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Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 164. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individuals employment, unreasonably interferes with an individuals work performance or creates an intimidating, hostile or offensive work environment.
Sexual harassment can occur in a variety of circumstances, including but not limited to 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.
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• The harasser can be the victims 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 harassers conduct must be unwelcome.
It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop.
Sexual harassment complaints often heighten feelings of distress and engender adversarial attitudes. Under these conditions any interaction between parties to a grievance may be perceived as retaliatory or motivated by ill will
There are three basic forms of sexual harassment
1. Verbal - Unwelcome suggestive remarks, sexual insults, innuendoes, jokes, and humor about sex or gender-specific traits, sexual propositions, or threats;
. Nonverbal - Unwelcome suggestive or insulting sounds, leering/ogling, whistling, obscene gestures, and obscene graphic materials; and
. Physical - Unwelcome cornering, touching, pinching, brushing the body, and actual or attempted rape or assault.
The Supreme Court made clear that employers are subject to vicarious liability for unlawful harassment by supervisors. The standard of liability set forth in these decisions is premised on two principles
1) An employer is responsible for the acts of its supervisors.
) Employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.
In order to accommodate these principles, the Court held that an employer is always liable for a supervisors harassment if it culminates in a tangible employment action. However, if it does not, the employer may be able to avoid liability or limit damages by establishing an affirmative defense that includes two necessary elements
(a) The employer exercised reasonable care to prevent and correct promptly any harassing behavior, and
(b) The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Harassment remains a pervasive problem in American workplaces. The number of harassment charges filed with the EEOC and state fair employment practices agencies has risen significantly in recent years. For example, the number of sexual harassment charges has increased from 6,88 in fiscal year 11 to 15,618 in fiscal year 18. The number of racial harassment charges rose from 4,10 to ,08 charges in the same time period.
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