What do you consider harassment? ILKA speaks.

You may have seen an ongoing deluge of information about sexual harassment and sexual assaults in the workplace recently with particular emphasis on key individuals with substantial power such as the film mogul, Harvey Weinstein, and others. These individuals had one thing in common, they utilized their power and authority to either have consensual or nonconsensual sex, unwanted touch, or inappropriate behavior over other's careers.

I have read many posts on Facebook and other social media sites where individuals ask for DNA proof that the incidents occurred. Or that the time limits have expired to file complaints. Yet, is that accurate?

In the military, there has been a push to reduce and end sexual harassment and assault through the Sexual Assault Prevention Response Office (SAPRO) at the Department of Defense and the various services. Yet, the harassment and assaults continues. Utilizing programs such as "Can I Kiss You?" to teach service members to ask for a kiss is fine. Yet, the reality is that in the middle of the night when a man or woman is being sexually assaulted, no one stops to ask "Can I rape you?" The federal government spends tens of millions of dollars on this particular program. This program is based upon a man making money off of the fact that his sister was raped.

As women in business, our daily reality is based upon our interactions within the business community. How we dress, how we speak, and what we say is often more scrutinized than many men in same positions. In the defense industry there is a lower number of women owned small business than male owned small business. Let's face it. Women in the defense industry live in a male dominated world still. Navigating these waters while maintain integrity is a challenge. Sometimes you do not see what is coming when you enter a business relationship.

The reality is that harassment and sexual harassment are a part of the workplace. It is how we define and react to the actions of others that will determine how each person will be able to navigate their industry successfully.

Some ground rules.

In a recent conversation with a great friend of mine, the topic switched to all the recent news relating to sexual harassment and assault. Her key comment as a business owner was related to the fact that the definitions of sexual harassment and assault are all over. The news media seems to have hijacked the definition. She also mentioned that there was a grey area when dealing with clients that related to touch.

So what is sexual harassment: legal definitions?

Title VII of the Civil Rights Act (CRA) of 1964 as amended discusses the legal definition of discrimination based upon race, color, religion, sex, or national origin (42 USC § 2000e-2). There are specific protections for employees who report, or participate in investigations, discrimination.

Title VII of the Civil Rights Act applies to employers with 15 or more employees to include state and local governments, labor organizations, and other firms defined in the law. Sexual harassment is defined as:

"...a form of sex discriminiation that violates Title VII of the CRA of 1964...Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this is conducted explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile or offensive work environment."

Examples of this include a variety of circumstances that may include:

The harasser and victim can be of the same or opposite gender.
The harasser may be the victim's direct or indirect supervisor.
The harasser may be an agent of the employer, a supervisor in another area of the firm, a co-worker, or an external stakeholder that an employee comes into contact with.
The victim does not need to be the actual person harassed. Rather, it could be anyone affected by the offensive conduct.
Sexual harassment can happen without the threat of termination or financial loss.
The conduct of the harasser is unwelcome.

This may lead to something known as quid pro quo sexual harassment where an employee is required to tolerate the harassment in order to obtain or retain employment, a salary increase, job benefit, or promotion.

Hostile work environment is often the end result of this type of behavior. Hostile work environment is when one's behavior in a work environment creates a work environment that is difficult to navigate and uncomfortable. Examples include ongoing unwanted touch such as fondling, sexually suggestive photos displayed in the workplace, off colored jokes, and sexual language. Isolated includes do not rise to the level of being illegal.

The creation of a hostile work environment includes things that would be offensive, intimidating, or hostile to a reasonable person. Management personnel can create a hostile work environment when they act in such a way to make an employee quit in retaliation for some action. For example, a marketing specialist reports a manager for potential favoritism towards a particular vendor; management may choose to harass the employee until they quit.

How to prove harassment in the workplace.

The burden of proof is determined case by case with a focus upon working conditions. The burden of proof often falls upon the accuser to prove that the situation is actionable based upon the entire situation to determine that the person's employment was impacted or an abusive work environment existed. Ultimately, it falls on the employee to prove the situation. Not disheartening; rather, simply keep all the texts, emails, and photographs sent by the harasser.

Some common sense rules of the road.

Often business owners and corporate executives have clients and employees who are huggers, like touch, etc. Yet, the management of these interactions is critical to the success of the organization. ILKA has designed some simple rules of the road in personal interactions and business. These are:

1. Use a handshake as your first rule of thumb to convey appropriate touch and relationship boundaries.

2. It is about the sense of safety of those you interact with and your safety also.

3. If it feels uncomfortable; don't do it.

4. If you have an urge to hug someone or slap them on the back - count to ten and the urge will most likely disappear.

5. If you are in an emotional setting and want to hug someone and the urge did not disappear; ASK first. If the answer is no; back away and say okay.

6. If the person agrees to the hug do it in public. Side hugs are the safest.

7. If you want to say something that is vulgar or inappropriate - count to ten and rephrase the statement in an appropriate tone and context that is lacking in sexual or harassing overtones. If you cannot contain yourself; then just do not say "it".

8. If you are a supervisor in a firm - you do not date subordinates EVER.

9. If you choose to date a subordinate in the firm, expect that if there are no other positions in the firm, one of you will need to leave.

10. If you violate the rules; expect to get fired.

11. If you experience sexual harassment, hostile work environment, or sexual assault - REPORT to the firm the issues using a confidential reporting process.

12. If the firm does not take action - contact a lawyer or the police based upon the issue.

13. As an employee, never be the only employee in the building - safety first.

14. If you witness something inappropriate report it.

15. Never have sex with a co-worker unless you are in a relationship, engaged, or married (management should be informed).

16. Never have sex in the workplace.

17. If you experience inappropriate behavior by key stakeholders; report to your management and the stakeholder's management the incident. Remember, even the CEO has someone to answer to.

Self-esteem and coercion.

Under federal law, coercion is defined as a "duress crime". This means that when a supervisor initiates a sexual relationship and the person agrees for fear of loss of employment the relationship can be viewed as a potential "duress crime". The person may engage in the sexual relationship; yet, they are only there to save their jobs or get a promotion. If this is you; report it to the proper authority in your firm or the police as appropriate.

Some employees will act in these situations on their own and begin the relationship with the supervisor or person above them in the hopes of recognition of their work or capabilities. Sometimes this type of behavior backfires as the person gets a reputation of "sleeping to the top" in order to get promotions and job opportunities. It is when something actually occurs to this individual that their reputation may hinder or delay the resolution of a harassment claim. It can sometimes be about perception unfortunately.

The corporate overview.

If you do not have corporate policies in place relating to sexual harassment in the workplace; create them. Once you have the policies in place, require employees to sign and agree to the policies. Finally, have annual sexual harassment prevention training that addresses current issues in the workplace. Have a policy that encourages anonymous reporting with the means to investigate the issue using outside investigators as appropriate. Employees identities should be protected. Firms that are involved in federal contracting, have special requirements to fulfill under Title VII.

The key to the issue is simple.

The simple key to all of this is for employees to conduct themselves professionally not like they are still in college at the frat house. If someone asks you to have sex - say no. If someone kisses you or touches you without your permission - say no. If someone makes an inappropriate comment - say no. If someone tells you "I know you want it" - stand your ground - say no. Once you say "no" you then have legal grounds to act upon if the action or behavior occurs again. Document all actions via email, text, or other means.

Report all unwanted contact to your firm and, if appropriate, the police. The law is on your side.

For more information or corporate training, please contact ILKA Technologies, Inc. through our contact page at ilka-technologies.com.