Sexual Harassment Frequently Asked Questions

When does harassment violate federal law?

Sexual harassment is a type of discrimination based on sex. Harassment violates federal law if it involves discriminatory treatment based on race, color, sex (with or without sexual conduct), religion, national origin, age, disability, or because the employee opposed discrimination or participated in an investigation or complaint proceeding.

Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create a hostile work environment or result in a tangible employment action, such as hiring, firing, or demotion.

Verbal or other non-physical conduct must normally create a pattern to be unlawful. However, a single incident can be unlawful if sufficiently severe, including unwanted physical contact by a coworker, or a supervisor’s threat of adverse action as part of a demand for sexual favors.

When is an employer legally responsible for harassment by a supervisor?

An employer is always responsible for harassment by a supervisor that resulted in a tangible employment action. If the harassment did not lead to a tangible employment action, the employer is liable unless it proves that: 1) it exercised reasonable care to prevent and promptly correct any harassment; and 2) the employee unreasonably failed to complain to management or to avoid harm otherwise.

An individual qualifies as a supervisor if the individual has the authority to recommend tangible employment decisions affecting the employee or if has the authority to direct the employee’s daily work activities.

A tangible employment action means a significant change in employment status. Examples include hiring, firing, demotion, undesirable reassignment, a decision causing a significant change in benefits, and compensation decisions.

What should employers do to prevent and correct harassment?

Employers should establish, distribute to all employees, and enforce a policy prohibiting harassment and setting out a procedure for making complaints. In most cases, the policy and procedure should be in writing. If the business conducts a prompt, thorough, and impartial investigation of any complaint that arises and undertakes swift and appropriate corrective action, it will have fulfilled its responsibility to effectively prevent and correct harassment.

View training programs that help employees and supervisors learn how to deal with sexual harassment in the workplace.

What should an anti-harassment policy state?

An anti-harassment policy should make clear that the employer will not tolerate harassment based on race, sex, religion, national origin, age, or disability, or harassment based on opposition to discrimination on participation in complaint proceedings. The policy should also state that the employer will not tolerate retaliation against anyone who complains of harassment or who participates in an investigation.

What are important elements of a complaint procedure?

  • The employer should encourage employees to report harassment before it becomes severe or pervasive.
  • The employer should designate more than one individual to take complaints (not limited to the immediate supervisor) and should ensure that these individuals are in accessible locations. The employer also should instruct all of its supervisors to report complaints of harassment to appropriate officials.
  • The employer should assure employees that it will protect the confidentiality of harassment complaints to the extent possible.
  • Employers should not require that a complaint be given in a specific format (or in writing) before agreeing to respond. Any report of alleged harassment, including verbal complaints, should be addressed.

Is a complaint procedure adequate if employees are instructed to report harassment to their immediate supervisors?

No, because the supervisor may be the one committing harassment or may not be impartial. An employer should designate at least one official outside an employee’s chain of command to take complaints, to assure that the complaint will be handled impartially.

How should an employer investigate a harassment complaint?

An employer should conduct a prompt, thorough, and impartial investigation. The alleged harasser should not have any direct or indirect control over the investigation.

The investigator should interview the employee who complained of harassment, the alleged harasser, and others who could reasonably be expected to have relevant information.

Before completing the investigation, the employer should take steps to make sure that harassment does not continue. If the parties have to be separated, the separation should not burden the employee who complained of harassment. An involuntary transfer of the complainant could constitute unlawful retaliation. Other examples of interim measures are making scheduling changes to avoid contact between the parties or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.

How should an employer correct harassment?

If an employer determines that harassment occurred, it should take immediate measures to stop the harassment and ensure that it does not recur. Disciplinary measures should be proportional to the seriousness of the offense. The employer also should correct the effects of the harassment by, for example, restoring leave taken because of the harassment and expunging negative evaluations in the employee’s personnel file that arose from the harassment.

Are there other measures that employers should take to prevent and correct harassment?

  • An employer should correct harassment that is clearly unwelcome regardless of whether a complaint is filed. For example, if there is graffiti in the workplace containing racial or sexual epithets, management should not wait for a complaint before removing it.
  • An employer should screen applicants for supervisory jobs to see if they have a history of engaging in harassment. If so, and the employer hires such a candidate, it must take steps to monitor actions taken by that individual in order to prevent harassment.
  • An employer should keep records of harassment complaints and check those records when a complaint of harassment is made to reveal any patterns of harassment by the same individuals.

View training programs that help employees and supervisors learn how to deal with sexual harassment in the workplace.

Does an employee who is harassed by a supervisor have any responsibilities?

Yes. The employee must take reasonable steps to avoid harm from the harassment. Usually, the employee will exercise this responsibility by using the employer’s complaint procedure. Employees should be encouraged to inform the offender that the conduct is unwelcome; however, this is not necessary for the employee to establish a claim.

Is an employer legally responsible for its supervisor’s harassment if the employee failed to use the employer’s complaint procedure?

No, unless the harassment resulted in a tangible employment action or unless it was reasonable for the employee not to complain to management. An employee’s failure to complain would be reasonable, for example, if he or she had a legitimate fear of retaliation. The employer must prove that the employee acted unreasonably in the failure to complain.

If an employer first learns about a possible harassment situation from the Equal Employment Opportunity Commission after a complaint has been filed, how should the employer respond?

The employer should immediately begin an investigation of the incident. At some point, the employer may find itself in mediation over the alleged incident, and will want to have gathered evidence and statements regarding the situation. The EEOC will not be impressed if an employer enters mediation by reporting that the company took no action to investigate, even after learning of the incident.

An employer may also have an opportunity to offer a position statement in response to a claim, and preparing that statement will require an investigation. Employers are advised to seek legal counsel when creating these statements.

If an employee complains to management about harassment, should the employee wait for management to complete the investigation before filing a charge with the EEOC?

It may make sense to wait to see if management corrects the harassment before filing a charge. However, if management does not act promptly to investigate the complaint and undertake corrective action, then it may be appropriate to file a charge. The deadline for filing an EEOC charge is either 180 or 300 days after the last date of alleged harassment, depending on the state in which the allegation arises. This deadline is not extended because of an employer’s internal investigation of the complaint.