Have you accused a colleague of sexual misconduct in the workplace? Or maybe someone in the office has gone to your boss and told her you were sexually harassing them? You might have to take a lie detector test to prove your side of the allegation.
Sexual harassment is a serious problem in the workplace. According to the EEOC, the results of a 2016 study show approximately 75% of people that experience sexual harassment in the workplace don’t bring the matter up to their boss, manager, or union representative.
The study shows that those employees who choose not to mention it do so because they fear retaliation from the other party at work. Another possibility for the failure to report the problem is that these individuals don’t have any idea about what qualifies as sexual harassment.
The #MeToo movement showed us that sexual harassment is not new in the workplace, with several high-profile cases involving the top ranks of society, including movie producers and even lawmakers engaging in the practice.
When people think of sexual harassment, they might consider outrageous sexual advances made by colleagues on each other. However, the reality is that harassment can occur in subtle forms. Sometimes something as blatant as getting slapped on the behind by a colleague as they walk past you isn’t the only form of harassment.
It could be something as innocuous as receiving late-night texts from someone at the office, invitations to sales meetings outside the office that somehow turns into a date, or unwanted sexually-charged comments.
In today’s digital environment, sexual harassment isn’t only a verbal engagement between people; it can occur through social media, text messages, emails, and other venues outside the office. This post looks into the types of sexual harassment and how your employer might institute a polygraph policy at work to get to the bottom of matters and prevent them from occurring.
What Is Workplace Sexual Harassment?
Title VII of the Civil Rights Act defines sexual harassment as an illegal practice inside and outside the office. Title VII applies to companies with 15 or more employees, outlining two types of unlawful sexual harassment.
The first is “Quid Pro Quo” sexual harassment. In this case, a supervisor at work or your boss might ask you for sexual favors. If you comply, they promise you a promotion or related action that advances your career. If you reject them, they might threaten to demote or fire you.
A hostile work environment involves subjecting an employee to unwelcome verbal or physical sexual conduct that alters the employee’s work experience and conditions or creates an abusive relationship for them in the workplace.
It’s fairly straightforward to define a quid pro quo sexual harassment case, but proving a hostile work environment can be much more challenging for the employee. So, what kind of behavior in the workplace constitutes sexual harassment?
What are the Types of Workplace Sexual Misconduct?
Some conduct in the workplace clearly qualifies as sexual harassment. For instance, unwanted touching of private areas like the breasts or genitals, kissing, and smacking the rear end. However, other forms are less obvious and more psychological than physical, such as making sexually explicit remarks, requesting sexual favors, sexually suggestive gestures, uninvited messages, ogling, catcalling, or cornering someone.
Overt forms of sexual harassment are the most common forms of the behavior, but instances of subtle advances are becoming more prevalent. We can consider any of the following as sexual harassment if they occur frequently or become severe enough to make the employee feel intimidates, uncomfortable, or distracts them from their productivity at work.
- Repeated compliments on the employee’s physical appearance.
- Commenting on an employee’s attractiveness in front of colleagues.
- Discussing sex life or sexual actions in front of other employees.
- Circulating images of nude men or women or porn in the workplace.
- Making jokes with sexual innuendos.
- Leaving an employee an unwanted gift.
- Sending sexually suggestive emails or texts.
- Spreading rumors of a sexual nature about other employees.
- Repeated unwanted touching or hugs.
Employee conduct must be offensive to the employee and under reasonable circumstances that other people might find offensive to meet the criteria necessary to prove a hostile work environment.
For instance, a female employee might find it offensive that a male employee complimented her on her new haircut and opened the door from them as they left the office. However, the average person might not consider that sexual harassment, but rather more as the colleague being friendly or pleasant.
An Example of Sexual Misconduct in the Workplace
Kim is an executive assistant to the regional manager. Her boss, Clive, frequently asks her to go for dinner to discuss creating his schedule. He claims that they both have to eat, and by going to dinner, they can get more work done and free up their evening.
However, at dinner, the conversation turns from work-related matters to Kim’s dating history and her sexual preferences in bed. The following day, Kim notices Clive staring at her while she’s working, making her feel uncomfortable.
Clive starts sending Kim unwanted late-night texts saying he can’t stop thinking about her. He stops at her desk when no one else is around and tells her he doesn’t feel sexually fulfilled in his relationship with his wife.
Kim tells Clive his conduct is inappropriate and tries to leave the office, but Clive blocks the exit and says he just needs someone to help him through this rough patch in his relationship. Clive continues to escalate this behavior in the coming weeks, leaving Kim dreading going to work each day.
Other Issues Involving Sexual Harassment in the Workplace
Here are a few other facts about sexual harassment in the workplace and how it may create a hostile work environment for employees.
Sexual Harassment by Clients or Customers
While most employees are fully aware of what constitutes sexual harassment from colleagues and superiors at work, they don’t understand the same rules apply to the clients or customers that visit the business.
Title VII states that the employer has a duty to protect their employees from sexual harassment by people visiting the business premises. This includes clients, customers, business partners, vendors, and anyone related to business operations. If the employer is aware of the harassment, they must act to stop it.
Sexist Actions and Comments
Another misconception of workplace harassment is that it must be of a sexual nature. Title VII states that offensive conduct based on an employee’s gender and pervasive or severe enough to create a hostile or abusive work environment is illegal.
For instance, a workplace might qualify as hostile if management tells women working in the office that they must live up to gender stereotypes and be more feminine with how they dress and behave at work. Or it could be cases involving women being left out of important meetings or having their work sabotaged by male colleagues.
Sexual Harassment Covers All Genders
Most people assume sexual harassment can only happen to women, but that’s not the case. While cases involving men harassing women are the most prevalent, they can also occur the other way around. It also includes same-sex harassment, and the issue doesn’t have to be sexual in nature; it just needs to be based on the gender of the victim.
Understanding the Employee Polygraph Protection Act of 1988
In many cases of sexual harassment, the complaining party could be making a genuine claim, or they could be making up allegations against their colleague or superior to get them in trouble in the hope they lose their job. Unfortunately, the situation isn’t always black-and-white.
The last thing an employer wants to do is fire someone falsely accused of sexual harassment only to receive a massive lawsuit for the infringement. In this case, the employer can implement a polygraph policy to get to the bottom of the matter and see which party is telling the truth.
The “Employee Polygraph Protection Act of 1988” (EPPA) prevents private-sector companies from instituting a polygraph policy in the workplace, except under extenuating circumstances, such as sexual harassment. As a result, the employer is within their rights to implement a polygraph policy to investigate these matters.
Provided that the employer follows the guidelines set by the EPPA for implementing the polygraph policy, they are free to do so. However, it’s important to note that the employer may not force either employee to take the polygraph exam.
If one of the employees refuses to take the polygraph, they cannot bully them into taking it, fire, or reprimand them. Doing so would violate the EPPA. However, in this case, if one employee is willing to take the polygraph exam and the other refuses, it gives the employer a clear indication of who is telling the truth, and the employer can base their decision around this action.
However, they may not use the refusal as the grounds for their decision in any official capacity. Doing so would violate the terms of the EPPA and set the employer up for an investigation into the matter by the US Labor Department.
Structuring a Workplace Polygraph Policy for Sexual Misconduct
In private-sector industries that must adhere to the terms of the EPPA, the employer must take caution when setting up their workplace polygraph policy. The last thing they need is to fall foul of the EPPA.
To remain compliant with the EPPA, the employer must hire a qualified and experienced labor law attorney to assist them with navigating the process. They must also contract the services of an independent polygraph firm that appoints an examiner to assist with formulating the polygraph policy and carrying out the lie detector tests.
The examiner, attorney, and employer collaborate on setting up the polygraph policy and notifying the employees of their intention to polygraph them and their rights under the EPPA. For instance, the employer must give the employees advanced notice at least 48 hours before the exam.
They must call the employees into a private office individually to explain the terms of the polygraph and their rights, including their ability to refuse the exam. The employer must get the employees to sign documents ascertaining the nature of the polygraph, the employee’s consent to undergo the test, and the questions asked during the exam.
The employer must ensure the employees receive copies of all documents they sign. On the test day, the examiner must remind the employee of their rights and the questions they intend to ask during the lie detector test.
When the polygraph exam begins, the employee has the right to end the session whenever they please, and the employer or examiner may not stop them from doing so. Nor can the employer hold the employee in reprimand or fire them for refusing the test or cutting it short.
What Happens if the Employer Violates the EPPA?
If the employer fails to follow the guidelines of the EPPA when implementing their polygraph policy, the employee has legal recourse against them. The employee may file a complaint with the US Labor Department to investigate the employer’s use of the workplace polygraph policy and the test results.
The employee can choose to file this complaint themselves, or they can seek the assistance of legal counsel to help them navigate the process. The US Labor Department will investigate the matter. If they find the employer negligent in any manner, they’ll issue a stiff financial penalty.
Are Polygraph Results Admissible in Court?
Suppose the polygraph results find an employee guilty of sexually harassing another. In that case, the employer may not use the test results as grounds to fire the employee without corroborating evidence to support the claim. However, the employer may use the polygraph results in corroboration with other evidence to understand the guilty party in the claim and take action to neutralize the problem.
If the employer or employee goes to court over the matter, most states prevent the admission of polygraph results into evidence. States vary on the admissibility of polygraph results into evidence, with the presiding judge usually being the gatekeeper to accepting the results into evidence or not.
