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Kate Fila

Professor Dawson

Human Resource Management

3 October 2020

Sexual Harassment: What is the role of HR?

It is imperative to understand that the human resource department of an organization acts

as the first line of defense against allegations of sexual harassment, rather than a separate entity

that assumes full responsibility and exerts complete control. Human resource professionals have

an obligation to promote and nurture a safe and inclusive work culture, to provide accessible

resources, to implement training procedures as a proactive measure, and to respond to allegations

and filed claims in a timely and efficient manner. Various laws, social movements, court

decisions, and publicized allegations against powerful entities explicate the important role human

resource departments play in preventing and responding to sexual harassment in the workplace.

In 1964, President Lyndon Johnson signed into law the Civil Rights Act which prohibits

employers from discriminating against individuals on the basis of race, color, religion, sex, or

national origin. This law, however, initially failed to clearly define what constitutes

discrimination and how employees were expected to act. Human resource professionals then

began implementing anti-discrimination policies, complaint procedures, affirmative-action

officer positions, complaint procedures, and other structure as mechanisms for compliance with

civil rights law (Edelman 2018). Once sexual harassment became a widely known issue in the

workplace, organizations decided to follow the practices that were proven successful in

compliance with civil rights law. In a 1981 article in Personnel Journal, the author wrote:
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If the employer has no knowledge of the harassment, liability may be avoided if two

conditions have been met: (1) The employer has a policy discouraging sexual harassment,

and the employee failed to use an existing grievance procedure and (2) the sexually

harassing situations are rectified as soon as the employer becomes aware of them.

(Edelman 2018).

Although this was not accepted as law at the time, it did foreshadow later legal developments. In

the 1986 case of Meritor v. Vinson, the Supreme Court formally recognized sexual harassment as

a form of sex discrimination. While the court found the employer’s anti-harassment policy and

complaint procedure ineffective, it indicated that an effective procedure might protect the

employer from liability. This decision resulted in arguments from various employers demanding

that they should not be held liable for harassment if they had an anti-harassment policy and

complaint procedure in place. Then, in 1998, the Supreme Court addressed the problems

surrounding anti-harassment policies and complaint procedures in the cases of Faragher v. City

of Boca Raton and Burlington v. Ellerth, which was met by arguments from the Society for

Human Resource Management. SHRM proposed that employers should be afforded legal

protection if anti-harassment policies were enforced and urged that employers were better

equipped than courts to address sexual harassment. In the case of Faragher v. City of Boca

Raton, the Equal Employment Opportunity Commission (EEOC) distinguished between two

types of harassment: quid pro quo and hostile work environment harassment. Quid pro quo refers

to a situation in which a supervisor exchanges benefits for sexual favors, while hostile work

environment harassment refers to a situation in which employees are subjected to unwelcome

sexual advances or commentary. The EEOC suggested that “antiharassment policies and

complaint procedures should be a defense to allegations of sexual harassment in hostile work

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environment harassment only” (Edelman 2018). Taking into account arguments of SHRM and

EEOC, the Supreme Court created the Faragher-Ellerth affirmative defense, which almost

mirrors the 1981 Personnel article. It provided that employers can avoid liability if they are able

to prove:

a) That the employer exercised reasonable care to prevent and correct promptly any

sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to

take advantage of any preventive or corrective opportunities provided by the employer or

to avoid harm otherwise. (Edelman 2018)

The Supreme Court also claimed that any policy that prohibits sexual harassment and a

complaint procedure “would satisfy the first prong of the affirmative defense…and so having a

policy became a proxy for companies actually doing something to prevent sexual harassment.”

Therefore, policies are only effective to the extent to which organizations enforce them, and

human resource professionals have a duty to provide resources to employees and implement

effective procedures to curtail sexual harassment from occurring.

Title VII of the Civil Rights Act of 1964 makes it illegal for employers to allow anyone

to be sexually harassed at work, regardless of sex, gender or sexual orientation (Sexual

Harassment). It also makes it illegal for employers to allow harassment to occur or to fail to stop

it once they have knowledge of it happening. The EEOC defines sexual harassment as unwanted

touching, inappropriate comments, promises in exchange for sexual favors, teasing, intimidating,

offensive commentary, sexual gestures, and various other behaviors. Employees, managers, and

human resource professionals have an obligation to investigate any claims of sexual harassment,

and if they fail to do so, the complainant should consider taking legal action.
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An organization’s human resource department should follow several crucial steps when

implementing a sexual harassment policy. First, HR should establish a written policy that

prohibits harassment. This written policy should then be distributed to every employee in the

organization, included in the employee handbook, and posted in common areas with high

visualization. Next, the organization must ensure that the policy includes the correct and

applicable provisions. According to Employment Law Firms, the policy should include language

that states that sexual harassment will not be tolerated, defined and provides examples of sexual

harassment, outlines a grievance and complaint procedure, provides avenues for an employee to

report sexual harassment so that the employee can bypass her supervisor, assures confidentiality,

guarantees that retaliation will not result, state that any employee who engages in unwelcome

sexual conduct is subject to discipline and requires supervisors to immediately report any

suspected sexual conduct. The department must then communicate the policy and train

employees accordingly. HR needs to educate employees on what constitutes harassment, how to

recognize harassment, and how to take appropriate action. In order to be the most effective, HR

should communicate these policies on a regular basis and follow up with employees after

training. A vital component of the sexual harassment policy is ensuring that it contains an

effective complaint procedure. A complaint procedure should encourage employees to come

forward with allegations of sexual harassment, and it should include several people to who an

employee can bring forth a complaint in the case that the accused harasser is an individual’s

supervisor. The people to whom an employee can bring an initial complaint should be a mix of

males and females, so that the complainant may feel more comfortable reporting the conduct.

Both managers and supervisors should take every complaint of sexual harassment seriously, and

they should immediately report the complaint to the department of human resources.
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The SHRM provides that “managers and supervisors must deal expeditiously and fairly

when they have knowledge of sexual harassment within their departments, whether or not there

has been a written or formal complaint. Their duties include taking all complaints and concerns

of harassment seriously, report all incidents to human resources immediately so an investigation

can begin, and take any appropriate action to prevent retaliation from recurring during and after

any investigation or complaints.

SHRM also hold human resource directors responsible for ensuring both the complainant

and the respondent are aware of the seriousness of the complaint, explaining the sexual

harassment policy and investigation procedures, exploring informal means of resolving

complaints, notifying police if criminal activities are alleged, arranging for an investigation and

the preparation of a written report, submitting a written report, and notifying the parties of the

actions to be taken and administering those actions. So, while human resources play a large role

in the issue of sexual harassment, managers, supervisors, and other employees also have an

obligation to curtail the occurrence of sexual harassment. Human resources must implement

effective practices, policies, and procedures and actively enforce these structures, while the latter

simultaneously devotes themselves to adhering to these rules and documenting any suspicions.

Simply creating and updating anti-harassment policies fails to combat this recurring workplace

grievance.

In 2006, survivor and activist Tarana Burke founded the “Me Too” movement. Burke

developed her vision to “bring resources, support, and pathways to healing where none existed

before. And [she] got to work building a community of advocates determined to interrupt sexual

violence where it happens” (Burke, T.) Eleven years later, the hashtag #MeToo went viral, and

the stories shared through this hashtag explicated the harsh, morose realties of sexual
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harassment. These stories consequently enabled other individuals to speak to their experiences

and demand change. According to sexual harassment claims received by the EEOC, more than

7,500 claims were filed in 2018, which was a fourteen percent increase from 2017. The #MeToo

movement is irrefutably empowering more individuals to speak out against the discrimination

and harassment they have experienced.

Researchers Stefanie K. Johnson, Ksenia Keplinger, Jessica F. Kirk, and Liza Barnes

conducted a research study to examine the effects of the #MeToo movement in the workplace.

In 2016, prior to the movement, researchers surveyed 250 employed women and questioned

them about the pervasiveness of sexual harassment and how it impacts their abilities to succeed

in a professional environment. Researchers also interviewed 31 women about their individual

experience (Johnson et al., 2019). After the movement gained increasing popularity, researchers

then conducted a second survey of 262 women, and they reconnected with a number of women

who were previously interviewed. They measured sexual harassment along three dimensions:

gender harassment, unwanted sexual attention, and sexual coercion. According to their research,

in 2016, “25% of women reported being sexually coerced, and in 2018 that number had declined

to 16%. Unwanted sexual attention declined from 66% of women to 25%,” however, the

researchers “noticed an increase in reports of gender harassment, from 76% of women in 2016 to

92% in 2018” (Johnson et al., 2019). From this study, they concluded that while blatant sexual

harassment may be declining, hostility towards women is increasing. These statistics may

provide qualitative information, but they fail to disclose the different variables that led to these

outcomes.

According to Harvard Business Review, research suggests that as few as 25% of women

who experience harassment use an internal company complaint procedure or file a complaint
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with the EEOC, despite organizations creating and updating anti-harassment policies, training

programs, and procedures in response to the #MeToo movement. The 2000 court case of

Leopald v. Baccaract, Inc. provides the reasoning behind an individual’s failure to file a

complaint. Andree Leopald was a saleswoman who sued her employer after receiving various

threats from her supervisor. Her supervisor threatened to replace her with someone “young and

sexy,” and she also used vulgar and dismissive language towards Leopald. Baccarat Inc. argued

that Leopald failed to use the complaint procedure that was in place and referenced their policy

against sexual harassment. Leopald responded and explained her defense: “Leopald claimed that

she did not use the complaint procedure because it would have required her to report the

harassment to her immediate supervisor—the person she was accusing of harassment” (Edelman

2018). Also, Baccarat Inc.’s policy lacked any guarantee that she would be protected from

retaliation. Ultimately, the court ruled in favor of Baccarat Inc. The case of Leopald v. Baccarat

Inc. is a model example of how the implementation of anti-harassment policies does not equate

justice or protection. Human resources must proactively provide resources and services to

combat sexual harassment.

While protections against sexual harassment have been in place for many years, the

#MeToo movement has resulted in organizations focusing beyond policies and procedures. A

2016 EEOC report recommends increasing the representation of women and people of color at

all levels of management and becoming aware of factors that may increase the chance of

harassment, such as power disparities, isolated workplaces, a tolerance for alcohol, and

prominent employees who believe that the rules do not apply to them. Furthermore, the EEOC

proposes that the culture of a workplace has an enormous impact on the prevalence of

harassment. It suggests that “harassment is less likely when leaders make clear that they have a
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strong commitment to a culture of inclusion and respect for all employees, and when they hold

managers and employees accountable for harassment in a fair manner” (Edelman 2018). Human

resource professionals must also recognize the obstacles that prevent survivors of sexual

harassment from using complaint procedures. As previously stated, the case of Leopald v.

Baccarat Inc. provides an example of a variable that inhibits people from filing complaints.

Human resources should “oversee the complaint process, make it as easy as possible for

employees to report harassment, protect complainants from retaliation, respond to complains

seriously and swiftly, and take decisive action to sanction harassers” (Edelman 2018). They

should also conduct confidential surveys of employees in order to gain insight into the realities

that employees face in the company. Moreover, these surveys are only effective if human

resources commit to making changes and improvements based on the survey feedback.

Even when seemingly effective policies are in place, many women and men fail to report

harassment because of their fear of retaliation and gender harassment. In 2017, Matt Lauer, a

powerful and respected news anchor, was fired from NBC after twenty-five years when four

women came forward and filed allegations of sexual harassment against him. The NBC internal

report states:

All four women who came forward confirmed that they did not tell their direct manager

or anyone else in a position of authority about their sexual encounters with Lauer…

Though the report says the investigation found credible evidence that leadership were not

made aware of Lauer’s behavior, a footnote noted that one of the four complainants did

tell her manager about an interaction with Lauer ‘in or around 1996’. (Gold 2018)

However, the manager argued that she could not recall reporting the interaction to anyone else.

Two of the four complainants believed that NBC News or Today Show leadership “must have
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known about [his] alleged inappropriate sexual behavior in the workplace” but the investigation

team was unable to verify that claim. Today Show anchor Ann Curry also publicly stated that a

woman complained to her about Lauer’s behavior, and despite informing management of her

concern, she did not disclose to management that she had received a specific complaint; no

individual reported or investigated the matter. This situation suggests how policies and

procedures can be made, but no change will occur unless these are strictly enforced. The

manager involved in the 1996 interaction had a duty to report Lauer’s inappropriate conduct, but

she failed to do so, which led to years of abuse at the hand of Matt Lauer. The report states,

“Though employees were aware of official company channels through which to raise workplace

issues, a number of them said they feared retaliation and that their complaints would not be

confidential—partly because the HR division sat in ‘glass-walled’ offices among other News

division employees” (Gold 2018). Human resources should provide outlets that ensure

confidentiality and ease concerns about retaliation. If the NBC human resource department had

provided employees with these outlets, the women involved may have felt more confident in

reporting the harassment. The manager of the 1996 incident was in direct violation of Title VII,

which makes it illegal for employers to allow harassment to occur or to fail to stop it once they

have knowledge of it happening. Furthermore, every individual who has suspicions of Lauer and

failed to investigate those incidents also violated this section of the Act.

According to Namely’s HR Careers Report, seventy-one percent of human resource

professions are female. In theory, this statistic would suggest that complaints filed with human

resources should elicit a quick response and appropriate action because it could be assumed that

women have a vested interest in resolving an issue that directly impacts them. However, the

increasing gender hostility in the workplace affects these women to the same extent and directly
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inhibits the power and influence they have. Seasoned HR director Callie (name changed) shared

that “she once investigated a sexual harassment complaint and the higher-ups failed to follow her

recommendations. A vice president made sexually explicit comments to members of the sales

team, and Callie found those allegations to be true” (Ruettimann 2019). She then recommended

terminating the vice president, but her CEO “felt it would be easier to recruit and replace rank-

and-file workers” (Ruettimann 2019). She continued explaining how the higher-ups made

excuses for the vice president and cited that they did not want to fire him over his choice of

words. When asked about her complicity in the matter, Callie argued that she needed a job that

provided steady income in order to provide for her family, and she could not forfeit financial

security out of principle. Despite following HR procedures and investigating claims, Callie’s

power as a human resource director became insignificant when compared to the higher-up

executives. Callie’s experience provides evidence that human resource professionals only have

so much influence on an organization. Human resources can explicitly adhere to an

organization’s policies, procedures, and practices and still fail to successfully combat sexual

harassment in the workplace. An organization’s human resource department can only do so much

in preventing harassment when the majority of human resource professions are personally

affected by sexual harassment and gender hostility.

Human resource professionals should continuously create, modify, and spread knowledge

of anti-harassment policies and procedures, while simultaneously taking appropriate actions to

foster a safe and multidimensional workplace environment. They should not only create and

implement these policies but also actively monitor the effectiveness and make adjustments as

needed. Preventing sexual harassment is a systemic obligation, and human resources can only

contribute to an extent.
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Works Cited
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Burke, T. (2020, July 16). Get To Know Us: History & Inception. Retrieved October 02, 2020,

from https://metoomvmt.org/get-to-know-us/history-inception/

Edelman, L. B. (2018, August 22). How HR and Judges Made It Almost Impossible for Victims

of Sexual Harassment to Win in Court. Retrieved October 02, 2020, from

https://hbr.org/2018/08/how-hr-and-judges-made-it-almost-impossible-for-victims-of-

sexual-harassment-to-win-in-court

Gold, H. (2018, May 9). NBC internal report: Leadership did not know about Matt Lauer

behavior. Retrieved October 02, 2020, from

https://money.cnn.com/2018/05/09/media/nbc-matt-lauer-internal-report/index.html

Johnson, S. K., Keplinger, K., Kirk, J. F., & Barnes, L. (2019, July 18). Has Sexual Harassment

at Work Decreased Since #MeToo? Retrieved October 02, 2020, from

https://hbr.org/2019/07/has-sexual-harassment-at-work-decreased-since-metoo

Murad, K. (2020, February 17). Sexual Harassment in the Workplace. Retrieved October 02,

2020, from https://www.ncsl.org/research/labor-and-employment/sexual-harassment-in-

the-workplace.aspx

Nolo. (2014, September 16). How to Effectively Implement a Sexual Harassment Policy.

Retrieved October 02, 2020, from

https://www.employmentlawfirms.com/resources/employment/workplace-safety-and-

health/implement-sexual-harassment-policy.htm

Ruettimann, L. (2019, October 03). Why HR is powerless to effectively handle sexual

harassment claims. Retrieved October 02, 2020, from https://www.vox.com/first-

person/2019/10/3/20887020/me-too-sexual-harassment-movement-boss-reporting-hr
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Sexual Harassment Policy and Complaint/Investigation Procedure. (2019, August 16). Retrieved

October 02, 2020, from https://www.shrm.org/resourcesandtools/tools-and-

samples/policies/pages/cms_000554.aspx

Sexual Harassment. (2020, September 03). Retrieved October 02, 2020, from

https://www.equalrights.org/issue/economic-workplace-equality/sexual-harassment/