Surprisingly, even in the wake of the #MeToo movement, some employers have failed to take adequate steps to eradicate sexual harassment from their operations. These employers do so at their peril and that of their business.
Thoughtful workplace leaders recognize the adverse impact of sexual harassment on their business operations. Adverse effects from sexual harassment on a business include: bad publicity, employee dissatisfaction, increased employee turnover, employee withdrawal or diminished engagement, increased absenteeism, expensive, time-consuming litigation potentially leading to damage awards against the business, and fines from the EEOC or similar state enforcement agencies.
Ethical, caring employers will also recognize the adverse impact of sexual harassment in their workplace has on those targeted by a harasser. These impacts may include depression, anxiety, insecurity, low self-esteem, nightmares, and sleep disorders, among others.
Sexual harassment is not limited to the for-profit sector. The potential for sexual harassment can be, and is, present in nonprofit operations as well. Therefore, like for-profit businesses, nonprofit leaders need to take steps to ensure that their operations are free of sexually harassing behavior. In doing so, ethical nonprofit leaders will do more than just the bare minimum in protecting their organizations from the bad publicity, legal and financial penalties that naturally follow allegations of sexual harassment in the workplace. Those leaders will do whatever it takes to ensure that their employees, volunteers, and customers are not faced with harassing behavior while working for their organizations.
What is Sexual Harassment?
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 when it occurs in the workplace. Many, if not most, states also have laws prohibiting sexual harassment in the workplace.
EEOC guidelines define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- Submission to such conduct is a term or condition of an individual’s employment. The requirement may be stated outright or may be implicit or implied.
- Submission to or rejection of the conduct is a basis for employment decisions
- Conduct of a sexual nature has the purpose or effect of unreasonably interfering with work performance
- Conduct of a sexual nature creates an intimidating, hostile, or offensive working environment.
“Unwelcome” is the critical word. Sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome.
Anyone, male or female, can be a perpetrator or victim of sexual harassment. The victim and the harasser can be a woman or a man, and they can be of either gender. A man can sexually harass another man, as can a woman sexually harass another woman.
What constitutes sexual harassment can vary depending on the situation and the people involved. Sexual innuendos and comments or sexually suggestive jokes in the workplace may be sexual harassment in some contexts.
Two Types of Sexual Harassment
There are generally two types of prohibited sexual harassment:
Quid pro quo sexual harassment is when employment decisions – such as promotions, assignments, or keeping your job – are based on submission to demands for sexual favors. Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature is quid pro quo sexual harassment when:
- submission to such sexual conduct is explicitly or implicitly a term or condition of employment or
- submission or rejection of sexual behavior is the basis for employment decisions.
Hostile work environment is when sexual harassment makes the workplace environment intimidating, hostile, or offensive to employees. Examples might include unwelcome touching or brushing against a person, displays of sexually explicit material, lewd or vulgar conversations, or jokes being told in the workplace which may make others uncomfortable, and therefore constitute unlawful sexual harassment.
Unwelcome sexual advances, requests for sexual favors, and other verbal sexual conduct can be hostile environment sexual harassment when:
- the behavior has the purpose or effect of unreasonably interfering with an employee’s work performance or
- the conduct creates an intimidating, hostile, or offensive working environment.
What is Third-Party Sexual Harassment?
It is not just employees that can harass other employees. The harasser can be someone who is not an employee of the employer, such as a client or customer. Also, a victim of sexual harassment does not necessarily have to be the person directly being harassed; the victim could be an employee who is indirectly but negatively affected by the offensive conduct.
Third-party sexual harassment typically involves one of two things:
- Someone outside the nonprofit. This type of harassment is done by someone other than a co-worker or supervisor, such as a client, customer, vendor, or service provider.
- Bystander victimization. This type of third-party harassment occurs when an employee feels that conduct is not directed at them but within their presence; it is of such an offensive nature to make them feel uncomfortable. Possible scenarios include co-workers telling lewd jokes within earshot of the other persons, or when a person keeps a sexually-explicit calendar on their desk in open view of anyone passing their desk.
Businesses, including nonprofits, can potentially be held liable for acts of sexual harassment perpetrated by third parties against nonprofit employees once the employer becomes aware that such harassment is taking place. In that respect, responsibility for third-party sexual harassment is less about an alleged harasser’s conduct and more about the employer’s response to knowledge of that conduct. Although employers can’t control all third parties’ actions, the employer has full control over its response to allegations of sexual harassment. Liability may exist when an employer’s reaction to third-party harassment is inadequate. All employers have a duty to provide their employees with a safe work environment, including work environments free from harassing or intimidating conduct.
In cases where an employee reports third-party sexual harassment to a supervisor, it is incumbent on the organization to investigate those allegations and, if found to be accurate, take steps to stop the harassing behavior – up to and including barring the third party from the premises.
Third-party harassers could potentially be perpetrated by anyone who interacts with employees, including:
- Clients, customers, or program participants
- Independent contractors or consultants
- Vendors, service providers, and delivery workers
- Partners from other community organizations
- Visitors to a nonprofit’s facilities or programs
- Donors or funders
- Board members and other volunteers
Have a plan for training on the prevention of workplace sexual harassment
A formalized sexual harassment training program is a must for every nonprofit. Many states are mandating sexual harassment training be provided annually. Examples of some model sexual harassment training programs are available from the New York State Department of Labor, New York City’s Department of Human Rights, and the Illinois Department of Human Rights. Each of these training is geared toward their particular jurisdiction as it relates to state law. Still, each is a good starting place for developing individualized training for nonprofits in any state related to federal law.
Additional Resources
New York State Department of Labor Model Sexual Harassment Training, New York State Department of Labor, https://www.labor.ny.gov/immigrants/sexual-harassment-prevention.shtm
New York City Department of Human Rights Sexual harassment training model, https://www1.nyc.gov/site/cchr/law/sexual-harassment-training.page
Illinois Department of Human Rights model for Sexual Harassment Training model, https://www2.illinois.gov/dhr/Training/Pages/State-of-Illinois-Sexual-Harassment-Prevention-Training-Model.aspx
Confronting Sexual Harassment (4-article package), Harvard Business Review, May-June 2020 Issue, https://hbr.org/2020/05/confronting-sexual-harassment%27
Workplace Harassment: An Unacceptable Risk, Nonprofit Risk Management Center, https://nonprofitrisk.org/resources/e-news/workplace-harassment/