Everyone Deserves a Safe Workplace: Identifying Sexual Harassment

A Q&A with North Dakota United Legal Counsel Michael J. Geiermann

What should I do if I believe I’m the victim of sexual harassment?

If you believe you are a victim of sexual harassment or believe a coworker is a victim of sexual harassment, call North Dakota United: 701-223-0450.

What are the origins of laws prohibiting sexual harassment?

There are both federal laws and state laws that deal with this issue. The main federal law is referred to as Title 7 of the Civil Rights Act. Section 703 provides as follows: “It shall be an unlawful employment practice for an employer - (1) To fail or refuse to hire or discharge an individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin...”

Title 9 of the 1972 Education Amendments to the Civil Rights Act also applies. Title 9 may be familiar because it was the federal law that

ensures equal opportunities for boys and girls, men and women, in athletics. Title 9 for our purpose only deals with discrimination which is brought by students against school districts when it involves sexual harassment.

Another law that deals with prohibition of sexual harassment in the workplace is the North Dakota Human Rights Act. NDCC 14-02.4-03. Like title 7 of the Civil Rights Act, this section of the North Dakota Human Rights Act prohibits discrimination in the workplace based on sex.

What is sexual harassment?

Harassment on the basis of sex is a violation of Section 703 Title 7. Unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment. A good resource for more information on sexual harassment: EEOC website, www.eeoc.gov.

Types of Sexual Harassment

Quid pro quo

A quid pro quo means if I give you something, you’ll give me something in return. Quid pro quo harassment occurs when a victim’s continued employment or advancement is based upon the provision of sexual favors.

Hostile Work Environment

The harassment still must involve discrimination based upon your gender. But the harassment does not

How to determine if you’re experiencing a hostile work environment:

- Is the conduct related to your gender? - Is the conduct directed your way unwelcome? - Is the conduct pervasive? (It means it happens a lot, not every day, but a lot.) - Is the conduct severe? - Has the conduct been so unwelcome, pervasive, and severe that you have altered your employment, don’t want to go to work anymore, or are avoiding certain people in your office because they treat you a certain way? - Do they just treat you like this or do they treat everybody like this?

have to involve sex, sexual desire, or sexual favors. Sexual harassment, for a lack of a better term, is based upon power or authority.

The conduct is actionable if the behavior is unusually severe or pervasive to alter the conditions of a victim’s employment and to create an abusive working environment.

The correct inquiry in regard to a hostile work environment is whether the victim by their conduct indicated that the alleged sexual advances were unwelcome, not whether their actual participation in intercourse was voluntary. Most of the time the victim will tell the person to stop, but the law doesn’t require you to tell the harasser to stop.

Who commits sexual harassment?

Courts have ruled that sexual harassment is not just made by males against female victims. Actionable sexual harassment claims may be made against anyone who meets the above criteria, regardless of the gender or sexual identity of either the harasser or victim.

What if I’m not sure whether I’m a victim of sexual harassment?

When in doubt, pick up the phone, call NDU or your field representative. Tell them what’s going on in your workplace. You don’t’ need to endure this. We will try to assist you in every way we can to rectify the situation.