Introduction
The most challenging issue to discuss today in the workplace for the Human Resource Departments is the continuous metamorphosis of the sexual harassment. Sexual harassment at workplace is widely known as an act that occurs when an employee continuously and continuously makes sexual advances or request for sexual favors from another employee. Also, sometimes it might not advance that are physical but through verbal conduct which is an intimate nature. Sexual harassment is considered so when the other employee is not willing to engage in such promiscuous activities, in fact, the advances which are either physical or verbal is always against his or her wishes. The United States Equal Employment Opportunity Commission (EEOC) indicates that when the sexual harassment conduct is either accepted or rejected by the victim and still interferes with an individual’s work, it is always an offense. According to EEOC, sexual harassment interferes with an individual’s performance at work or maybe create a very hostile environment to conduct or do any effective work ( Tyner & Clinton, 2010) . In respect to the laws, specifically in the United States, sexual harassment is a serious crime because it is considered as a form of discrimination. Any form of sexual harassment in the United States violates Title VII of the Civil Rights Act of 1964.
According to most studies, most employees are unaware of sexual harassment activities in their workplace, which makes it very difficult to tackle the matter. In fact, the studies indicate that most employees are unaware of what activities constitute sexual harassment. This has hindered most cases being taken for scrutiny by the courts in the United States. Also, what worries the federal government is that most of the sexually harassed employees fail to report the matter to the right authorities for fear of being rejected or because of publicity of the issue.
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According to EEOC, sexual harassment can occur in very many forms. Some of the forms of sexual harassment at a place of work include posting pictures, sometimes in the emails, which are somewhat sexual related, frequently requesting a co-worker a dates which are constantly being denied such that it becomes a norm, flirting with a co-worker yet he or she is uninterested, constantly playing some form of suggestive sexual music to the co-worker or an employee, and joking sexually with a co-worker or even saying some offensive words which are sexually related at workplace. Some physical acts such as grabbing an employee around the waist area or touching the co-worker’s genitals or private parts are also considered as an act of sexual harassment.
According to Lim and Cortina (2005), sexual harassment is just one form of mistreatment at a workplace. However, it is the most commonly discussed item in the media. Today, according to Lim and Cortina, there is various forms mistreatment at workplaces: emotional abuse, bullying, general workplace abuse, and incivility. Sexual harassment has become a serious discussion in the United States with many personalities being reported as sex offenders against women and men. According to many types of research, although men are violated ass well, women have become seriously affected by the sexual harassment conducts at workplaces the United States. It is however saddening that most of the women who report these cases are not helped. This paper, therefore, seeks to address the effects of sexual harassment on companies, the history and the legal description of the same, and finally the way forward.
Sexual Harassment effect on Business
Recent and old surveys indicate that the number of reports of sexual harassment reported is mostly by working women. This ranges from between 40 to 90% of the working women depending on the state ( Tyner et al., 2010) . According to EEOC, this is a worrying trend that has to be stopped immediately. According to the Labour Department of the United States, most businesses are losing as a result of sexual harassment. This is because most affected women decide to be absent and have low working morale. To some extent, the business loses because most of the sexually affected decided to quit hence causing the companies to seek to employ new workers consequently spending on training. However, the most serious loss to business and the reason why most cases of sexual harassment are never heard is that of long and tedious legal process.
Most companies tend to push sexual harassment issues under the rug because it leads to loss of the face and reputation. This has since become the norm since the Weinstein events, for instance, the Bill O’Reilly story. The Weinstein events have shown Americans that most of the sexual harassers are normally the company stars and therefore would do whatever necessary to prevent the allegation past the workplace. Most companies, therefore, process the claims of sexual harassment against women through mandatory, confidential arbitration. This is because court process is very long and muddy. This normally ends up in a non-disclosure agreement which eventually affects the offended both mentally and physically. Normally such tactics end up leaving the victim isolated while insulating the harasser. However, according to research by EEOC, the incentives of such approach could be backward which might end up affecting the companies more than they expect. According to Lim and Cortina (2005), an employee that is causing sexual harassment at a work place is a danger to the growth of the company more than his or her presence in the company. A report given by EEOC in 2003 indicates that because of sexual harassment cases at workplaces, job turnover loss is about $25 million, sick leaves about $15 million, decreased individual about $94 million and workgroup of about $194 million losses. This results in nearly $350 million loss due to sexual harassment ( Golshan, 2017) . This figure today stands at about $1 billion.
Golshan (2017) says that s ince the year 2010, the trend has become paying the employees alleging sexual harassment. In fact, according to research conducted by EEOC indicates that employers have almost paid past a half a billion dollars, about $700 million through Commission’s administrative enforcement pre-litigation. This is a trend that continues to rise with most companies choosing to silence the allegations of sexual harassment; however, the researchers at EEOC indicate the rate at which most companies are trying to silence the victims of sexual harassment at workplace is at worrying levels. Most workers choose to take the paycheck because of the fear of also losing their face in public. Some consider the paycheck because of fear of becoming poor and being unable to take care of their families.
Sexual Harassment at Workplace definition according to Law
It is important to note that sexual harassment has undergone a series of description from the time the Civil Rights of 1964 was effected. In fact, recently, the claims of hostile environment sexual harassment have become very ambiguous. Most courts today have replaced the traditional, reasonable person with reasonable woman standards ( Adler & Peirce, 1993) . This has been as a result of the lobby to have gender-specific standards to compensate for the gender difference in the view of sexual harassment. However, some researchers claim that this might have a serious impact on the court decisions. Nonetheless, the metamorphosis of sexual harassment resulted in the Civil Rights Act of 1991 as the Supreme Court, in the cases of FSB against Vinson, helped describe the two types of sexual harassment. The two types of sexual harassment as indicated in the case of FSB v. Vinson of 1986 are Quid pro quo harassment and hostile work environment sexual harassment ( Perry, Kulik, & Bourhis, 2004) .
According to the Supreme Court description of 1986, Quid pro quo harassments are where the submission to such conduct, most probably sexual is related to the employment decision. For instance, increase in salary, getting a job or a promotion, among many other jobs related stuff. On the other hand, hostile work environment harassment is related to those behaviors by the co-workers and the organizational members that result into intimidation, hostility, and offense that interferes with the performance level of an employee. These people could be the supervisors, the managers, and sometimes the clients. Since the 1990s, most courts have become more receptive to the plaintiffs of quid pro quo harassment cases because they are economically and emotionally dangerous as compared to the hostile environment cases. Most hostile environment cases do not seem substantial enough to judge on. This has increased the hostile environment harassment situations in the companies across the United States as indicated by EEOC. According to researchers, hostile environment, sexual harassment tend to be so controversial and solving them can prove unending. According to the court description, hostile environment sexual harassment seems as perception, unlike Quid pro quo which has tangible evidence and can be seen.
Goodman –Delahunty (1999) says that to describe what hostile environment sexual harassment is, the Supreme Court on the FSB v. Vinson case of 1986 put four main aspects of determination. One, the conduct must be sexual though in most cases it is very difficult to determine so. Secondly, the court in deciding whether a case is hostile environment sexual harassment must check and determine whether the advances were rejected and unwanted. That is, the court must test the totality of the circumstances of the conduct before deciding on it being hostile environment sexual harassment. The activities engaged in by the co-workers, the supervisors, or the clients must be defined. Third, according to Greider, wisely, and Gee (1992), the conduct must be very pervasive such that it consequently affects the victim’s ability to carry out his or her duty at the workplace. Fourth, to determine whether harassment is a hostile environment, the court is directed to establish whether the employer knew about the conduct or is obliged to know about it.
However, controversies about hostile environment sexual harassment at the workplace have been based on the same criteria used in their determination. According to Goodman-Delahunty, Most of the disputes are based on whether the alleged sexual harassment is severe to be considered the hostile environment. The courts usually use two methods in determining hostile environment sexual harassment for the workers; the subjective and the objective elements. Subjectively the court always looks into whether the offended individual perceived the conduct as a pervasive. Upon doing so, the court applies objective reasoning to determine whether the sexual harassment is hostile environmental. When applying the subjective element of the case, most courts in most occasions, since time immemorial, have always disregarded the fact that conduct leads to negative psychological effects. This can be expressed by the Harris v. Forklift System, Inc. of 1993 ( Perry et al., 2004) . According to the case, the court ruled that it was not necessary for the plaintiff to show that the hostile and abusive environment affected her psychological well-being. According to the court decision of the past, the reason for such disregard is because every successful hostile environment results in the physiological effect. This is something that some researchers have however felt to be untrue. According to these researchers, it is important to test the psychological injury caused to the plaintiff rather than just leaving it for the public consumption and narratives.
The question has, however, been the criteria for conducting the objective reasonableness. In fact, as a result of the disagreements, the woman standards were introduced and adopted as opposed to the person standards ( Adler et al., 1993) . Most researchers felt the need that the reasonableness is based on gender because of the societal perception of the two different genders. According to Forell and Matthews (2000), reasonableness is defined by the minimum standards of behavior on what the society perceives as a substandard conduct or act. The gender-based objective reasoning was as a result of questioning by other courts who felt that general reasoning without looking at factors that constitute the hostile environment sexual harassment in the first place. For a long time before the 2000s, courts used gender-neutral language in most of the hostile environment sexual harassment cases. However, with the concern rising form women who were the most affected by the acts of sexual harassment, gender-based language and standards had to be introduced. The first judge to consider the use of gender-based language was Judge Keith in the case of Rabidue v. Osceola Refining Company ( Perry et al., 2004) . The judge considered the woman standard while addressing the case. One most remembered case that has become the foundation of woman standards was the Ellison v. Brady of 1991 where the case was first thrown out because of the non-gender based consideration; however, after being reviewed in the court of appeals, the case was readmitted because the court indicated that the first dismissal was based on general language without considering the gender of the victim. ( Perry, et al., 2004)
The courts today have decided to use woman standard or man standard because of the perception. According to legal scholars, men seem to perceive sexual harassment differently to the women perceptions. Courts today view hostile environment sexual harassment as a scenario when the female plaintiffs consider a conduct pervasive such that it affects the environment of doing work. This was as a result of the judgment of the Ellison v Brady case of 1991. As much as the court has been considered based on the issue of sexual harassment, psychologists have, however, supported the issue of woman standard when dealing in hostile environment sexual harassment because women do perceive sexual harassment differently as compared to men. Some researchers have however claimed that there is no difference in the perception of sexual harassment by either gender at workplaces. Rotundo, Nguyen, and Sackett (2001), however, claim that the difference in the perception is so minimal that it should not be the basis of most hostile environment sexual harassment judgments. According to Rotundo et al., gender different perceptions is just among many factors that sexual harassment could be perceived. This continuous back and forth perception of hostile environment sexual harassment has become a blockade to most sexual harassment cases in the United States today and probably in the future. Some researchers though believe that the solution is the gender-based perception of the sexual harassment at workplaces is clear law.
Why most Sexual Harassments at Workplace are not Formally Reported
Despite all the legal opportunities that provide employees with the ability to present their cases at the court, most fail to report. As earlier indicated, some fail to do so because they sign the non-disclosure agreement that deters them from disclosing the act. Some are paid by the companies they work for to ‘undisclosed’ the issue. However, according to recent research, the most common reason as to why the victims do not report sexual harassment is because of the fear of retaliation. As much as most companies and sexual offenders disagree with the fact that there is something to fear, research conducted by EEOC in 2003 found out that the fear is well-founded and women should tread carefully. According to the study, about 75% of the women who reported the sexual harassment cases faced serious backlash and retaliation from both the companies and the co-workers ( Golshan, 2017) .
The Weinstein case gave a clear view of how women who report sexual harassment especially in the film industry were threatened. According to a report from the Weinstein events, Hollywood executives threaten the actresses who would not engage with them in sexual activities ( Golshan, 2017) . The actresses who threaten to report any form of sexual harassment, losses their jobs. Most of the actresses, therefore, chose to remain silent. In fact has become a norm until recently where women are coming out to claim that they have been sexually harassed in the past? Golshan says that a ccording to a report by Anna North of Vox, most women do not come to the limelight about the issue of sexual harassment unless other women come out first. Women report the cases of sexual harassment based on others women. Once one woman spill out the beans others follow; this has become common in the United States.
Most victims do not follow the formal reporting procedure. Most of the victims do not even talk to their supervisors or the company leadership about the sexual harassment acts by co-workers or employees. In fact, research conducted by EEOC in 2003 indicated that just about 30% of the victims of sexual harassment, commonly the hostile environment kind, talked and communicated about it to their supervisors, managers, or even the unions that are responsible for the workers. Further, according to the report, physical touching, sexually related, was reported only by 8% of the women who were sexually harassed at their workplaces in 2003, something EEOC claims that is still going on today. The ones who experienced coercive sexual advances were only 30% of the total population who underwent such form of sexual harassment. In essence, just about 10% of women who undergo sexual harassment in the United States report the cases to the right authorities. To mean about 90% of women never report nor put a formal complaint about sexual harassment in the United States. The worst case scenario is men. According to EEOC, men do not report in any sexual harassment, either because of fear of stigmatization or just to maintain their face. According to EEOC the underreporting is because most of the victims of sexual harassment fear retaliation from their colleagues and the employers. Also, most of the victims fear being considered irrelevant and liars, and this according to some researchers is because most men will not report.
Way forward for the Human Resource Departments
Because of the high number of sexual harassment at workplaces, with most being unreported, it is imperative that the Human resource department in every company across the United States develops a sexual harassment policy that outlines the forms of harassments not tolerated in the company to allow the employees to work effectively. The policy drafted by the HR should include the procedure for conducting investigations and the possible consequences if the offenders are found guilty. After all, the Civil Rights Act of 1964 clearly outlines sexual harassment at the place of work illegal. The Supreme Court has also clearly outlined how to determine whether conduct is hostile environment sexual harassment or Quid pro quo.
To ensure that the United States as a whole deal with the scenarios of sexual harassment, various steps need to be taken. First, when the employees report on any form of sexual harassment, an investigation should be conducted immediately and done appropriately and fast. The investigation should probably be conducted by the human resource department to prevent any form of biases. The employees should be made aware that it is mandatory and their obligation that every out of sexual harassment in the workplace must be reported to the supervisors and the human resource department. This will help in increasing the number of reports about sexual harassment. Also, the future the Human resource staff should indicate both the company and the legal consequences of sexual harassment both to the offender and the offended. The human resource should as well explaining the investigation procedure to the victim and the harasser. T prevent any forms of retaliation; it should be the responsibility and the obligation of the HR to keep any forms of the sexual harassment confidential. This is also because some of the people fail to report such forms of harassment because of the fear of stigmatization and the fear of losing their otherwise good reputation. At any time also, the HR should in the future invite legal counsel to prevent the company from receiving any forms of backlash.
Conclusion
In conclusion, sexual harassment at the place of work has been on the rise for some time now in the USA. Most workers are unaware of the forms of sexual harassment, and it is the responsibility of the HR department to inform them. Today, sexual harassment is not reported, yet there is clear support for the Civil rights Act. This is because of the fear of retaliation. It is therefore imperative that in the future, the Human resource departments in the United States take responsibility for helping to reduce such vices.
References
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