth Circuit held that the severity and pervasiveness of sexual harassment should be evaluated from the point of view of a "reasonable woman." Where a "reasonable woman" would consider the conduct sufficiently severe to create an abusive working environment, a violation of Title Vll has occurred.

Priest v. Rotary, 98 F.R.D. 755 (1983). The court held that an employer accused of sexual harassment was barred from inquiring into the complainant's sexual history, including the name of each person with whom she had sexual relations in the past ten years.

Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979). In this case, a male supervisory employee fired a female subordinate employee after she refused his demand for sexual favors. The Ninth Circuit held that the employer could be liable for such actions by the supervisor even though the employer had a Policy against such behavior. .

California Cases

Vinson v. Superior Court,43 Cal.3d 833,740 P.2d 404,239 Cal.Rptr. 292 (1987). The court stated that a mental examination of the complainant is not justified where the complainant is not seeking mental or emotional damages but simply compensation for enduring an oppressive work environment. In any case, the employer may not inquire into the comnlainant's past sexual history and practices.

Fisher v. San Pedro Hospital, 214 Cal.App.3d 590, 262 Cal. Rptr. 842 {1 1989. Similar to federal case law,California prohibits sexual harassment resulting from an offensive or hostile work environment, even if the complainant suffers no tangible job detriment.

Rojo v. Kliger. 52 Cal.3d 65 (1990). The California Supreme Court recognizes that sexual harassment, whether public or private, raises a claim under the public policy of the State of California. Complainants need not resort to the Department of Fair Employment and Housing.

Laws and Regulations

Title Vll of the Civil Rights Act of 1964, as amended, 42 USC _2000e, et seq.
EEOC Regulations, 29 Code of Federal Regulations, _1604.22 (Sexual Harassment).
California Government Code, _12940 Fair Employment and Housing Commission Regulations; California Administrative Code, Title 2, _7287.6 (b).
State Personnel BoardSexual Harassment Policy (Policy Memo).
California Government Code, State Civil Service Provisions __19572, 19682, 19702.
California Education Code, _212.5 Sexual Harassment.
San Francisco City and County Administrative Code, _16.925, Ordinance No. 21386.
On June 19, 1986, the U.S. Supreme Court held that sexual harassment is a form of discrimination as defined in the Civil Rights Act of 1964 and the EEOC Guidelines shown above.
Under Title Vll of the 1991 Civil Rights Act, compensatory and punitive damages, as well as jury trials, are now available in cases of intentional discrimination.
California State Bill AB311 allows the California Department of Fair Employment and Housing to award compensatory damages and administrative fines up to $50,000.00.
- California Government Code _12950, passed in 1992 and effective January 1, 1993, requires that all California employers provide information to their employees on the nature and illegality of sexual harassment and the legal remedies against harassment which are available. A poster must be placed in a prominent location and an information sheet on sexual harassment must be distributed. They can be obtained by the Department of Fair Employment and Housing.
California Constitution, Article I, _8 provides for protection in employment from sex discrimination, which includes sexual harassment.
California Civil Code _51 provides that each person has a right to be free from violence and threats of violence because of one's sex.

Bibliography

AndersonDavis & Associates, "Sexual Harassment: Facts vs. Myths," 1986.

Backhouse, Constance, and Cohen, Leah, "Sexual Harassment on the Job: How to Avoid the Working Woman's Nightmare," PrenticeHall, Inc., N.J., 1980.

The Bar Association of San Francisco, "Sexual Harassment Policy Guidelines," 1992.

Brinkman & Associates, "Changing Boundaries: Recognizing, Preventing and Resolving Sexual Harassment," 1300 12th Avenue, San Francisco, CA 94122, 1993.

California Department of Fair Employment and Housing, "Case Analysis Manual," Volumes 1 and 2, November, 1982.

Coalition of Labor Union Women, "9 to 5 Guide for Combating Sexual Harassment."

Colagost, Camille, "Stopping Sexual Harassment." Labor Notes.

EEOC Policy Guidance, N915.035, October 25, 1988.

Gordon, Linda, "The Politics of Sexual Harassment," Radical America, Volume 15, No. 4, pp. 714, JulyAugust 1981.

MacKinnon, Catherine A., "Sexual Harassment of Working Women," Yale University Press, New Haven and London, 1979.

Petrocelli, William and Repa, Barbara Kate, "Sexual Harassment on the Job," Nolo Press, 1992.

Renick, James C., "Sexual Harassment at Work: Why it Happens, What to Do About It," Personnel Journal, Volume 59, No. 8, August 1980.

Roberts, Jane and Chapman, Gordon R., "Sexual Harassment of Women in Employment Art. lll: Promising Solutions," Fall, 1984.

Schiller, Carol, "Processing A Complaint," presentation at the Fair Employment and Housing Act Conference, San Francisco, May 27, 1983.

Shapiro, Barry M. & Associates, "Sexual Harassment: Managing Ambiguity and Conflict," 447 Hoffman Ave., San Francisco, CA 94114, 1984.

Simmons, Richard J., "Employment Discrimination and EEO Practice Manual for California Employers," 3rd Edition, Castle Publications Ltd.,

Siniscalco, Gary R., et. al., "The New Title Vll," Employment Law Update. Vol. 921, Winter, 1992.

Sexual Harassment Resources

Government Resources
San Francisco Commission on the Status of Women (City)
25 Van Ness Avenue, Room 130
San Francisco, CA 94102
(415) 252-2570

San Francisco Human Rights Commission (City)
25 Van Ness Avenue, 8th Floor
San Francisco, CA 94102
(415) 252-2500

Department of Fair Employment and Housing (State)
30 Van Ness Avenue
San Francisco, CA 94102
(415) 557- 2005

Equal Employment Opportunity Commission (Federal)
San Francisco District Office
901 Market Street, Suite 500
San Francisco, CA 94103
(415) 744-6500

U.S. Dept. of Education
Office for Civil Rights
50 United Nations Plaza, Room 239
San Francisco, CA 94102
(415) 556-7000

Advocacy Organizations
American Civil Liberties Union
1663 Mission Street, Suite 460
San Francisco, CA 94103
Hotline (415) 621-2488

Bar Association of San Francisco
Lawyer Referral Service
685 Market Street, Suite 700
San Francisco, CA 94105
(415) 764-1616

Chinese for Affirmative Action
17 Walter Lum Place
San Francisco, CA 94108
(415) 274-6750

Coalition for Immigrant Refugee Rights
995 Market Street, #1108
San Francisco, CA 94103
(415) 554-2444

Coalition for Labor Women
15 Union Square
New York City, New York 10003
(212) 242-0700

Disability Rights Education & Defense Fund
22126th Street
Berkeley, CA 94702 (510) 664-2555

Acknowledgements The San Francisco Commission on the Status of Women gratefully acknowledges the outstanding work of the 1985 Sexual Harassment Committee, the original authors of "How to Create a Workplace Free of Sexual Harassment."

In 1993, this brochure was revised and updated with the invaluable assistance of Bethany Berger, Larry Brinkin, Trisha Brinkman, Nancy Davis, Rose Fua, Tracey Grossbach, Lisa Guggenhime, Isabel Huie, Sharon Johnson, Pauline Kim, Judith Klain, Mary Lyall, Leatrice Miyashiro, Sheila Mullen Rosario Navarrette, Veronica Ng, Jackie Ortega, Millie Phillips Margaret Roeckl, Patricia Shiu, Michelle Still and Aleeta Van Runkle.

Special thanks goes to Pacific Bell, who paid for all printing costs to reproduce this handbook and to Bank of America for their generous contribution.