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What Is Sexual Harassment?
Glossary
 
Introduction

Sexual harassment is a widespread problem in the healthcare workplace, affecting hospitals, medical practices and other healthcare facilities. Physicians can be both victims and perpetrators. This behavior can cause lasting damage not only to victims' personal lives, but also to the safety, efficiency, and cohesiveness of healthcare organizations.

The #MeToo movement has done a great deal to raise awareness about sexual harassment in the workplace, exposing a long roster of celebrities who engaged in sexual harassment at work. #MeToo cases tend to involve criminal sexual assault. Sexual harassment does not necessarily involve sexual assault and has a much broader application.

The term "sexual harassment" was first coined in the 1970s, but to this day, it's still widely misused and misunderstood. This makes it difficult to reasonably discuss, much less to enforce. Whereas some people apply too narrow a definition, others apply definitions that are too broad, in that they consider any behavior they don't happen to like as sexual harassment.

A Basic Description of Sexual Harassment

The law defines sexual harassment as an unwelcome sexual advance, request for a sexual favor, or verbal or physical conduct of a sexual nature. It must be severe or pervasive enough that it interferes with victims' ability to do their jobs, and it must create a hostile work environment. 

It covers a wide variety of behaviors. Sexual harassment includes sexual assault, unwanted groping, continual requests for dates, and discriminatory demotions. It can even mean sexual put-downs, telling dirty jokes, and displays of pornography, depending on the rules of a particular workplace.

It is defined by its impact on victims. Sexual harassment is defined by its impact on the target and not by the intent of the perpetrator. Put another way, the impact is in the eye of the beholder. For example, a man might tell a sexual joke that he does not consider offensive, but it could still be offensive to a woman hearing it, and thus it may be considered sexual harassment.

It relates to standards of a "reasonable" person. Focusing on impact of behavior, however, is not carte blanche for some employees to label a wide swath of behavior as sexual harassment. Under the law, sexual harassment is limited to behavior that would be offensive to a reasonable person, including a reasonable woman.

It's often not about sexual attraction. Much of sexual harassment is not about sex or lust, but about power and control. For example, a study of "girl watching" at work found that the intended audience of men's sexist gestures and comments was often other men, and not the targeted women. The watchers were demonstrating their power to sexually evaluate women.

It's not just about men harassing women. The traditional stereotype of sexual harassment is a man harassing a woman, but it can also involve men harassing other men and, in some cases, women harassing men.

Many victims continue working. By definition, sexual harassment has to interfere with victims' ability to do their jobs, but that does not mean that they quit their job. In many cases, the sexual harassment victims continue to work, even as they struggle with their fears, and look for ways to avoid harassment, even though those ways may reduce their productivity.

How Workplaces Typically Deal With Sexual Harassment

The way sexual harassment is monitored sets it apart from the way other offenses are usually dealt with. Oversight is limited to the workplace, and the employer is expected to carry out enforcement. If employers fail to act against sexual harassment, victims can file charges against them with government agencies and then, in many cases, can go to the courts. Below are some points that further clarify enforcement.

Sexual harassment is a form of discrimination. Title VII of the Civil Rights Act of 1964 applies to many kinds of discrimination, including sexual harassment and gender discrimination. It's still unresolved whether Title VII can be applied to lesbian, gay, bisexual, transgender, and questioning/queer (LGBTQ) people. The Supreme Court was scheduled to decide a case involving LGBTQ harassment in 2020.

Employers are responsible for enforcement. The employer, not the perpetrator, is subject to a Title VII lawsuit. Charges can be brought against organizations where an employee has been accused of harassing another employee and the employer has failed to act against the harassment. In these lawsuits, employers sometimes have to pay millions of dollars in damages.

Each employer enforces its own policy. Many employers target behavior that would not be considered illegal harassment under Title VII, such as telling an occasional dirty joke or an occasional comment about a colleague's body. Employees who engage in this behavior can be disciplined because they are violating workplace policy.

Victims may file complaints with their employer. Victims have a right to file complaints at their workplace. When victims file, the employer is obligated to swiftly investigate the complaint and, if there is a violation of the harassment policy, discipline the harasser.

Federal and state agencies oversee the law. The Equal Employment Opportunity Commission (EEOC) oversees the law, and there are equivalent state agencies in all but four states, as well as some city-based agencies. The EEOC and the other agencies can fine employers, file lawsuits against them, and certify victims to file lawsuits against their employers.

Victims file with agencies, and then can go to court. If victims are not satisfied with the employer's action, they can file a complaint with the EEOC or other agency. After their investigation, these agencies often allow the complainant to sue the employer—but not the alleged harasser. The exception is sexual assault or rape, where a victim can go directly to the courts to charge the perpetrator in a criminal case.

Academics have a separate legal pathway. Medical students, residents, and academic physicians can file a complaint with their educational institution under Title IX of the Education Amendments of 1972. This pathway is similar to the Title VII pathway.

The Importance of Knowing the Definition of Sexual Harassment

Studies show how widely sexual harassment is misunderstood. More than half of working women reported incidents that actually were sexual harassment, but fewer than 20% described them as such.

Because respondents may not know exactly what sexual harassment is, self-reported rates can vary widely. The EEOC estimates that harassment affects around 25% among women at all workplaces.

The legal definition says sexual harassment is actionable only when it reaches certain levels of severity and pervasiveness.

The courts also have struggled with defining sexual harassment. The legal definition says sexual harassment is actionable only when it reaches certain levels of severity and pervasiveness. In the courts, a serious offense, such as sexual assault, will always be seen as sexual harassment, but a less serious offense, such as some forms of verbal harassment, would have to be repeated many times to be actionable, but just how many times is not clear.

In addition, the legal requirement that sexual harassment must offend a "reasonable person," or a "reasonable woman," is also subject to a great deal of speculation.

Each organization, however, has the ability to precisely define what constitutes sexual harassment in its workplace. This is done in the employer's policy and procedure, where actual examples of behavior may be cited.

Employers' Responsibility Varies by Type of Sexual Harassment

Another wrinkle in defining sexual harassment has to do with how much the employer is at fault in a legal action in the courts. The courts have interpreted Title VII to mean that employers have different levels of responsibility when they deal with two different kinds of sexual harassment.

Hostile work environment. This is a basic case of sexual harassment. The harassment must be serious and persistent, creating unacceptable and offensive work conditions. To be liable, the employer has to have known, or should have known, of the situation but failed to remedy it.

Quid pro quo. This occurs when a person in authority has made a condition of some aspect of the victim's employment—such as promotion, work assignments, or retention—based on a sexual favor or relationship. Under the law, employers have absolute liability for this type of sexual harassment, which means they are liable even if they did not know about it.

Behavior That Constitutes Sexual Harassment

Three Major Types

Besides rape and other kinds of sexual assault, which are comparatively rare in the workplace, sexual harassment can be categorized into three kinds of behavior.

Sexual coercion. These are sexual advances involving conditions of employment contingent upon cooperation, such as promises of a promotion or raise or threats of demotion or termination. This is the same as the quid pro quo harassment mentioned above.

Unwanted sexual attention. This includes unwanted touching or continually asking for a date, without attaching rewards or threats. Like coercion, this is a kind of sexual come-on.

Gender harassment. Rather than being a sexual come-on, this is about a put-down. Harassers express hostility in the form of insult, humiliation, or ostracizing. It is a kind of bullying that is gender-based. This form is considered to be very widespread.

Identifying Specific Behaviors

What specific actions constitute sexual harassment? The following types of behavior could be cited in an employer's policies and procedures. Harassers and victims can be of opposite sexes or the same sex.

Pointed comments. Sexual comments or innuendos in general, sexual comments about a person's clothing or looks, and telling lies or spreading rumors about someone's sex life. Comments can be oral, graffiti, or online statements.

Coarse gestures. Whistling or catcalls; staring at, leering at, or ogling someone; and facial expressions, such as winking, throwing kisses, or licking lips.

Inappropriate words or pictures. Jokes or stories involving sex acts; referring to an adult as "girl," "boy," "hunk," "doll," "babe," "honey," or "bitch"; displaying sexually offensive pictures; and sending emails with sexualized notes and graphics.

Unwanted attention. Repeatedly asking for a date from someone who is not interested; blocking, following, or cornering someone; or stalking that person.

Touching and worse. Touching, patting, pinching, stroking, tickling, or brushing up against another person at the workplace. This category also includes sexual violence, rape, or attempted rape.

Harassment by a supervisor. Sabotaging a person's work efforts or reputation; unequal application of discipline, performance standards, or rules, based on gender; and assigning a person less challenging duties, based on gender.

    Harassment Most Often Experienced by Physicians

    A Medscape survey of more than 6200 physicians and clinicians found they had experienced the following rates of sexual harassment, represented by the percent of recipients experiencing each form.

    • Deliberately infringing on body space (55%)

    • Sexual comments about anatomy (52%)

    • Unwanted groping (46%)

    • Asking repeatedly for a date (26%)

    • Asking to engage in sex (21%)

    • Unwanted sexual text messages (16%)

    • Grabbing body parts (8%)

    • Fondling himself in your view (5%)

    What Is Not Sexual Harassment?

    Confronted by so many ways in which sexual harassment can be committed, men often wonder, do they have to be careful about everything they do? The answer is no. There are many forms of behavior that are not considered sexual harassment.

    Purely innocent movements—such as a man's hand mistakenly brushing up against a woman's body in an elevator, followed by an "excuse me"—is typically not considered groping, and many women disregard such situations.

    Keep in mind that the legal definition of sexual harassment involves what a reasonable person, or a reasonable woman, would consider bad conduct.

    Keep in mind that the legal definition of sexual harassment involves what a reasonable person, or a reasonable woman, would consider bad conduct. Using this standard in a sexual harassment case, the fact finder would ask whether a reasonable person in the plaintiff's position would have felt that the respondent's actions constituted grounds for a sexual harassment claim. By contrast, a reasonable woman standard allows the fact finder to ask whether a reasonable woman in the plaintiff's position would have felt that the respondent's actions constituted sexual harassment.

    However, combatting sexual harassment in the workplace is challenging because work is now where many people—younger people in particular—often form their friendships and romantic/sexual relationships. Do these activities become impossible, given the new atmosphere at work?

    Some people suspect that the campaign against sexual harassment has gone too far. In a 2018 survey, 51% of people of both sexes said #MeToo and related developments had made it harder for men to know how to interact with women in the workplace.

    In the survey, two thirds of people over age 65 felt this way, but just one third of people under age 30 did so. It would seem that younger people appear to be more comfortable with the new attitudes.

    Men are able to show friendship toward women without making them feel cornered. For example, one could compliment a woman on her clothing without making it seem like a sexual come-on—the difference between "I like your new outfit" and "You look really hot in that dress."

    The new codes emphasize civility, which is by no means modern. Now Title VII policies are helping to rebuild codes of mutual respect between the sexes, and this new version of civility involves greater inclusion of the woman's point of view than existed before.

    Changing Views on Sexual Harassment

    Although men have been slower than women to recognize sexual harassment, the vast majority of men now recognize that at least some forms of it exist. In studies, the percentage of men who believed that pressuring a female coworker for sexual favors was sexual harassment rose from 65% in 1980 to 93% in 1994, and to 97% in 2016.

    Since the #MeToo movement started making headlines in 2017, men have tried to understand the issue better. In one recent survey, about half (49%) of American men said #MeToo revelations had made them reassess their own behavior around women.

    In that same period, however, men's support for enforcement has declined. In Gallup polls from 2017 to 2019, men who identified sexual harassment as a major problem fell 13 percentage points, to 53%, and even support by women fell two points, to 71%.

    What is the cause of this backlash, and is it only temporary? There clearly are concerns among some men that the fight against harassment has gone too far.

    There are many skeptics who believe that low-level antics in the workplace, such as offhand sexual jokes, should not be penalized. There is a great deal of evidence, however, that even these minor forms of harassment could have a serious impact on the victim's emotional well-being.

    Even victims who would not consider what they are experiencing to be sexual harassment, they experience similar negative psychological, work, and health consequences as those who do call it sexual harassment.

    The fact is that sexual harassment damages the lives, health, prospects, financial independence, and opportunities of its victims, and costs employers productivity, morale, and talent. Victims of harassment naturally limit their interactions with their harassers. This could inhibit communication on patient care and put patient safety at risk.

    Example of a Hospital-based Sexual Harassment Complaint

    Few sexual harassment cases reach the public—particularly cases involving healthcare—because they are usually resolved confidentially by the employer, or by the EEOC or other agency. Also, victims may feel shame about what happened to them and do not want to see their cases reported in the media.

    When cases are reported in the media, it is often because victims are deeply unsatisfied with the way their complaint is being handled. In November 2018, five women who worked in the laboratory of an Oregon hospital filed a sexual harassment complaint with the state against their employer and also took their case to several media outlets in the state.

    The women alleged, among other things, that a male coworker described his genitalia and sex life, showed "sexually suggestive videos," inappropriately touched women, licked his lips in a sexual way, and made sexual comments about female workers' appearance.

    They said they told him to stop, but he did not stop. One of the women said she complained to a supervisor, but nothing happened. Another said she complained to the human resources (HR) department at the hospital, but it took months for HR to open an investigation.

    One of the women said she had "become physically ill from having to continue to work with [the male coworker] and enduring continued harassment in the workplace." Two of the women left the hospital; one had her hours cut; and one requested a transfer to another hospital in the system, but had not heard back. "I have had to continue working within very close proximity of" the man, she wrote.

    Since then, no further remarks have been made about the case by any of the parties, including the state agency. One might speculate that the resolution was confidential.

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    Susan Strauss, RN, EdD

    | Disclosures | January 01, 2020

    Authors and Disclosures

    Author(s)

    Susan Strauss, RN, EdD

    Strauss Consulting, Burnsville, Minnesota

    Disclosure: Susan Strauss, RN, EdD, has disclosed no relevant financial relationships.