workplace behavior, it helps to start out
with some definitions. Sexual assault is
a crime in any context, and employers
have every right to—indeed should—
turn those cases over to the police.
Then there is sexual harassment,
which is where confusion starts
because it has both a popular meaning
and a legal definition.
The legal definition of sexual
harassment is clearer than the popular
definition, but even here the meaning
has changed over time with new
court rulings. It begins with the fact
that the conduct has to be sexual in
nature, and that a “reasonable” person
would be affected negatively by it. If
the individual experiencing it feels
harassed but a neutral observer does
not agree, then it doesn’t meet the
qualifications of sexual harassment.
Also, the behavior must have been
pervasive and severe; a one-time
encounter has to be pretty extreme,
such as a threat or promise of a job in
return for a date, to meet the test.
A workplace can also be considered
“hostile” within the sexual-harassment
law even if no one individual is
responsible for the workplace
environment. Offensive pictures, pranks
and so forth contribute to creating a
hostile work environment only if that
context would affect the mental stability
of a reasonable individual.
Employers are required to prevent
the sexual harassment of their
employees, applicants and, in some
contexts, contractors in their workplace.
Of note, employers should be aware
that men, too, can experience sexual
harassment: The Equal Employment
Opportunity Commission, which
enforces laws on discrimination and
sexual harassment, reports that about 17
percent of complaints brought for ward
about sexual harassment are from men.
While the law requires employers to
remedy sexual harassment, it does not
always make clear what that remedial
action should be. The human resource
department is charged with protecting
the company from the consequences
of violating employment laws, but it is
not an arm of the government, and it
takes its orders from the leaders of the
company. A get-tough approach requires
that employers decide what constitutes
inappropriate sexual behavior at work
and enforce such policies company-wide.
Setting the Standard
Nothing prevents employers from
requiring a higher standard of behavior
than is specified in the law, and most
do. Setting that standard is where
One complication is that dating
at work is an extremely common
practice. A Harris survey conducted
for CareerBuilder last year found that
about a third of respondents had dated
someone at work, and one third of
those individuals reported that it led
to marriage. While it sounds simple
to just prohibit sexually oriented
Getting Tough on
BY PETER CAPPELLI AND
below the legal standard for sexual
harassment. Most of the egregious
behavior we’ve heard about recently
took place at organizations without an
HR department willing to enforce the
law, such as at the Weinstein Co., where
the alleged harasser was running the
company and overriding enforcement,
as was also the case with Uber. There
were also instances where the alleged
harassers were so powerful that
leadership saw them as immune to rules,
as with Bill O’Reilly and Kevin Spacey.
Blanket statements about a
“zero-tolerance” policy toward sexual
harassment sound good, but executing
such a policy is a nightmare without
clear standards regulating what
is prohibited and how that will be
enforced. Here is a guide for employers
that do not have policies in place about
sexual harassment at work, or for those
thinking about changing them.
What is Sexual Harassment?
To make sense of what employers
should be doing about inappropriate
All employers are under pressure now to say what they are doing to address workplace sexual harassment. This topic is thought by many to be the most important story of an already tumultuous year. The issue matters both ethically and practically,
too, as how companies address—or
fail to address—workplace sexual
harassment affects potential
applicants and hiring, customer
perceptions and, of course, employees.
A caveat to this concern is the fact
that some in corporate America have
been very tough on sexual misconduct.
For instance, the CEOs at companies
like Best Buy and HP were forced out
Clear-cut policies to combat sexual misconduct in
the workplace aren’t just a good idea anymore—
they’re essential to a company’s future.