According to language originally set forth in 1980 by the EEOC under Title VII of the Civil Rights Act of 1964, not only the sexual behavior is at issue in identifying what constitutes sexual harassment, but also the intent behind the behavior. Also at issue is the connection between the behavior and the working circumstances and conditions of the person who's being harassed.  It's really about power and abuse of power in the workplace.

In its definition of sexual harassment, the EEOC labels the behavior as follows: "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." But the law adds some fine print that muddies the waters. It lists three situations in which these unwelcome advances and so on need to occur for the behavior to fit the legal definition of "sexual harassment." 

• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment.

• Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals.

• Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

You don't have to be a linguistic scholar to figure out that these guidelines are loaded with terms that are highly dependent on perceptions and interpretations. And that's one of the chief problems that arise when harassment complaints are filed. People (courts included) have varying ideas of what is "implicit" and different perceptions about what factors make a workplace "intimidating" or "hostile."

Guidelines for Developing an Effective Sexual Harassment Policy

Spread The Word: It's no longer enough to simply declare in writing your company's commitment to prevent sexual harassment. You need a written policy that spells out a clear-cut definition of sexual harassment, and need to spell out, in no uncertain terms, the penalties for flouting the policy, innocently or otherwise.

The company is also responsible for making sure that everyone in the organization, supervisors, managers, and employees recognizes that sexual harassment is wrong and will not be tolerated in the workplace. How you communicate this policy (by classes, video, literature, EMCENTRIX Internet training etc...) is up to you, but just do it.

Create a Reporting Process: Employees are not required by law to report sexual harassment to their employer before going to the EEOC or to court. You should, however, encourage employees to report internally so the company can take care of any problems without "help" from the government. Identify several different sources for employees to use to report harassment, such as their supervisor, and HR representative, and the CEO.

Treat All Complaints About Sexual Harassment Seriously: Regardless of how frivolous you may consider a sexual harassment complaint, you must take it seriously and, at the very least, look into the charge. If an incident ultimately spirals into a court case, and the act comes out in testimony that management was aware of the complaint but didn't act on it, you may have to pay more in damages because of your negligence.

Take Decisive Action: Once you have established that sexual harassment is taking place, your company must investigate and take any reasonable action that will end it and prevent it from happening again. The value of the employee's work doesn't matter. Doing nothing or being too lenient can put your firm at great risk and, at the very least, create the impression that you're condoning the behavior. This impression won't do much to help your company recruit or retain good employees and will expose the company to increased monetary damages.

Document Every Complaint: Every sexual harassment complaint, no matter how trivial it may seem and how quickly or easily it is resolved, should be documented. Don't view paperwork as a burden. It can be your company's best defense. Documentation of discipline demonstrates that your company is serious about the problem and the solution. Getting detailed statements from the person making the harassment charges as well as from the accused is paramount.

Contact Legal for more guidance if necessary