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Sexual Harassment & Gender Discrimination FAQ


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Title IX of the Education Amendments of 1972 prohibits sex discrimination against any participant in an educational program or activity receiving federal funds. The act is intended to eliminate sex discrimination in education. Title IX covers discrimination in programs, admissions, activities, and student-to-student sexual harassment. BYUH’s policy against sexual harassment protects not only employees of the university but students as well.

Sexual harassment refers to unwelcome conduct of a sexual nature. Sexual harassment may include

  1. unwelcome sexual advances,
  2. requests for sexual favors, and
  3. other verbal, non-verbal, or physical conduct of a sexual nature.
Sexual harassment may also include denying or limiting, on the basis of sex, the student’s ability to participate in or receive benefits, services, or opportunities in university programs. BYU–Hawaii’s policy against sexual harassment extends not only to employment situations, but to academic situations well.

  • Quid Pro Quo sexual harassment is present when:
    • An expressed or implied request or demand for sexual favors is made;
    • An expressed or implied threat to employment or education related to the acceptance or rejection of the request or demand is made; and/or
    • The person making the request or demand is in a position to implement the threat.
  • Hostile Work Environment sexual harassment is gender-based conduct that is so severe that it interferes with the ability of a person to perform employment or academic functions. To be defined as illegal, sexual harassment must be excessive, pervasive, severe, or part of a continuing pattern or practice.

    Allegations of sexual harassment are taken seriously. Upon receiving a report of sexual harassment the Honor office and/or the Human Resource office takes appropriate action to resolve and correct conditions resulting from individual perceptions or from inappropriate behavior.

To create a sexually hostile environment, unwelcome conduct based on gender must meet two additional requirements:

  • it must be subjectively abusive to the person(s) affected, and
  • it must be objectively severe or pervasive enough to create a work environment, that a reasonable person would find abusive.
To determine whether behavior is severe or pervasive enough to create a hostile environment, the finder of fact (a court or jury) considers these factors:
  1. The frequency of the unwelcome discriminatory conduct;
  2. The severity of the conduct
  3. Whether the conduct was physically threatening or humiliating, or a mere offensive utterance;
  4. Whether the conduct unreasonably interfered with work performance;
  5. The effect on the employee’s psychological well-being; and
  6. Whether the harasser was a superior in the organization.
Each factor is relevant – no single factor is required to establish that there is a hostile environment. Relatively trivial, isolated incidents generally do not create a hostile work environment. For example, one work environment found no legal violation where a woman’s supervisor, over the course of a few months, had asked her out on dates, called her a “dumb blonde,” placed his hand on her shoulder, placed “I love you” signs in her work area, and attempted to kiss her. (Weiss s. Coca Cola Bottling Co.)

Hostile environment sexual harassment also was not found where women were asked for a couple of dates by co-workers, subjected to three offensive incidents over 18 months, or subjected to only occasional teasing or isolated crude jokes or sexual remarks.

Sexual harassment was found, on the other hand, where women were touched in a sexually offensive manner while in confined workspace, subjected to a long pattern of ridicule and abuse on the basis of gender, or forced to endure repeated unwelcome sexual advances.

These examples simply illustrate how severe or pervasive gender-based conduct must be to be legally actionable (and how blurred the line between lawful and unlawful conduct sometimes is). Given this uncertainty, prudent employers will address incidents of unwelcome gender-based conduct long before they approach the level of severity or pervasiveness that would create a hostile environment as legal matter.

Hostile environment cases are often difficult to recognize. The particular facts of each situation determine whether offensive conduct has “crossed the line” from simply boorish or childish behavior to unlawful gender discrimination. Some courts state that men and women, as a general rule have different levels of sensitivity -- conduct that does not offend most reasonable men might offend most reasonable women. In one study, two-thirds of the men surveyed said they would be flattered by a sexual approach in the workplace, while 15 percent would be insulted. The figures were reversed for the women responding. Differing levels of sensitivity have led some courts to adopt a “reasonable woman” standard for judging cases of sexual harassment. Under the standard, if a reasonable woman would fell harassed, harassment may have occurred even if a reasonable man might not see it that way.

Because the legal boundaries are so poorly marked, the best course of action would be to avoid all sexually charged conduct in the workplace. You should be aware that your conduct might be offensive to a co-worker and govern your behavior accordingly. If you’re not absolutely sure that behavior is sexual harassment, ask yourself these questions:

  • Is this verbal or physical behavior of a sexual nature?
  • Is this conduct offensive to persons who witness it?
  • Is this behavior being initiated by only one of the parties who has power over the other?
  • Does the employee have to tolerate that type of conduct in order to keep his or her job?
  • Does the conduct make the employee’s job unpleasant?
If the answer to these questions is “yes,” put a stop to the conduct.

Only unwelcome conduct can be sexual harassment. Consensual dating, joking, and touching, for example, are not harassment if they are welcomed by the persons involved.

Conduct is unwelcome if the recipient did not initiate it and regards it as offensive. Some sexual advances (“come here Babe and give me some of that”) are so crude and blatant that the advance itself shows its unwelcomeness. In a more typical case, however, the welcomeness of the conduct will depend on the recipient’s reaction to it.

Outright Rejection

The clearest case is when an employee tells a potential harasser that conduct is unwelcome and makes the employee uncomfortable. It is very difficult for a harasser to explain away offensive conduct by saying, “She said no, but I know that she really meant yes.” A second-best approach is for the offended employee to consistently refuse to participate in the unwelcome conduct. A woman who shakes her head “no” and walks away when asked for a date has made her response clear.

Ambiguous Rejection

Matters are more complicated when an offended employee fails to communicate clearly. All of us, for reasons of politeness, fear, or indecision, sometimes fail to make our true feelings known. A woman asked out for a “romantic” dinner by her boss may say, “Not tonight, I have a previous commitment” when what she really means is “no way, not ever.” The invitation is not inherently offensive, and the response leaves open to question whether the conduct was truly unwelcome.

Soured Romance

Sexual relationships among employees often raise difficult issues as to whether continuing sexual advances are welcome. Employees have the right to end such relationships at any time without fear of retaliation on the job, so that conduct that once was welcome is now unwelcome. However, because of the previous relationship, it is important that the unwelcomeness of further sexual advances be made very clear.

What Not To Do

  • Invited the alleged harasser to lunch or dinner or to parties after the supposedly offensive conduct occurred;
  • Flirted with the alleged harasser;
  • Wore sexually provocative clothing and used sexual mannerisms around the alleged harasser; and
  • Participated with other in vulgar language and sexual horseplay in the workplace.

For these reasons, if you find gender-based conduct or sexually oriented conduct offensive, you should make your displeasure clearly and promptly known. Remember that some offenders may be unaware of how their actions are being perceived. Others may be insensitive to the reactions of fellow workers. Tell the harasser that the behavior is not acceptable and is unwelcomed by you. At the very least, refuse to participate in the behavior.

Even if you do not find the conduct personally offensive, remember that some of your co-workers might, and avoid behavior that is in any way demeaning on the basis of gender. In determining if your own conduct might be unwelcome, ask yourself these questions:
  • Would my behavior change if someone from my family was in the room?
  • Would I want someone from my family to be treated this way?

You and your employer share a steak in maintaining a harassment-free work environment. Many organizations have written policies, distributed to all employees that contain examples, which contain examples of prohibited conduct and describe procedures for handling complaints. These policies may forbid conduct that falls short of unlawful sexual harassment. It’s important to learn about your own employer’s policy. Retaliation against any employee who reports sexual harassment or who cooperates when the employer investigates a claim of sexual harassment is prohibited. The employer will want to conduct a prompt and thorough investigation of all complaints, and matters will be kept as confidential as possible.

Employer policies typically provide that any employee found to have violated the policy will be subject to discipline, up to and including immediate discharge, and that the complaining employee will be told whether action has been taken, even if not told specifically what was done.

If you experience sexual harassment or witness it, you should make a report to the appropriate official. You do not have to report the incident to your supervisor first, especially if that is the person doing the harassing. Before you report a problem, you might want to try some self-help techniques, using the DO’s and DON’Ts:

Do

  • Admit that a problem exists
  • Tell the offender specifically what you find offensive
  • Tell the offender that his or her behavior is bothering you
  • Say specifically what you don’t want to happen, such as “please call me by my name not Honey,” or “please don’t tell that kind of joke in front of me.”

Don’t

  • Blame yourself for someone else’s behavior, unless it truly is inoffensive
  • Choose to ignore the behavior, unless it is truly inoffensive
  • Try to handle any severe or recurring harassment problem by yourself -- get help.

If you do follow these self-help suggestions, remember that sexual harassment is an organizational problem, and the employer wants to know about it so it can take prompt and appropriate action to ensure that no further incidents occur, with the present victim or other employees, in the future. Report incidents immediately, especially if they are recurring. Employees who promptly report harassing conduct can help their organization as well as themselves.


Gender Discrimination

BYUH’s Honor code states, in part, that personnel and students will seek to demonstrate the moral virtues encompassed in the Gospel of Jesus Christ.

Inappropriate gender-based behavior is any behavior directed at another person due to that person’s gender which violates the Honor Code or the person’ individual dignity but does not rise to the level of unlawful sexual harassment. Inappropriate gender-based behavior is a violation of the Honor Code and is against university policy.

Some examples of inappropriate behavior are:

  • Repeated stereotypical gender-based remarks;
  • Sexually oriented jokes, flirting, or comments;
  • Unwelcome touching or any touching of a sexual nature;
  • Verbal or physical abuse;
  • Graphic, sexually oriented comments about an individual’s body;
  • Derogatory or demeaning comments concerning gender;
  • Offensive or crude language;
  • Display of objects or pictures which are sexual in nature; and/or
  • Persistent and unwanted attempts to change a professional relationship into a personal one.

If you feel that you have encountered sexual harassment, gender based discrimination, or need assistance or information related to allegations of sexual harassment, contact the Honor Office, for students, and/or the Human Resource office at 675-3713.

Remember, if you encounter unlawful sexual harassment or inappropriate gender-based behavior:

  • If practicable and if the incident is minor and isolated, tell the harasser in person or by letter that his or her behavior is neither humorous nor welcome and ask that it stop immediately.
  • Keep a written record of what happened, when, names of witnesses, and any other pertinent information that could be helpful in resolving the concern.
  • Inform the dean, chair, director, or administrative line management of what is happening.
  • That person will coordinate with the Honor Office for students and/or the Human Resource office for claims involving university faculty and staff.
  • If you prefer, report the incident directly to the Honor Office for students and/or the Human Resource office for university faculty and staff.