Sexual Harassment Prevention
Training – California (Supervisors)
Instructor: Janene A. Convery, PHR, SHRM-CP
Senior Learning Consultant, Enterprise Learning Innovation & Standards, ADP
Lesson 1: SEXUAL HARASSMENT IN THE
WORKPLACE
Welcome to our training on sexual harassment prevention. I’m Janene Convery. In recent years, the
topic of sexual harassment in the workplace has been brought into the national spotlight, bringing
with it renewed awareness about the serious and unacceptable nature of these actions and the
severe consequences that follow.
The term “sexual harassment” may mean different things to different people, depending on your life
experience. That’s why we’re here today. Certain conduct that may seem acceptable or may have
seemed acceptable in the past, may not be acceptable to the people we work with. The purpose of
this training is to create a common understanding about what is and what is not acceptable in the
workplace.
Sexual Harassment in the Workplace
The State of California has long been committed to ensuring that all individuals have an equal
opportunity to enjoy a fair, safe, and productive work environment. Laws and policies help ensure
that diversity is respected and that everyone can enjoy the privileges of working in the State of
California. Preventing sexual harassment is critical to our continued success.
Let’s start by making one thing clear: sexual harassment will not be tolerated. This means any
harassing behavior will be investigated and the perpetrator or perpetrators will be told to stop. It also
means that disciplinary action may be taken, if appropriate. If the behavior is sufficiently serious,
disciplinary action may include termination. Repeated behavior, especially after an employee has
been told to stop, is particularly serious and will be dealt with accordingly.
This interactive training will help you better understand what is considered by law to be sexual
harassment. It will also show you how to report sexual harassment in the workplace, as well as your
options for reporting workplace sexual harassment to external state and federal agencies that
enforce anti-discrimination laws. These reports will be taken seriously and promptly investigated,
with effective remedial action taken where appropriate.
What is Sexual Harassment?
Sexual harassment in the workplace is a form of sex discrimination that violates Title VII of the Civil
Rights Act of 1964 and California’s Fair Employment and Housing Act. The State of California’s
regulations define sexual harassment as unwanted sexual advances, or visual, verbal or physical
conduct of a sexual nature. Sexual harassment includes harassment on the basis of sex, sexual
orientation, self-identified or perceived sex, gender expression, gender identity, pregnancy, childbirth
or related medical conditions, and the status of being transgender. This definition also includes
harassment based on the perception of these characteristics.
Sexual harassment includes unwelcome conduct which is either of a sexual nature, or which is
directed at an individual because of that individual’s sex. The Fair Employment and Housing
Commission guidelines provide a partial list of violations and characteristics of these behaviors:
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Such conduct has the purpose or effect of unreasonably interfering with an individual’s work
performance or creating an intimidating, hostile, or offensive work environment, even if the
reporting individual is not the intended target of the sexual harassment;
Such conduct is made either explicitly or implicitly a term or condition of employment; or
Submission to or rejection of such conduct is used as the basis for employment decisions
affecting an individual’s employment.
These behaviors could include:
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Visual conduct, such as leering, making sexual gestures, or displaying sexually suggestive
objects or pictures, cartoons or posters;
Verbal conduct, such as making or using derogatory comments, epithets, slurs and jokes.
This conduct also includes verbal abuse of a sexual nature, graphic verbal commentaries
about an individual’s body, and sexually degrading words used to describe an individual;
Physical conduct, including touching, assault, and impeding or blocking movements;
Offering employment benefits in exchange for sexual favors; and
Making or threatening retaliatory action after receiving a negative response to sexual
advances.
Effective Harassment Prevention
Employers in California must take any reasonable steps necessary to prevent and promptly correct
discriminatory and harassing conduct. They are required to create a work environment free of
prohibited employment practices.
Reasonable steps in preventing harassment include an obligation to inform employees about their
protections against harassment in the workplace, such as:
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Complying with posting and notice requirements
Creating and distributing anti-harassment policies for employee handbooks
Providing training
Ensuring that an effective complaint mechanism is in place and that employees are aware of
the process
Conducting investigations
Correcting and remedying any harassment in the workplace, including taking steps to
prevent future acts.
You must take your obligations in this area seriously. A strong effort to prevent harassment can:
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Prevent unlawful conduct from occurring;
Help you avoid or decrease liability; and
Make the workplace a comfortable environment for everyone.
In our next lesson, we’ll take a closer look at specific types of sexual harassment.
Lesson 1 Quiz: Sexual Harassment in the Workplace
1. T/F: While sexual harassment includes harassment on the basis of sex, sexual orientation, gender
identity, pregnancy and more, it does not include harassment based on the perception of such
characteristics.
2. Sexual harassment behaviors include:
A.
B.
C.
D.
E.
Displaying sexually suggestive objects
Acting threateningly after receiving a negative response to sexual advances
Offering employment benefits in exchange for sexual favors
Unwanted touching or assault
All of the above
3. T/F Employers in California must have an effective sexual harassment complaint mechanism in
place and ensure all employees are aware of the process.
4. T/F Sexual harassment means the same thing to everyone.
Lesson 2: TWO TYPES OF SEXUAL
HARASSMENT
There are two main types of sexual harassment.
Hostile Environment
First, Hostile Environment. Any employee can create a hostile work environment. With this type of
harassment, there doesn’t need to be the threat of an adverse employment action. Instead, the
harasser engages in unwelcome conduct, based on sex, which creates a workplace that is
intimidating, hostile, or offensive to a reasonable person. The conduct might be specifically targeted
at an individual, but it doesn’t need to be.
A hostile environment on the basis of sex may be created by any action previously described, in
addition to:
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Unwanted words, visual signs, jokes, pranks, intimidation, physical actions, or violence,
either of a sexual nature or not of a sexual nature, directed at an individual because of that
individual’s sex.
Sexual or discriminatory displays or publications anywhere in the workplace, such as
displaying pictures, calendars, objects, or other materials that are sexually demeaning or
pornographic. This includes sexual displays on workplace computers or cell phones and
sharing such displays while in the workplace.
This also includes sexually oriented gestures, noises, remarks, jokes, or comments about a
person’s sexuality or sexual experience.
Also included are hostile actions taken against an individual because of that individual’s sex, such
as:
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Rape, sexual battery, molestation, or attempts to commit these assaults;
Physical acts of a sexual nature (including, but not limited to, touching, pinching, patting,
grabbing, kissing, and hugging);
Interfering with, destroying, or damaging a person’s workstation, tools, or equipment, or
otherwise interfering with the individual’s ability to perform the job;
Sabotaging an individual’s work;
Bullying, yelling, and name-calling;
Harassing behavior directed toward the complainant;
Harassing behavior witnessed by the complainant; and
Widespread sexual favoritism that infects the workplace creating a hostile or abusive
environment
An employee who makes a hostile work environment claim has to demonstrate the problem was
severe and pervasive. This is criteria for judging behavior as altering the conditions of employment
with a hostile work environment, or even an abusive one.
Abusive conduct is defined as conduct of an employer or employee in the workplace with malice that
a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate
business interests. This can include:
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Repeated infliction of verbal abuse
Derogatory remarks
Insults and epithets
Verbal or physical conduct that a reasonable person would find threatening, or
Intimidating, humiliating, gratuitous sabotage, or undermining of a person’s work
performance
A single act shall not constitute abusive conduct, unless it is especially severe and egregious.
In deciding if harassment is sufficiently severe or pervasive to create a hostile work environment,
courts will look at all the circumstances, such as:
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The nature of the conduct;
The frequency of the conduct;
The severity of the conduct;
Its context;
Whether the conduct was physically threatening or humiliating, or a mere offensive
utterance; and
Whether the conduct unreasonably interferes with an employee’s work performance.
Quid Pro Quo
The second main type of sexual harassment is Quid Pro Quo Sexual Harassment.
Quid pro quo occurs when a person in authority trades, or tries to trade, job benefits for sexual
favors. Quid pro quo is a legal term meaning a trade. This type of harassment occurs between an
employee and someone with authority, like a supervisor, who has the ability to grant or withhold job
benefits.
Quid pro quo sexual harassment includes:
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Offering or granting better working conditions or opportunities in exchange for sexual favors
Threatening adverse working conditions (like demotions, shift alterations, or work location
changes) or denial of opportunities if a sexual relationship is refused
Using pressure, threats, or physical acts to force a sexual relationship, and
Retaliating for refusing to engage in a sexual relationship
The “Reasonable Victim” Standard
To be unlawful, harassment must be both subjectively and objectively offensive.
Courts use what is called a “reasonable victim” standard to determine if, given all the circumstances,
the situation constitutes harassment. The severity of the harassment will be judged from the
perspective of a reasonable person in the alleged victim’s position.
According to the court, a complete understanding of the victim’s view requires an analysis of the
different perspectives of men and women and, more importantly, the perspective of the individual
who is making the harassment allegations. The court notes that the concept of what a “reasonable
victim” would consider sufficiently severe or pervasive to create a hostile work environment can
change over time. The standard of what is acceptable behavior should mirror those changes.
Even if the intention is not hostile, if a person in the victim’s position, whether male or female, would
consider the conduct offensive enough to alter working conditions, there could be basis for a sexual
harassment claim. This is true even if the person who makes the comment intended it to be a
compliment without sexual overtones.
Sex Stereotyping
Finally, let’s close this lesson by talking about sex stereotyping. Sex stereotyping occurs when
conduct or personality traits are considered inappropriate simply because they may not conform to
other people's ideas or perceptions about how individuals of either sex should act or look. Harassing
a person because that person does not conform to gender stereotypes such as “appropriate” looks,
speech, personality, or lifestyle is sexual harassment. Harassment because someone is performing
a job that is usually performed, or was performed in the past, mostly by persons of a different sex, is
sex discrimination.
Lesson 2 Quiz: Two Types of Sexual Harassment
1. Scenario: On Monday morning, Tim showed his coworker Julie inappropriate pictures from his
friend’s bachelor party and included details of sexual encounters. This is an example of what form of
sexual harassment?
A.
B.
C.
D.
Sex discrimination
Unwarranted harassment
Hostile environment
Quid pro quo
2. Which of the following is an example of quid pro sexual harassment?
A. Demoting an employee for refusing sexual advances
B. Displaying photo of spouse in swimsuit on desk
C. Promoting employee for good work performance
D. Making jokes about employee’s sexual orientation
3. T/F When evaluating a hostile work environment claim, the court will judge the case based on the
alleged harasser’s intentions.
4. Scenario: A man with long hair is told that he looks feminine because he has put his hair up in a
ponytail. He is able to complain about these comments as sexual harassment.
A. True
B. False
Lesson 3: LIABILITY FOR SEXUAL HARASSMENT
You may be wondering where workplace sexual harassment can occur. Harassment can occur
whenever and wherever employees are fulfilling their work responsibilities, including in the field, at
employer-sponsored events, trainings, conferences open to the public, and office parties. Employee
interactions during non-work hours, such as at a hotel while traveling or at events after work, can
have an impact in the workplace. Locations off site, and off-hour activities, can be considered
extensions of the work environment. Employees can be the target of sexual harassment through
calls, texts, email, and social media. Harassing behavior that in any way affects the work
environment is rightly the concern of management.
Who can be the target of sexual harassment? Sexual harassment can occur between any
individuals, regardless of their sex or gender. California Law protects employees, applicants, paid or
unpaid interns, and non-employees, including independent contractors, and those employed by
companies contracting to provide services in the workplace.
So when you have a case of sexual harassment, who is liable under the law?
Sexual harassment conduct can be demonstrated by a variety of individuals, including supervisors,
co-workers, customers and vendors. The courts will assess the liability for the harassing conduct
and determine the responsible party. In general, every person in the workplace, whether it’s a
supervisor, subordinate, or co-worker, who is found liable for sexual harassment is personally liable
for the damages caused by the unlawful harassment. Getting specific, the liability of the employer is
strictly enforced for unlawful harassment by its supervisors and agents. And the personal liability of
the harasser covers the damages caused by his or her unlawful actions.
Ultimately, just about anyone can be the harasser, including managers and supervisors, Nonmanagers, Customers, Vendors, and Non-employees. Non-employees may include people like
cleaning or landscape crews hired by the building management company, lunch wagon personnel,
or even employees of the businesses in their office building.
Employer Liability for Harassment During Non-Work Hours
Employers are liable for a manager’s sexual harassment of an employee even if off-duty and away
from work. Further, managers who socialize with subordinate employees may see or learn things
about off-duty conduct that place the manager, and the company, at risk.
If a manager sees sexually harassing conduct of one employee by another, and does nothing to stop
it, employees may argue that the manager and, by default, the company, sanctioned the conduct.
Employees could also argue that having a manager present, even after work and off-site, turns a
social event into a company-sponsored event.
An employer can be liable for sexual harassment even when the offensive conduct was not directed
at the person alleging the sexual harassment. Evidence of harassment directed at co-workers can
be used to support an employee's claim of hostile work environment harassment.
For example, lawsuits have been filed where a company knew that a customer was repeatedly
coming onto the premises and harassing a worker, but did nothing to prevent the conduct from
continuing.
Independent Contractors and Sexual Harassment
Employers may want to take specific note of the protections for independent contractors. It is illegal
to harass an independent contractor or individuals “providing services pursuant to a contract” on the
basis of any protected class, such as race, religion, sex or age.
If a hiring entity knew, or should have known, that an employee was harassing an independent
contractor, and does not take immediate and appropriate corrective action, it may be held liable for
the sexual harassment. If a supervisor was engaged in the harassment, the company may be held
strictly liable. A hiring entity must take all reasonable steps to prevent harassment from occurring.
A “person providing services pursuant to a contract” is defined for purposes of FEHA as someone
who meets all of the following criteria:
1. The person has the right to control the performance of the contract requirements and
discretion over the manner of performance.
2. The person is customarily engaged in an independently established business.
3. The person has control over the time and place the work is performed, supplies the tools and
instruments used in the work, and performs work that requires a particular skill not ordinarily
used in the course of the employer’s work.
Professional Relationships and Sexual Harassment
Under California law, sexual harassment can occur in the course of a business, service, or
professional relationship in which a client or customer is sexually harassed. It can also occur when
an individual holds him or herself out as being able to help someone establish a business, service,
or professional relationship, whether with that individual or with a third party.
California's Civil Code specifically lists the following professionals:
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Physician, psychotherapist or dentist;
Attorney, holder of a master's degree in social work, real estate agent, real estate appraiser,
investor, accountant, banker, trust officer, financial planner, loan officer, collection service,
building contractor, or escrow loan officer;
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Executor, trustee, or administrator;
Landlord or property manager;
Teacher;
Elected official;
Lobbyist; and
Director or producer.
It also covers any “relationship that is substantially similar to any of the above.”
Under the professional relationship sexual harassment law, verbal, visual, and physical conduct of a
sexual nature are covered forms of sexual harassment. The victim is not required to ask the
harasser to stop the offensive conduct to be entitled to seek a legal remedy. The law covers
emotional distress injuries, as well as violations of statutory and constitutional rights. Victims of
professional relationship sexual harassment can seek traditional discrimination remedies.
Lesson 3 Quiz: Liability for Sexual Harassment
1. Scenario: Alex was sexually harassed by a client during a business happy hour event at a local
restaurant. Does this constitute workplace harassment?
A.
B.
C.
D.
No, the restaurant is not a worksite
No, the client is not an employee/coworker
Yes, all sexual harassment is workplace harassment
Yes, the sexual harassment took place during a work-related event
2. T/F California law does not protect independent contractors against sexual harassment.
3. T/F Employers are only liable for a manager’s sexual harassment of an employee if it occurs at
the workplace.
4. T/F Under the professional relationship sexual harassment law, the victim is not required to ask
the harasser to stop the offensive conduct in order to seek a legal remedy.
Lesson 4: RETALIATION AND SUPERVISOR’S
RESPONSIBILITY
Retaliation is any action taken to alter an employee’s terms and conditions of employment (such as
a demotion, harmful work schedule, or location change) because that individual engaged in what are
considered to be protected activities. Protected activities with regard to harassment include:
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Making a complaint to a supervisor, manager, or another person designated by your
employer to receive complaints about harassment
Making a report of suspected harassment, even if you are not the target of harassment
Filing a formal complaint about harassment
Opposing discrimination
Assisting another employee who is complaining of harassment, and
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Providing information during a workplace investigation of harassment, or testifying in
connection with a complaint of harassment filed with a government agency or in court
Any employee who has engaged in “protected activity” is protected by law from being retaliated
against. Retaliation can be any such adverse action taken by the employer against the employee
that could have the effect of discouraging a reasonable worker from making a complaint about
harassment or discrimination. The negative action need not be job-related or occur in the workplace,
and may occur after the end of employment, such as an unwarranted negative reference.
Employers must keep in mind the concept of “Constructive Discharge,” which can be created by
intolerable working conditions, such sexual harassment, that could compel a reasonable employee
to quit, whether or not the employer specifically intended to force the employee’s resignation.
Constructive discharge is the basis for a wrongful termination claim.
Be aware as well that retaliation claims can proceed even when the harassment claim fails. An
employee who brings a claim or participates in an investigation is protected, even if the underlying
harassment claim turns out to be meritless. In one case, the Ninth Circuit Court of Appeal dismissed
a female employee’s sexual harassment lawsuit because the conduct was not severe or pervasive,
but permitted the employee’s retaliation claim to proceed after the company president claimed he
was “tired of listening” to her complaints and fired her.
Circumstantial Evidence
There is no requirement that specific, direct evidence conclusively prove that an employee was fired
in retaliation for filing a sexual harassment complaint. Circumstantial evidence, a series of events or
actions taken together, is sufficient to establish employer liability in a claim for retaliatory discharge.
An employee’s termination or demotion occurring close in time to the filing of a harassment
complaint creates an inference of retaliation for exercising his or her legally protected rights. Courts
will look at all of the facts surrounding the employee’s termination or demotion, including
performance reviews and the company’s response to the complaint, to determine whether the
employer acted unlawfully.
It’s important to note that a negative employment action is not retaliatory merely because it occurs
after the employee engages in protected activity. Employees continue to be subject to all job
requirements and disciplinary rules after having engaged in such activity.
The Supervisor's Responsibility
Now let’s talk about the responsibilities that come with being a supervisor. To start, let’s make clear
what we mean when we talk about “supervisors.” A person qualifies as a supervisor for purposes of
the California Fair Employment and Housing Act (FEHA) if they had the discretion and authority:
(a) to hire, transfer, promote, assign, reward, discipline, or discharge other employees, or
effectively recommend any of these actions;
(b) to act on the grievances of other employees or to effectively recommend action on
grievances; or
(c) to direct the claimant’s daily work activities.
So the state law’s definition of supervisor includes not just those with the power to make decisions,
but also those with the authority to make recommendations. It further includes those with the
responsibility for directing employees.
Supervisors and managers are held to a high standard of behavior. This is because:
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They are placed in a position of authority by the employer and must not abuse that authority.
Their actions can create liability for the employer without the employer having any
opportunity to correct the harassment.
They are required to report any harassment that is reported to them, or which they observe.
They are responsible for any harassment or discrimination that they should have known of
with reasonable care and attention to the workplace for which they are accountable.
They are expected to model appropriate workplace behavior.
Managers and supervisors are your first defense against liability for sexual harassment. What they
do, or fail to do, can have serious, costly consequences for both themselves personally and the
company as a whole.
Mandatory Reporting
Supervisors must report any harassment they observe or know of, even if no one is objecting to the
harassment. If a supervisor or manager receives a report of harassment, or is otherwise aware of
harassment, it must be promptly reported to the employer, without exception. Even if the supervisor
or manager thinks the conduct is trivial; even if the harassed individual asks that it not be reported.
Supervisors and managers will be subject to discipline for failing to report suspected sexual
harassment or otherwise knowingly allowing sexual harassment to continue. Supervisors and
managers will also be subject to discipline for engaging in any retaliation.
Lesson 4 Quiz: Retaliation and Supervisor’s
Responsibility
1. T/F An employee is protected against retaliation for making a report of suspected harassment
even if they were not the target.
2. T/F An employee cannot file a retaliation claim if their harassment claim is dismissed in court.
3. T/F Supervisors do not have to report harassment they observe if the harassed individual asks
that it not be reported.
Lesson 5: WHAT SHOULD I DO IF I AM
HARASSED?
We cannot stop harassment in the workplace if it is not brought to the attention of the right people. It
is everyone’s responsibility. You are encouraged to report harassment to a supervisor, manager, or
other person designated by your employer to receive complaints (as outlined in sexual harassment
prevention policy) so the company can take action. Behavior does not need to be a violation of law in
order to be in violation of company policy.
You should report any behavior you experience or know about that is inappropriate, as described in
this training, without worrying about whether or not it is unlawful harassment. Individuals who report
or experience harassment should cooperate with management so a full and fair investigation can be
conducted and any necessary corrective action can be taken. If you believe that you have been
subjected to sexual harassment, you are encouraged to complete an official Complaint Form and
submit it to the designated person or office at your company. Ask your HR Manager or supervisor
who the designated individual is, and obtain their contact information. Follow your company’s policy
for submitting the form.
If you are more comfortable, you may also make reports verbally. In any case, your company is still
required to follow the sexual harassment prevention policy by investigating the claims. Once you
report harassment, the company must follow its sexual harassment prevention policy and investigate
any claims. If you report harassment to a manager or supervisor and receive an inappropriate
response, such as being told to “just ignore it,” you may take your complaint to the next level as we
will discuss later on in this training. Finally, if you are not sure you want to pursue a complaint at the
time of potential harassment, document the incident to ensure it stays fresh in your mind.
What if you witness sexual harassment? Anyone who witnesses or becomes aware of potential
instances of sexual harassment should report it to a supervisor, manager, or designee. It can be
uncomfortable and scary, but it is important to tell coworkers "that's not okay" when you are
uncomfortable about harassment happening in front of you. It is unlawful for an employer to retaliate
against you for reporting suspected sexual harassment or assisting in any investigation.
Investigation and Corrective Action
California requires employers to use qualified personnel to conduct a fair, timely, and thorough
investigation. All parties must receive due process, and the investigation should use the evidence to
reach a reasonable, impartial conclusion.
In accordance with California’s regulations, all complaints should be documented and tracked for
reasonable progress.
Anyone who engages in sexual harassment or retaliation will be subject to remedial and/or
disciplinary action, up to and including termination. The company will investigate all reports of
harassment, whether information was reported in verbal or written form. An investigation of any
complaint should begin immediately and be completed as soon as possible. The investigation will be
kept confidential to the extent possible. Any employee may be required to cooperate as needed in
an investigation of suspected sexual harassment. It is illegal for employees who participate in any
investigation to be retaliated against.
Now let’s go over the investigation process. Every organization also has a duty to take appropriate
steps to ensure that harassment will not occur in the future. Here’s how a claim is investigated:
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A designated person will conduct an immediate review of the allegations, and take any
interim actions, as appropriate
The company will investigate all relevant avenues applicable to the allegations.
Relevant documents, emails, or phone records will be requested, preserved, and obtained.
Thorough interviews will be conducted with the complaining party and any witnesses.
The company will give the accused party a chance to share their perspective of the events.
The investigation is documented as outlined in the sexual harassment policy.
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The company will reach a reasonable and fair conclusion based on the facts.
The individual who complained and the individual(s) accused of sexual harassment are
notified of final determination and that appropriate administrative action has been taken.
It’s important to handle complaints correctly, because a mishandled complaint can actually create a
hostile work environment claim.
Training Requirements
California Senate Bill 1343 requires that all employers of 5 or more employees provide 1 hour of
sexual harassment and abusive conduct prevention training to non-managerial employees within six
months of their assumption of a position. This training must be provided once every two years.
These employers must also provide 2 hours of sexual harassment and abusive conduct prevention
training to managerial employees once every two years.
An employer may designate a “training year” in which it trains some or all of its supervisory
employees and thereafter must again retrain these supervisors by the end of the next “training year,”
two years later.
Training Requirements for Specific Industries or
Individuals
Separate from the statewide mandatory harassment training requirement for employers with five or
more employees, state laws also impose specific requirements on certain groups.
Special harassment prevention training rules apply to farm labor contractors, janitorial employers,
and local elected officials, for example.
Check with your employer if these additional rules apply to you.
California also requires employers to:
1. Provide training even if it is not required by the law. This includes implicit bias training,
interaction with certain groups, and bystander intervention.
2. Employers must also keep training records. And
3. Employers are required to keep materials readily available in multiple formats (such as paper
and online).
Lesson 5 Quiz: What Should I Do If I Am Harassed?
1. T/F Behavior does not need to be a violation of the law in order to be in violation of company
policy.
2. Scenario: Paul overheard his coworker in the break room making jokes about their new male
receptionist being gay. Paul isn’t sure if this constitutes workplace harassment. What should he do?
A.
B.
C.
D.
Wait for his coworker to say something again before reporting it
Report it to a supervisor or manager immediately
Ask other coworkers in the break room their opinion
Immediately tell his coworker his jokes are not appropriate
3. T/F To file a sexual harassment complaint, the employee must complete an official Complaint
Form in writing.
4. California Senate Bill 1343 requires that all employers of 5 or more employees provide sexual
harassment and abusive conduct prevention training once every ______ years.
A.
B.
C.
D.
2
3
4
5
Lesson 6: REVIEWING THE ELEMENTS OF YOUR
COMPANY’S HARASSMENT POLICY
Preventing sexual harassment is best achieved by establishing a zero-tolerance policy. California
law requires employers to have written harassment discrimination and retaliation policies. In this
section, we will review key elements that you can find in your company’s harassment policy.
Definition of harassment: The Company defines harassment in accordance with California’s Fair
Employment and Housing Act and Title VII of the Civil Rights Act of 1964.
Supervisors' responsibilities: Supervisors are expected to immediately address any types of
harassment complaints and report it to the company’s designated representative.
Complaint Procedures: The policy will indicate the individual to whom employees should report
alleged harassment. This is usually the supervisor, or the human resources department. If
employees are to complain to a supervisor, the policy will indicate the person to whom employees
should complain if the alleged harassment has been committed by a supervisor.
The investigation process: The policy will indicate who will conduct the investigation of the alleged
harassment and provide that instances of harassment will be investigated even if no formal
complaint is filed. Also, it will outline the employees’ responsibilities for cooperating with an
investigation
Confidentiality expectation of harassment investigations: Disclosure of information about complaints
should be limited to those with a legitimate involvement. The information about complaints will be
held in confidence to the extent possible, but absolute confidentiality is not guaranteed.
Prevention: Management is responsible for notifying covered individuals of the harassment policy
and its enforcement.
Retaliation: Employees should know that they are protected from retaliation if they file a complaint or
participate in an investigation. Supervisors must ensure clear understanding and enforceability of the
policy.
Contact your company’s designated representative to obtain a copy of the workplace harassment
policy.
Lesson 6 Quiz: Reviewing the Elements of Your
Company’s Harassment Policy
1. T/F California law requires employers to have written harassment discrimination and retaliation
policies.
2. T/F An investigation should only take place if there is a formal complaint filed.
3. T/F Absolute confidentiality about complaints is required under California law.
4. T/F Management is only responsible for notifying individuals after harassment occurs.
Lesson 7: ADDITIONAL PROTECTIONS AND
REMEDIES
In addition to what we’ve already outlined, the law provides for remedies for individuals who
experience prohibited discrimination or harassment in the workplace. These remedies include
hiring, front pay, back pay, promotion, reinstatement, cease-and-desist orders, expert witness
fees, reasonable attorney’s fees and costs, punitive damages, and emotional distress damages.
Department of Fair Employment and Housing (DFEH) and
the Equal Employment Opportunity Commission (EEOC)
You can file a complaint for a violation of the Fair Employment and Housing Act with either the Equal
Employment Opportunity Commission, the EEOC, or the California Department of Fair Employment
and Housing, DFEH. You may file a complaint with DFEH online, by mail, or over the phone. EEOC
enforces federal antidiscrimination laws. Their website has information on filing complaints.
If you file with the EEOC, you have 180 days after the alleged incident, or one year if you file with
DFEH. Please be aware that if you file first with DFEH, you can also file with the EEOC within 300
days of the alleged incident, or within 30 days of receiving notice that DFEH has terminated its
proceeding, whichever comes first. Now, how you measure the 180 days or 1 year is based on the
date of the last incident, and similar, earlier incidents can be included in the claim. Complaints filed
with DFEH or EEOC are automatically cross-filed with the other agency. You only need to submit
one complaint.
You do not need to have an attorney to file. A complaint must be filed with the EEOC before you can
file in federal court.
Local Protections
Many localities enforce laws protecting individuals from sexual harassment and discrimination. You
should contact the county, city or town in which you live to find out if such a law exists. Harassment
may constitute a crime if it involves things like physical touching, coerced physical confinement, or
coerced sex acts. You should also contact the local police department.
Other Types of Workplace Harassment
Workplace harassment can be based on other things, and is not just about gender or inappropriate
sexual behavior in the workplace. Any harassment or discrimination based on a protected
characteristic is prohibited in the workplace and may lead to disciplinary action against the
perpetrator. Protected characteristics include age, race, creed, color, national origin, sexual
orientation, military status, sex, disability, marital status, domestic violence victim status, gender
identity, and criminal history. Much of the information presented in this training applies to all types of
workplace harassment.
Summary
Thank you for completing this important training. All employees should now understand what we
have discussed, including:
•
•
•
•
•
•
How to recognize harassment as inappropriate workplace behavior
The nature of sexual harassment
That harassment because of any protected characteristic is prohibited
The reasons why workplace harassment is employment discrimination
That all harassment should be reported
That supervisors and managers have a special responsibility to report harassment.
With this knowledge, all employees can achieve appropriate workplace behavior, avoid disciplinary
action, know their rights and feel secure that they are entitled to, and can work in, an atmosphere of
respect for all people.
For additional information, visit the websites seen here for the California Department of Fair
Employment and Housing and the Federal Equal Employment Opportunity Commission.
California Department of Fair Employment and Housing – www.dfeh.ca.gov
Federal Equal Employment Opportunity Commission – www.eeoc.gov
Lesson 7 Quiz: Additional Protections and Remedies
1. An employee has _____days to file a complaint with the Equal Employment Opportunity
Commission after the alleged incident.
A.
B.
C.
D.
30
90
120
180
2. T/F In order to file a complaint with the EEOC, an employee must have an attorney present.
3. T/F Workplace harassment is not just about gender or inappropriate sexual behavior.
4. An employee can file a complaint to the DFEH by all the following ways EXCEPT:
A. Online
B. Text
C. Mail
D. Phone
CASE STUDIES: QUID PRO QUO HARASSMENT
Let’s take a look at a few scenarios that help explain the kind of behaviors that can constitute sexual
harassment. We’ll start with situations dealing with possible quid pro quo sexual harassment.
Scenario number one. Ben is the sole proprietor of XYZ Company, and he’s decided to expand and
compete for state contracts. He first hires Jeff, an independent contractor, to install a computer
network, while Annie responds to his ad for a new office manager position.
While Jeff is working on the installation job, Ben threatens to sue Jeff for breach of contract unless
Jeff agrees to engage in sexual activity.
Meanwhile, Ben also tells Annie that the job is hers if she agrees to have sex.
So in this scenario, which of these is true?
A. Jeff cannot sue Ben because he is an independent contractor.
B. Annie cannot sue Ben because XYZ Company has fewer than five employees.
C. Jeff cannot sue Ben because he’s a man.
D. Jeff and Annie can sue Ben for quid pro quo sexual harassment.
E. Jeff can sue Ben for quid pro quo sexual harassment but Annie cannot.
The correct answer in this example is D. Jeff and Annie can both sue Ben for quid pro quo sexual
harassment, even though Jeff is an independent contractor, even though the company has fewer
than five employees, even though Annie does not yet have the job. Both are experiencing quid pro
quo sexual harassment.
Let’s try another scenario.
Lindsay is the Deputy Director of a state agency. She approaches Kristin, an office technician, and
says, “Hi Kristin, I’ve seen you at the gym. You seem to have a great time in Zumba, and you’re so
sexy! I’d love to take you to Tahoe this weekend, just the two of us.”
Kristin is stunned and intimidated by the attention. She responds, “Well, Lindsay, I’m flattered, but
I’m not interested.”
Lindsay answers, “Well, I had to ask. But I get it. I’ll leave you alone.”
Lindsay does not proposition or engage in any unwelcome conduct toward Kristin again. But three
months later, Kristin is late to work for three days, and her supervisor threatens to deny her MSA if
she is late again.
So what about this scenario? Which analysis of this situation is best?
A. Kristin can establish a claim for quid pro quo sexual harassment, because Lindsay never should
have asked a subordinate on a date.
B. Kristin cannot establish a claim for quid pro quo sexual harassment because there is no evidence
that she is a lesbian.
C. Kristin’s claim for quid pro quo sexual harassment is weak, because there is no evidence that
Lindsay was offering job benefits if Kristin said yes, or threatening punishment if Kristin said no.
This situation is a bit different from our previous example, and in this case, the correct answer is C.
The claim for quid pro quo sexual harassment here is weak, because Lindsay was never clearly
offering benefits or threatening punishment based on Kristin’s response.
Quiz: Quid Pro Quo Harassment
1. Scenario: Maria and John are in a consensual sexual relationship. John, Maria’s supervisor, feels like
she is losing interest in the relationship. He confronts her and threatens to fire her if she ends their
relationship.
In this scenario, which is true?
A. Maria can’t establish a claim for quid pro quo sexual harassment, since John is her
supervisor.
B. Maria can’t establish a claim for quid pro quo sexual harassment, since she participated in
consensual sex.
C. Maria can establish a claim for quid pro quo sexual harassment since John threatened her.
D. Maria should quit her job before John fires her.
2. Scenario: Ben is the sole proprietor of XYZ Company. He first hires Jeff, an independent
contractor, to install a computer network, while Annie responds to his ad for a new office manager
position.
While Jeff is working on the installation job, Ben threatens to sue Jeff for breach of contract unless
Jeff agrees to engage in sexual activity. Meanwhile, Ben also tells Annie that the job is hers if she
agrees to have sex. What can Jeff and Annie do?
A.
B.
C.
D.
E.
Jeff cannot sue Ben because he is an independent contractor.
Annie cannot sue Ben because XYZ Company has fewer than five employees.
Jeff cannot sue Ben because he’s a man.
Jeff and Annie can sue Ben for quid pro quo sexual harassment.
Jeff can sue Ben for quid pro quo sexual harassment but Annie cannot
3. You do not have to be employed to report sexual harassment in the workplace.
A. True
B. False
4. Scenario: Lindsay is the Deputy Director of a state agency. She approaches Kristin, an office
technician, and says, “Hi Kristin, I’ve seen you at the gym. You seem to have a great time in Zumba,
and you’re so sexy! I’d love to take you to Tahoe this weekend, just the two of us.” Kristin responds,
“Well, Lindsay, I’m flattered, but I’m not interested.” Lindsay answers, “Well, I had to ask. But I get it.
I’ll leave you alone.” Lindsay does not proposition or engage in any unwelcome conduct toward
Kristin again. But three months later, Kristin is late to work for three days, and her supervisor
threatens to deny her MSA if she is late again. What are Kristin’s options?
A. Kristin can establish a claim for quid pro quo sexual harassment, because Lindsay never
should have asked a subordinate on a date.
B. Kristin cannot establish a claim for quid pro quo sexual harassment because there is no
evidence that she is a lesbian.
C. Kristin’s claim for quid pro quo sexual harassment is weak, because there is no evidence
that Lindsay was offering job benefits if Kristin said yes or threatening punishment if Kristin
said no.
D. All of the above
CASE STUDIES: QUID PRO QUO AND
RETALIATION
The following scenario will explain many aspects of quid pro quo sexual harassment.
Tatiana is hoping for a promotion to a position that she knows will become vacant soon. She knows
that her boss, David, will be involved in deciding who will be promoted. She tells David that she will
be applying for the position, and that she is very interested in receiving the promotion. David says,
“We'll see. There will be a lot of others interested in the position.”
A week later, Tatiana and David travel together for business, including an overnight hotel stay. Over
dinner, David tells Tatiana that he hopes he will be able to promote her, because he has always
really enjoyed working with her. He tells her that some other candidates “look better on paper” but
that she is the one he wants. He tells her that he can “pull some strings” to get her into the job and
Tatiana thanks David. Later David suggests that they go to his hotel room for “drinks and some
relaxation.” Tatiana declines his “offer.”
Question 1. David's behavior could be harassment of Tatiana. True or False?
This is TRUE: David's behavior as Tatiana's boss is inappropriate, and Tatiana should feel free to
report the behavior if it made her uncomfortable. It is irrelevant that this behavior occurs away from
the workplace. Their relationship is that of supervisor and supervisee, and all their interactions will
tend to impact the workplace.
David's behavior, at this point, may or may not constitute quid pro quo harassment; David has made
no threat that if Tatiana refuses his advance he will handle her promotion any differently. However,
his offer to “pull some strings” followed by a request that they go to his hotel room for drinks and
relaxation might be considered potentially coercive. Certainly, if David persists in his advances, even
if he never makes or carries out any threat or promise about job benefits, then this could create a
hostile environment for Tatiana, for which the employer could be strictly liable because David is a
management employee.
Let’s continue this example.
After they return from the trip, Tatiana asks David if he knows when the job will be posted so that
she can apply. He says that he is not sure, but there is still time for her to “make it worth his while” to
pull strings for her. He then asks, “How about going out to dinner this Friday and then coming over to
my place?”
Now for question 2. David engaged in quid pro quo harassment. True or False?
TRUE: It is now evident that David has offered to help Tatiana with her promotion in exchange for
sexual favors.
So let’s keep the story going.
Tatiana, who really wants the position, decides to go out with David. Almost every Friday they go out
at David's insistence and engage in sexual activity. Tatiana does not want to be in a relationship with
David and is only going out with him because she believes that he will otherwise block her
promotion.
Our third question is this: Tatiana cannot complain of harassment, because she voluntarily engaged
in sexual activity with David. True or False?
This is FALSE: Because the sexual activity is unwelcome to Tatiana, she is a victim of sexual
harassment. Equally, if she had refused David's advances, she would still be a victim of sexual
harassment. The offer to Tatiana to trade job benefits for sexual favors by someone with authority
over her in the workplace is quid pro quo sexual harassment, and the employer is exposed to liability
because of its supervisor's actions.
Now, let’s say Tatiana receives the promotion.
So question 4. Tatiana cannot complain of harassment because she got the job, so there is no
discrimination against her. True or False?
The answer is, FALSE: Tatiana can be the recipient of sexual harassment whether or not she
receives the benefit that was used as an inducement.
So let’s conclude our story.
Tatiana breaks off the sexual activities with David. He then gives her a bad evaluation, and she is
removed from her new position at the end of the probationary period and returns to her old job.
Question 5. It is now “too late” for Tatiana to complain. Losing a place of favor due to the breakup of
the voluntary relationship does not create a claim for sexual harassment. True or False?
This statement is FALSE: It is true that the breakup of a relationship, if truly consensual and
welcomed at the time, usually does not create a claim for sexual harassment. However, the
“relationship” in this case was never welcomed by Tatiana. David's behavior has at all times been
inappropriate and a serious violation of the employer’s policy. As the person who abused the power
and authority of a management position, David has engaged in sexual harassment.
Quiz: Case Studies: Quid Pro Quo and Retaliation
1. Y/N If Tatiana had rejected David’s advances and not gotten the promotion, would this still be
considered sexual harassment?
2. David’s bad evaluation of Tatiana is an example of what?
A.
B.
C.
D.
Sex Stereotyping
Hostile Environment
Retaliation
Quid Pro Quo
3. T/F Since Tatiana has decided to go to dinner every Friday with David, this is no longer
considered sexual harassment.
4. T/F Since Tatiana received a promotion due to consensual activity with David, she cannot claim
sexual harassment.
CASE STUDIES: HOSTILE WORK ENVIRONMENT
For these next examples, we’re going to be looking at what goes into a hostile work environment
claim. Here’s our first scenario.
Jennifer starts as a supervisor for the Commission in Yuba County. The other four supervisors and
all the field crews at the Yuba County office are men. Jan, the District Administrator, does not think
women should be field supervisors, and resents that headquarters is “forcing an affirmative action
case” on her office.
Jan tells the other supervisors and crew members that “the field is no place for a woman.” She tells
Jennifer’s crew to “keep an eye on her” and “use your own judgment in the field.” During office
meetings, around the office, and in emails, Jan consistently refers to Jennifer using names like “little
one,” “Wonder Girl,” and “Oprah Jr.”
Jennifer tells Jan that she is undermining her, but Jan tells her to “grow a pair, or you’ll never make it
out there.”
Now let’s consider the possibilities for this scenario. Which of these is most correct?
A. Jan’s use of diminutive nicknames and undermining of Jennifer’s authority is OK, because
Jennifer needs to demonstrate the ability to supervise men in what can be an inherently crude
environment.
B. Jan’s nicknames and statements undermining Jennifer’s authority have created a hostile work
environment.
C. Because Jan has no interest in Jennifer sexually, her hostile behavior is not actionable as sexual
harassment.
In this case, the correct answer is B. Jan’s behavior is creating a hostile work environment. Whether
Jan has interest in Jennifer sexually is irrelevant.
Now let’s keep going with this example a little further.
Anthony, a member of Jennifer’s crew, frequently refuses to follow her orders, saying, “Your boss
told me to use my own judgment.” Anthony and William routinely interrupt team meetings by burping,
talking, and laughing. They insincerely offer “apologies to your ladyship.”
Carlos tells Anthony and William, “Leave my gal alone.” Carlos repeatedly comments on Jennifer’s
appearance, saying things like, “You are the hottest boss I’ve ever had,” and, “Dollface, you can tell
me what to do whenever and wherever you want.” He repeatedly asks her out, even though Jennifer
makes clear that she is happily married.
Jennifer complains about the treatment by her crew. Jan reviews the written complaint but takes no
action.
So what would you say is true about this scenario?
A. Carlos cannot be found liable for hostile work environment sexual harassment, because he is
defending Jennifer.
B. Anthony and William are not liable for sexual harassment because there is no evidence that their
disruptive actions are substantially motivated by Jennifer’s sex. Besides, their actions are neither
severe nor pervasive.
C. The Commission is liable for the sexual harassment of Anthony, William, and Carlos, because
management knew or should have known of their behavior.
In this case, the correct answer is C. The Commission is liable for Anthony, William, and Carlos’s
behavior, because Jan knew or should have known about it after receiving Jennifer’s complaint.
Quiz: Hostile Work Environment
1. Which of the following is not an example of a hostile work environment?
A. A male co-worker repeatedly asking a female co-worker out, even though she has said no
multiple times
B. The use of a diminutive nickname given to a co-worker to undermine their authority
C. Defending a co-worker and shutting down sexual remarks against them
D. Telling an employee to “get over” their problems with a co-worker
2. If an employer tells an employee that it’s ok to undermine their supervisor, they are free to do so.
A. True
B. False
3. Which of the following is not an acceptable excuse for participating in creating a hostile work
environment?
A. The employee is not sexually attracted to someone, so it’s OK to treat them badly
B. There’s no evidence that an employee’s actions are motivated by the person’s sexual
orientation
C. Ignoring a supervisor giving instructions is ok when someone says they’re not that important
D. All of the above
4. If workers in the office collectively bestow an offensive nickname on an employee, it’s acceptable
because everyone in the office is using it.
A. True
B. False
CASE STUDIES: SEXUAL FAVORITISM
Let’s begin our next case studies, more examples of hostile work environment, including conduct
directed at others and sexual favoritism.
Cody is a unit supervisor.
Drew, an office technician, sits in a row of five open workstations right outside Cody’s office.
On Drew’s first day, Cody gives Logan, another office technician, a lingering hug and kiss on the
lips. Cody looks Drew up and down and says, “Welcome to Cody’s World. There’s just one rule:
What Cody wants, Cody gets. If you remember that, you’ll have a bright future here.”
The next day, Logan arrives early to work to be seated before Cody arrives, but Cody starts rubbing
Logan’s shoulders and says, “You can’t stay seated forever.”
Drew sees and hears these interactions.
Logan tells Drew what is happening, and Drew says, “Just get over it.” But Drew starts losing sleep
and misses work because of Cody’s mistreatment of Logan.
Now in this situation, we’re asking about what action Drew is able to take. Which of these is correct?
A. Drew cannot state a claim for hostile work environment, because he told Logan not to complain.
B. Drew has personally witnessed Cody’s harassment of Logan and, therefore, can sue Cody and
the company for sexual harassment due to a hostile work environment.
In this situation, regardless of what Drew told Logan, the correct answer is B. Drew has personally
witnessed Cody’s behavior, and can sue for a hostile work environment.
Now let’s continue this scenario, taking on the issue of sexual favoritism.
Cody and two office technicians, Parker and Rachel, are openly in a sexual relationship. Cody
regularly calls them to the office for “special consultations” where they engage in sexual activities
clearly audible to others in the office.
Cody gives Parker and Rachel preferred shifts, bonuses, and training denied to others. Cody allows
Parker and Rachel to use Drew, Logan, and Timothy, another office technician, to do their work and
run personal errands for them.
Drew, Logan, and Timothy are disgusted, but work together to make sure they excel in all their
assignments.
Now what could happen in this situation? Choose the best answer.
A. Drew, Logan, and Timothy can successfully maintain a claim for sexual harassment/hostile work
environment, widespread sexual favoritism against Parker and Rachel, but not against Cody.
B. Timothy, who has never been harassed by Cody, cannot maintain a successful action for sexual
harassment/hostile work environment, widespread sexual favoritism.
C. Drew, Logan, and Timothy can successfully sue Cody, Parker, Rachel, and the company for
sexual harassment/hostile work environment, widespread sexual favoritism.
In this scenario, the correct answer is C. All three office technicians, Drew, Logan, and Timothy,
could make a successful claim against not only Parker and Rachel, but also Cody and the company
for the widespread sexual favoritism, creating a hostile work environment.
Quiz: Sexual Favoritism
1. Sexual harassment is not happening directly to the employee, even though they’ve seen it happen
to others. Therefore, the employee cannot rightfully sue the company.
A. True
B. False
2. A co-worker has told an employee that they are experiencing sexual harassment. What should the
employee do?
A.
B.
C.
D.
Say nothing. It’s best not to get in the middle of these things.
Tell a company administrator immediately.
Help the co-worker devise a plan for revenge.
Tell the co-worker to just play along. After all, it could lead to greater benefits for them.
3. Which of the following things would lead to a hostile work environment?
A. A unit supervisor giving a bonus because of their hard work
B. Unwanted touching from a co-worker
C. A few co-workers sharing the workload on a big project that they are responsible for
4. If multiple employees, including the supervisor, participate in sexual harassment, only the
supervisor will be held responsible, because they could have stopped any unwarranted sexual
behavior.
A. True
B. False
CASE STUDIES: DENIALS AND LACK OF ACTION
For our next case studies, we’ll look at some examples of what happens in situations involving
denials or lack of action. Here’s our first example.
Sam, a senior supervisor, calls Maggie into his office. He tells her that if she’d like to avoid a bad
review, she must perform a sexual act with him. He grabs her, and pushes her to the ground.
Maggie manages to escape Sam’s grasp and flees.
Jose sees Maggie running out of Sam’s office in distress, and thinks her blouse may have been
partially off. Kate sees Maggie in the restroom crying and fixing a tear in her blouse. Maggie tells
Kate about the attack. Sam abruptly promotes Maggie.
Kate and Jose tell the Equal Employment Opportunity Officer what they saw and heard. But Sam
denies anything happened. Maggie files a complaint with the California Department of Fair
Employment and Housing, alleging quid pro quo sexual harassment.
So what do you think is the correct analysis of this situation?
A. Sam is a senior executive, and no one witnessed the alleged unwelcome conduct, so no one will
believe Maggie.
B. Because Maggie was promoted, she suffered no damages, so there can be no claim for quid pro
quo harassment.
C. A reasonable investigator would conclude, based on circumstantial evidence and credibility
assessments, that quid pro quo sexual harassment did occur.
In this scenario, the correct answer is C, that a reasonable investigator would be able to conclude
that quid pro quo harassment did occur, in spite of Sam’s denials.
Now let’s consider another example, where we include a lack of action by the victim.
ABC Company provides all employees a handbook that details ABC’s “zero tolerance” sexual
harassment policy, and instructs employees to call ABC’s HR Department immediately if they
experience or witness any sexual harassment.
Quinn, an ABC supervisor, walks by Pat’s desk and whispers to Pat that he should “forget” to wear
undergarments the next day. Pat, shocked, pretends not to have heard. From then on, Quinn
whispers similar comments to Pat every opportunity they are alone in the office. Pat does nothing,
thinking that it’s only a matter of time before Quinn, who is an incompetent supervisor, is replaced.
After six months, Quinn is terminated for poor performance, at which point Pat recounts all of
Quinn’s past actions to a senior executive and asks the manager to make sure the next supervisor is
“less disgusting.”
So which of the following is true in this scenario?
A. Pat cannot sue anyone for sexual harassment, because six months have gone by and Pat waited
until Quinn was fired before anything was shared with management.
B. Pat can sue both Quinn and ABC Company, but ABC can try to reduce the amount it must pay by
arguing that the harassment would have stopped if Pat called HR after Quinn’s first comment.
C. Pat can only bring a claim against Quinn. ABC is not liable because Pat chose not to follow the
instructions in the employee handbook.
In this situation, the correct answer is B. Pat can sue both Quinn and ABC Company, but ABC can
try to reduce penalties by arguing Pat should have followed company procedures.
Quiz: Denials and Lack of Action
1. You’ve just heard that a co-worker was sexually assaulted by their supervisor. What should your
next course of action be?
A. Ask if there were any witnesses. After all, if no one else saw it, they can’t really report it.
B. Tell the co-worker to just lay low for a while. It will all work itself out eventually.
C. Report the incident immediately. Even if there were no witnesses present, an allegation like
this should be taken very seriously.
D. Say nothing, and then gossip about the co-worker behind their back.
2. An employee can sue a company because of sexual harassment even after the offender has been
fired.
A. True
B. False
3. Which of the following situations is not eligible to be reported as sexual harassment in the
workplace?
A. A supervisor telling an employee sexual jokes, even after the employee has asked them to
stop
B. An employee is fired after getting in trouble for poor performance. Afterwards, it comes out
that he was sexually harassing several of his co-workers, but it was not told to management
until now.
C. An employee tries to offer sexual favors to a manager in exchange for a promotion or raise.
When confronted, the employee denies the claim.
D. All of the above situations are eligible to be reported as sexual harassment in the workplace.
4. Scenario: A company provides all employees a handbook that details the “zero tolerance” sexual
harassment policy, and instructs employees to call the HR Department immediately if they
experience or witness any sexual harassment. A supervisor walks by an employee’s desk and
whispers sexual innuendos to the employee. The employee ignores these advances. The supervisor
whispers similar comments every opportunity he and the employee are alone in the office. The
employee does nothing. One month later, the supervisor is terminated for poor performance, at
which point the employee recounts the former supervisor’s past actions to a senior executive. What
can the employee do?
A. The employee cannot sue anyone for sexual harassment, because too much time has
passed and he waited until the supervisor was fired before sharing anything with
management.
B. The employee can sue both the supervisor and the company, but the company can try to
reduce the amount it must pay by arguing that the harassment would have stopped if the
employee had followed procedure and contacted HR after the supervisor’s first comment.
C. The employee can only bring a claim again the supervisor. The company is not liable
because the employee chose not to follow the instructions in the employee handbook.
D. None of the above
CASE STUDIES: GENDER IDENTITY
Our next case study involves gender identity and gender expression. Let’s get right into it.
Carl has been a manager at ABC Company for five years. Carl approaches another manager, Terry,
and tells him that she identifies as a transgender woman and is beginning the process of
transitioning at work. From now on, Carl would like to be called Kay, will be wearing clothes
consistent with an identity as a woman, and prefers the use of feminine pronouns.
As the weeks pass, Kay’s coworkers become accustomed to her new name and appearance, but
some of them inadvertently refer to Kay as “Carl” and use the masculine pronoun “he,” especially
when telling stories about things that happened before Kay’s transition. Usually, the coworkers
quickly correct themselves when this happens. Terry, however, pointedly says, “Good morning,
Carl,” when Kay passes by, and makes comments like, “Nice dress, dude.”
Kay, embarrassed, says nothing to Terry or anyone else about these comments for months. What
should Kay do?
A. Kay should keep her head down and try to focus on work. Not everyone is going to be
comfortable with her gender transition, and she should expect some negative comments and
remarks.
B. Kay has a claim for discrimination and harassment because of gender identity and gender
expression against the company because of Terry’s treatment of her, as well as because of her
coworkers’ occasional use of the wrong name and pronoun. Those coworkers should be
reprimanded and notes placed in their files.
C. Kay has a claim against Terry and the company because of Terry’s negative comments and
purposeful, repeated use of the wrong name and pronouns. Her coworkers’ occasional and
accidental mistakes do not create a situation of discrimination or harassment.
In this case, the correct answer is C. Kay has a claim against Terry and the company, but her
coworkers’ mistakes do not rise to the level of discrimination or harassment.
Quiz: Case Studies: Gender Identity
1. Continuing off the example in the case study, now that Kay has transitioned at work wearing
clothes consistent with her identity as a woman, she can now use the women’s restroom facility.
A. True
B. False
2. Since Kay’s transition, she has been reported numerous times for violating company dress code. Her
supervisor has reprimanded her and ask that she make adjustments to properly dress at the workplace,
although she has not worn anything inappropriate. Which of the following is true?
A. Kay should dress more conservatively to make sure everyone else is more comfortable
around her.
B. Kay has a claim against her company since she has complied with the same dress code as a
non-transgender woman and shouldn’t be held to a harsher standard.
C. Kay should go back to wearing the clothes she wore when she was originally hired.
3. Kay’s coworkers unintentionally use the incorrect pronoun and sometimes refer to Kay as “Carl”
when referencing events prior to Kay’s transition. They correct their terminology when these
mistakes happen, but these accounts can also be considered discrimination.
A. True
B. False
4. Kay’s coworker Terry continues to use the pronoun “he” instead of “she,” and deliberately refers to
Kay as “Carl.” This does not constitute a claim of discrimination or harassment because Terry is
correct, as Kay was born male and named Carl.
A. True
B. False
CASE STUDIES: PHYSICAL TOUCHING
Here’s our final case study.
Keisha has noticed that her new boss, Sarah, leans extremely close to her when they are going over
the reports that she prepares. She touches her hand or shoulder frequently as they discuss work.
Keisha tries to move away from her in these situations, but she doesn't seem to get the message.
Question 1. Keisha should just ignore Sarah’s behavior. True or False?
FALSE: If Keisha is uncomfortable with Sarah’s behavior, she has options. If she feels comfortable
doing so, she should tell Sarah to please back off because her closeness and touching make her
uncomfortable. Another option is to complain directly to a person designated by her employer to
receive complaints, who will speak with Sarah. Although this may not be sufficiently severe or
pervasive to create an unlawful harassment situation (unless it was repeated by Sarah after she was
told to stop), there is no reason for Keisha to be uncomfortable in the workplace. There is no valid
reason for Sarah to engage in this behavior.
Back to our example.
Before Keisha gets around to complaining, Sarah brushes up against her back in the conference
room before a meeting. She is now getting really annoyed but still puts off doing anything about it.
Later Sarah “traps” Keisha in her office after they finish discussing work by standing between her
and the door of the small office. Keisha doesn't know what to do, so she moves past her to get out.
As she does so, Sarah runs her hand over Keisha’s breast.
So here’s our next question: Sarah’s brushing up against Keisha in the conference room could just
be inadvertent and does not give Keisha any additional grounds to complain about Sarah. True or
False?
This is FALSE: Sarah is now engaging in a pattern of escalating behavior. Given the pattern of her
“too close” and “touching” behavior, it is unlikely that this was inadvertent. Even before being
“trapped” in Sarah’s office, Keisha should have reported all of the behaviors she had experienced
that had made her uncomfortable.
One last question for this example. Sarah touching Keisha’s breast is inappropriate but is probably
not unlawful harassment because it only happened once. True or False?
The answer is, FALSE: Any type of sexual touching is very serious and does not need to be
repeated to constitute sexual harassment. Keisha should immediately report it without waiting for it
to be repeated. Sarah can expect to receive formal discipline, including possible firing.
Case Studies Quiz: Physical Touching
1. This case study is an example of hostile environment sexual harassment.
A. True
B. False
2. Sarah touching Keisha’s breast just one time could result in firing.
A. True
B. False
3. Keisha feels uncomfortable with Sarah’s advances. What options does she have?
A. Tell Sarah to keep her hands to herself.
B. Report Sarah to a manager, the HR Department, or a designated person to handle these
claims.
C. Both A & B
D. None of the above
4. When Sarah brushed up against Keisha in the conference room, after her earlier behaviors, this
constituted a claim for sexual harassment.
A. True
B. False