Investigating Workplace Harassment

Module XLIV - Investigating Sexual
Harassment Incidents

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News: Women in Casual Jobs More
Prone to Sexual Harassment
Source: http://sify.com/

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News: College Worker Alleges Sexual
Harassment
Source: http://www.signonsandiego.com/
3 at Southwestern named in lawsuit

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Employee Wins Sex Harassment Case
against Former Boss
Jessie, a 21 year old from Adelaide claimed that Wayne Jeffrey Jaye,
managing director of Studio Silva Photography had sexually harassed
her. Mr. Jaye used to make unwanted advances that Jessie had
refused to respond. So he sacked her from the job.
The court found Jaye guilty and he was ordered to pay a total of
$22,000 in compensation.

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Case Study: Can an Employer be Held
Liable for a Single Harassment Incident?

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Module Objective
• Sexual harassment
• Types of Sexual Harassment
• Consequences of Sexual Harassment
• Responsibilities of Supervisors
• Responsibilities of Employees
• Complaint Procedures
• Investigation Process
• Sexual Harassment Policy
• Preventive Steps
• Laws on Sexual Harassment
This module will familiarize you with:

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Module Flow
Sexual Harassment
Responsibilities for Supervisors
Consequences of
Sexual Harassment
Sexual Harassment Policy Investigation Process
Complaint ProceduresResponsibilities for Employees
Types of Sexual Harassment
Laws on Sexual HarassmentPreventive Steps

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Sexual Harassment
A form of gender discrimination that
involves unwelcoming sexual
advances, favors, and other verbal or
physical conduct of a sexual nature
• Submission or rejection is made a term or condition of a
person’s job, pay, and career
• Submission or rejection is used as a basis for career or
employment decisions
Sexual harassment can occur in a
variety of circumstances when:

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Sexual Harassment (cont’d)
• It is unsolicited
• It is power motivated
• It is illegal
• It is an offensive conduct
Sexual Harassment:

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Types of Sexual Harassment
• Tolerating harassment for the benefit of job
• It is “some thing you do for me and something I
will do for you” policy (mostly black mailing)
• Job benefit can be promotion or job security
Quid Pro Quo Harassment
• Environment that is abusive and leads to
harassment
• It can be verbal or physical
Hostile Work Environment
Harassment
General classification of sexual harassment:

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Types of Sexual Harassment (cont’d)
• Profanity, off-colored jokes
• Sexual comments and threats
• Whistling and passing lewd gestures
• Spreading rumors of sexual acts or involvement
Verbal
• Stroking, grabbing, patting, hugging, pinching, and provocatively
posing
• Cornering or blocking passageway
Physical
• Cab facility
• It is provided for employee’s benefit but is taken as an advantage for harassment
• Harassment by superiors in public places
According to research, some harassment occurs
off-premise:

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Consequences of Sexual Harassment
It distracts individuals from their work
It creates hostile work environment and increases
absenteeism for avoiding harassment
It increases friction among staff and hence affects their
efficiency
It affects the individual’s morale
It may lead to a loss of career, reference, or recommendations
Employees feel degraded because of constant inquiries and
gossips at the work-place
It leads to job dissatisfaction
It affects the trust towards the organization

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Sexual Harassment Statistics
Sexual Harassment cases filed with The U.S. Equal Employment Opportunity Commission
Source: http://www.eeoc.gov/

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Do’s and Don'ts if You Are Being
Sexually Harassed
Do not make excuses for the perpetrator
Do not pretend as if nothing has happened
Make clear that you have the right to be free from sexual harassment
Do not get manipulated with the harasser’s tactics
Avoid being silent against the harasser (as it protects him/her)

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Stalking
Stalking is a repeated and unwelcomed activity such as
gazing, following, or harassing a person
It is also referred as Criminal Harassment which is any
form of harassment that causes the person being
harassed to have a reasonable fear for his or her safety
Unlike single act, it is a series of act that harasses the
victim
A stalker can be a former intimate, family member,
workplace contact, friend, stranger, or any other
acquaintance

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Stalking (cont’d)
• Person (stalker) who is the former partner or friend to the victim
Rejected stalker
• Person who wants to take revenge on the victim for any reasons
Resentful stalker
• Predator who wants to physically or sexually attack the victim
Predatory stalker
Types of stalkers:

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Stalking (cont’d)
• Person who looks out for opportunities to establish an intimate
and loving relationship with the victim
Intimacy seeker
• Suitor who desires to have a physical or intimate relation with
the victim
Incompetent suitor
• Stalker who believes that the victim is in love with him/her
though he/she had not made any statement
Erotomaniac and morbidly infatuated
• Stalker who extends stalking through the electronic media
Cyber stalker

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Stalking Behaviors
Unwelcomed phone calls
Sending messages such as text messages, email, or personal
letters
Threatening victim in order to gain attention
Using electronic medium to harass the victim (usually
referred as cyber stalking)
Sending romantic or porn related gifts to the victim
Multiple perpetrators’ involvement (gang stalking)
Forcing the victim via threatening
Insulting the victim

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Stalking Effects
Increased absenteeism
Declined performance
Feels humiliated as he/she becomes the topic of discussion
among peers
Loss of job, references, or career
Forced to relocate
Loss of trust of coworkers
Loss of supporting network
Loss of confidence, motivation, and trust in people
Depression, panic, headaches, sleeplessness, and anger

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Stalking Effects (cont’d)
• 93% of the stalking victims have negative impact on their
personal relationships
• 71% of victims have conflicts with their current partners
• 63% of victims reported that they have conflicts with friends
due to stalkers
• 38% of the stalking victims say that their work or school
performance is declining
According to Stalking Help, a stalking
victims' resource organization is based
at the University of Texas:

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Guidelines for Stalking Victims
Use private post office box to keep residential address confidential
Obtain unpublished phone numbers
Use caller-ID
Remove the phone number from directories that are published by phone companies
Never use residential address for subscribing to magazine
Avoid providing your full name
Protect your social security number
Keep a log of every stalking incident
Change the email address if it is used for stalking
Instead of fearing, threaten the stalker
Report to the police

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Responsibilities of Supervisors
• Set a code of conduct and ensure that all
employees follow it
• Know how to recognize the potential or
actual misconduct, and how to handle
these problems in an effective manner
• Create and maintain a safe and secure
environment at the workplace
• Address and document the employee’s
problems as soon as possible
Supervisors must:

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Responsibilities of Supervisors (cont’d)
Report conduct and responsibility violations, through
appropriate internal supervisory channels
Encourage upward communication
Prevent the workplace from offensive conduct and retaliation
Treat complaints seriously
Punish the offender for the harassment
Prevent further harassment
Conduct periodic training for all employees, with active
involvement of the complaints’ committee

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Responsibilities of Employees
Consider sexual harassment as a serious offence
Stick to work environment policies
Develop complaint procedures
Report acts of harassment to a supervisor
Refrain from participation or encouragement of actions that
could be perceived as harassment
Condemn the behavior

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Complaint Procedures
Victim prepares a complaint
Victim files the complaint
Victim transmits the complaint to the supervisor
Supervisor reviews the complaint
Supervisor informally resolves the complaint

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Investigation Process

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Investigation Process
The investigator must be impartial, with an open mind until the end
Interview all witnesses and obtain such evidence that is relevant to the complaint
Review the investigation findings with the complainant and the alleged offender to receive
any further information
The nature of the complaint is explained to the investigator, so that one has the
opportunity to understand the major elements of the complaint
The investigator is given a reasonable chance to respond to the evidence of the
complainant and to bring his/her own evidence
Find out what outcome the complainant would like to see

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Investigation Process (cont’d)
If the investigator is in doubt about whether or how to continue,
they will seek appropriate counsel
When the investigation is complete, the investigator should report
the findings to the decision makers

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Sexual Harassment Investigations
• Involve more than one investigator, if possible
• Maintain confidentiality of the case
• Conduct interviews in a private room
Preliminary considerations:
• Review the relevant personnel files and company’s
policies
• Interview the victim
• Take complaint seriously
• Explain the investigation process to the victim and assure him
complete confidentiality
• Find out what happened and the effect of the harassment on the
victim
• Find out names of the witnesses
• Ask the victim what he/she wants
• Assess his/her credibility
• Take a statement, if warranted
• Type the notes of the interview
Gathering the facts:

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(cont’d)
• Explain the purpose of the interview
• Identify the victim and the specific basis of the sexual
harassment complaint
• Ask him/her to respond to the charges
Interview the perpetrator
• Try to elicit identity of the victim and the perpetrator from
the witness instead of introducing the victim and
perpetrator to the witness at the beginning of the interview
• Find out what he/she knows
• Distinguish between first and secondhand knowledge
• Assess the credibility of the witness
• Take a statement, if warranted
Interview corroboration witnesses

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(cont’d)
• Evaluate the facts from a reasonable
perspective
• Distinguish between "unwelcome" and
"voluntary" sexual conduct
• Draft a thorough and even-handed report
• Submit the report to the decision-making
official
• Follow up with the victim and the
perpetrator after the decision has been
made
Evaluating the facts and
making the decision

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Sexual Harassment Policy
• The complainant may attempt to resolve the matter directly
with the alleged offender and report back to the complaint-
receiving official
• The complaint-receiving official may notify the alleged offender
of the complaint, paying appropriate attention to the need of
maintaining confidentiality
• The complainant may also contact the affirmative action officer
directly
Informal procedures

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Sexual Harassment Policy (cont’d)
• The complainant has the right to file a formal written
complaint with the affirmative action officer
• Upon receiving a formal complaint, the affirmative action
officer shall inform the alleged offender of the allegation and
identity of the complainant
Formal procedures

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Preventive Steps
Discuss preventive actions against sexual harassment at workers’ meetings
and employer-employee meetings
Make the female employees aware of their rights by displaying guidelines
prominently
An employer must support persons affected by sexual harassment from
outsiders
Send a top-down message to employees and union members that sexual
harassment should not be tolerated
Create a strong written policy prohibiting illegal discrimination against any
employee that specifically addresses sexual harassment
• Describes steps to be taken if harassment occurs
Conduct a survey among employees and union members about sexual
harassment

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Preventive Steps (cont’d)
Implement formal and informal problem solving mechanisms, grievance
procedures, investigative measures, and disciplinary procedures to resolve
the sexual harassment complaints
Conduct awareness trainings regularly for supervisors to review the
organizational policy, build problem-solving skills, review relevant law, and
discuss their responsibility to create a harassment-free workplace
Provide ongoing sexual harassment awareness training for every level of
employee or union member
Assess the work environment for awareness about sexual harassment by
surveying employees and union members

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Laws on Sexual Harassment

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U.S Laws on Sexual Harassment
Title VII of the 1964 Civil Rights Act
The Civil Rights Act of 1991
Title IX of the Education Amendments of 1972
Equal Protection Clause of the 14th Amendment
Common Law Torts
State and Municipal laws

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The Laws on Sexual Harassment:
Title VII of the 1964 Civil Rights Act
• Harassing a person because of their friends', relatives', or
associates' race, skin, color, religion, gender, national origin, age,
or disability
• Treating people in similar jobs differently
• Making assumptions about the abilities of persons based on
stereotypes, physical characteristics, or age
• Retaliating against a person because a complaint was filed
Examples:
It prohibits employment discrimination on the basis of race, color, religion, sex
or national origin in hiring, employment (all terms, conditions and benefits), and
termination
It applies to businesses with 15 or more employees

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The Civil Rights Act of 1991
It establishes private and public liability for the acts of supervisors and
employees that constitute of sexual harassment of employees
It provides appropriate remedies for intentional discrimination and
unlawful sexual harassment in the workplace
Legislation is necessary to provide additional protections against
unlawful discrimination in employment
It responds to recent decisions of the Supreme Court by expanding the
scope of relevant civil rights statutes in order to provide adequate
protection to victims of the discrimination

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The Laws on Sexual Harassment: Equal
Protection Clause of the 14th Amendment
It creates public institutional liability for
institutional sexual harassment of
employees including compensatory and
punitive damages
It attempts to secure the promise of the
United States' professed commitment to
the proposition that "all men are
created equal"

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Common Law Torts
• Identify the tort actions most commonly connected with sexual
harassment cases
• Explain, in general, the circumstances under which each tort
action may be filed
• Identify the reasons that harassed workers may choose to file, or
to avoid filing and tort actions
• Explain the relationship between sexual harassment law and
workers' Compensation
Objectives:
It helps to identify the common-law actions that may be filed by the
harassed workers

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State and Municipal Laws
It includes rape, sexual abuse, sexual assault,
and child molestation
It imparts employees of the name, address, and
telephone number of each state and federal
agencies to which inquiries and complaints
concerning sexual harassment may be made
Sets out the deadlines for filing a complaint of
sexual harassment with the state and federal
agencies

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Australian Laws on Sexual
Harassment
Sex Discrimination Act 1984
Equal Opportunity for Women in the Workplace Act 1999
Anti-Discrimination Act 1991
Workplace Relations Act 1996

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Sex Discrimination Act 1984
• To give effect to certain provisions of the convention on
the elimination of all forms of discrimination against
women
• To eliminate discrimination involving sexual harassment
in offices, in educational institutions, and in other areas of
public activity
Objectives:
An act relating to discrimination on the ground of sex,
marital status, or sexual harassment

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The Laws on Sexual Harassment: Equal
Opportunity for Women in the Workplace
Act 1999
• To promote the principle that employment for women
should be dealt with on the basis of merit
• To promote the elimination of discrimination against and
the provision of equal opportunity for women in relation
to employment matters amongst employers
Objectives:

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Anti-Discrimination Act 1991
• Prohibiting sexual harassment
• Allowing a complaint against a person who has been sexually
harassed
• Using the agencies and procedures established to deal with the
complaint
Purpose is achieved by:
Act promotes equality of opportunity for everyone by protecting
them from sexual harassment

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Workplace Relations Act 1996
• Provisions in awards and agreements are not to be
discriminatory – on the grounds of sexual preference
• Orders equal remuneration for men and women workers for
work of equal value without sex-based discrimination
Objective regarding sexual harassment:
This act describes the workplace relations

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Indian Law: Sexual Harassment of
Women at Workplace (Prevention,
Prohibition, and Redressal) Bill, 2006
• Duty of the workplace to constitute internal complaints
committees
• Constitution of internal and local complaints committee
Authorities under this act:
• Ensure a safe environment, free from sexual harassment
including prevention and deterrence of sexual harassment
• Lay down clear policy on dealing with cases of sexual
harassment and constitute an internal complaints
committee
• Prepare and prominently display a policy for the
prevention and prohibition of sexual harassment
Duties of authorities under the act:

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German Law: Protection of
Employees Act
• Section 1: This Act is to maintain the dignity of men and
women through protection against sexual harassment at
the workplace
• Section 2: Protection against sexual harassment
• Section 3: Employees' right of complaint
• Section 4: Measures by the employer or manager; right to
refuse performance
• Section 5: Further training for persons employed in the
public service regarding harassment
Article 10. Act protects employees
against sexual harassment at the
workplace (Protection of Employees
Act)

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UK Law: The Employment Equality
(Sex Discrimination) Regulations 2005
• On the ground of her sex, he engages in unwanted conduct that has the
purpose or effect
• He engages in any form of unwanted verbal, non-verbal, or physical
conduct of a sexual nature that has the purpose or effect
• On the ground of her rejection of or submission to unwanted conduct
If a person subjects a woman to harassment
• A, on the ground that B intends to undergo, is undergoing, or has
undergone gender reassignment, engages in unwanted conduct
• A, on the ground of B's rejection of or submission to unwanted conduct
If a person ("A") subjects another person ("B") to
harassment
Purpose related to harassment and sexual harassment:

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Law of the People's Republic of China
on the Protection of Rights and
Interests of Women
• No unit while employing staff, should refuse to employ women by
reason of sex or raise the employment standards for women
Article 23
• Sexual harassment against women is prohibited
• The female victims shall have the right to file complaints against the
units where they work
Article 40
• If a person commits sexual harassment or domestic violence against a
woman, victim may apply to a public security organization for an
administrative sanction against the violator
Article 58
Articles related to sexual harassment

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Penal Code, Section 509.
in Malaysia
Statement: "Whoever, intending to insult the modesty of
any women, utters any words, makes any sound or
gesture or exhibit any object, intending that such word
or sound shall be heard, or such gesture or object shall
be seen by such woman, shall be punished with
imprisonment for a term which may extend to 5 years
or with fine, or with both“
• It deals more with physical aspects
• Industrial Relations Act 1967, may be amended to provide for
action against sexual harassment perpetrators

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Sample Complaint Form

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Sample Complaint Form (cont’d)

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Laws Against Stalking
• Interstate Travel to Commit Domestic Violence - requires that:
• The victim must be a spouse or intimate partner of the defendant
• The defendant must have crossed a State line (or entered or left Indian
country) with the intent to injure, harass, or intimidate one's spouse or
intimate partner
• As a result of such travel, the defendant intentionally commits a crime
of violence
• The defendant causes bodily injury to the spouse or intimate partner
18 USC § 2261A
• Two laws authorize grants for law enforcement agencies to develop
programs addressing stalking and for states to improve the process for
entering stalking-related data into local, state and national crime
information databases such as the National Crime Information Center
42 USC §§ 3796gg, 14031
Federal Laws

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Laws Against Stalking (cont’d)
• Penal code 646.9
• A stalker is someone who willfully, maliciously ,and repeatedly
follows or harasses another (victim) and who makes a credible
threat with the intent to place the victim or victim's immediate
family in fear for their safety. The victim does not have to prove
that the stalker had the intent to carry out the threat
California laws

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Summary
Sexual Harassment is a form of gender discrimination that
involves unwelcome sexual advances, favors, and other verbal
or physical conduct of sexual nature
Sexual Harassment is of two types: verbal and physical
The investigator must be impartial while investigating the case
When the investigation is complete, the investigator should
report the findings to decision makers

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Investigating Workplace Harassment

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