Supplemental Resources

for New York State &

New York City
- Course Training Materials
 Table of Contents

Overview ...............................................................................................................................................3
Why Training about Harassment, Sexual Harassment, and Abusive Conduct? ............................3
What is Sexual Harassment? ..............................................................................................................3
Who is Protected Against Harassment and Sexual Harassment? ..................................................4
Hostile Environment ...........................................................................................................................5
Quid Pro Quo Sexual Harassment .....................................................................................................5
Who can be the Target of Sexual Harassment? ................................................................................5
Who can be the Perpetrator of Sexual Harassment? .......................................................................5
Where Can Workplace Sexual Harassment Occur? .........................................................................6
Sex Stereotyping ..................................................................................................................................6
Retaliation .............................................................................................................................................6
What is Retaliation? ............................................................................................................................7
What is Not Retaliation .......................................................................................................................7
The Supervisor's Responsibility .........................................................................................................7
Mandatory Reporting ..........................................................................................................................8
What Should I Do If I Am Harassed? ..................................................................................................8
What Should I Do If I Witness Sexual Harassment? .........................................................................9
Investigation and Corrective Action ...................................................................................................9
Investigation Process .........................................................................................................................9
Corrective Action ..............................................................................................................................10
Additional Protections and Remedies..............................................................................................10
New York State Division of Human Rights (DHR) ............................................................................10
United States Equal Employment Opportunity Commission (EEOC) ...............................................10
Local Protections ..............................................................................................................................11
Other Types of Workplace Harassment ...........................................................................................11
Sexual Harassment Case Studies ....................................................................................................12
Example 1: Teasing and Name Calling ............................................................................................12
Example 2: Overhead Conversations ...............................................................................................12
Example 3: Behavior at Offsite Activities ..........................................................................................12
Example 4: Touching and Suggestive Remarks...............................................................................13
Example 5: Compliments ..................................................................................................................13
Example 6: Appropriate Conversations and Actions at Work ...........................................................14
Example 7: Staring and Leering .......................................................................................................14
Example 8: A Reassignment ............................................................................................................15
Example 9: Online Postings .............................................................................................................15
Example 10: Gender Transition ........................................................................................................16
Example 11: This For That ...............................................................................................................16

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 Overview

New York requires that you be provided with the information regarding sexual harassment prevention
that you received in today’s training. The content found in Common Ground Business, Common
Ground Business 2 and Common Ground Healthcare fully complies with the requirements of New
York State and New York City law.

The following outline reflects the training found in WILL Interactive’s Common Ground series of
courses and conforms to content requirements provided by the New York State Department of Labor,
in consultation with the New York State Division of Human Rights (Model Sexual Harassment
Prevention Training, October 2019 Edition) pursuant to Section 201-g of the Labor Law.

Why Training about Harassment, Sexual Harassment, and Abusive Conduct?

• Your employer has an obligation to provide a harassment-free work environment and this
training can go a long way to achieving that.

• Sexual harassment and harassment connected to other protected classes such as race,
ethnicity, religion, age, and disability, are forms of discrimination that violate both state and
federal laws.

• These laws apply to employers, employment agencies, labor groups, and government
organizations.

• The prevention of abusive conduct, sometimes called workplace bullying, is also part of
building a standard of conduct that leads to a healthier and more productive workplace.

• And as Benjamin Franklin once said, “An ounce of prevention is worth a pound of cure.”

What is Sexual Harassment?

• Sexual harassment is a form of sex discrimination and is unlawful under federal, state, and
(where applicable) local law.

• Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified
or perceived sex, gender expression, gender identity, and the status of being transgender.

• Sexual harassment is unlawful when it subjects an individual to inferior terms, conditions, or

privileges of employment. Sexual harassment includes unwelcome conduct which is either of a
sexual nature, or which is directed at an individual because of that individual’s sex when:

1. Such conduct has the purpose or effect of unreasonably interfering with an individual’s
work performance or creating an intimidating, hostile, or offensive work environment, even
if the reporting individual is not the intended target of the sexual harassment;

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 2. Such conduct is made either explicitly or implicitly a term or condition of employment; or

3. Submission to or rejection of such conduct is used as the basis for employment decisions.

• Certain physical conduct is considered sexual harassment, such as unwanted kissing,

hugging, grabbing, touching, impeding or blocking of movements, or assault.

• Verbal conduct can also be sexual harassment, such as:

o Unwanted foul or obscene language
o Derogatory comments that are sex or gender-based
o Explicit discussions of sexual activities
o Comments about other people’s physical or sexual attributes
o Sexual innuendos or sexual jokes
o Rumors about another person’s sexual activities or identity

• Visual or written conduct can also be considered sexual harassment, such as unwanted:
o Leering
o Staring
o Making sexual gestures
o Displaying sexually suggestive or explicit objects, pictures, or videos
o Sending sexually suggestive or explicit pictures or videos
o Sending sexually suggestive or explicit emails, text messages, or other electronic
communications

• Some examples of other conduct that could be sexual harassment include:

o Whistling or cat calls
o Sexually explicit sounds through speakers
o Sex-tinged or gender-specific pranks or practical jokes
o Holding company functions in an inappropriate environment or inviting inappropriate
guests or entertainment
o Sexual favoritism

• Under New York State law, harassment need not be “severe or pervasive” to be unlawful. Any
of the harassing conduct described in this training can be unlawful unless it is shown to be no
more than “petty slights or trivial inconveniences.”

Who is Protected Against Harassment and Sexual Harassment?

• All employees.

• Job applicants.

• Also, in some locations, independent contractors are protected.

• The organization has an obligation to those who work with it – customers, suppliers, and
others encountered in the scope of work – to not harass them in any way, even if the law may
not technically apply to that conduct.

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 There are two main types of sexual harassment:
Hostile Work Environment and Quid Pro Quo

Hostile Environment

A hostile work environment occurs when an employee is subject to unwelcome sexual conduct that
produces inferior terms and conditions of employment and unreasonably interferes with an
individual’s work performance or creates an intimidating, hostile, or offensive work environment.
There are four elements to hostile environment harassment:

1. The employee is subject to unwelcome harassment.

2. The harassment is based upon sex.

3. The harassment is intended to or has the effect of interfering with the employee’s work
performance or creating an intimidating, hostile, or offensive work environment.

4. There is a basis for holding the employer responsible for this conduct.

Quid Pro Quo Sexual Harassment

Quid pro quo harassment occurs when a supervisor conditions employment or employment-related
opportunities on the employee’s willingness to submit to or tolerate sexual advances. There are three
elements to quid pro quo harassment:

1. The employee is subjected to unwelcome sexual advances or requests for sexual favors.

2. The advances are based upon the employee’s sex.

3. The employee’s submission is an express or implied condition for receiving job benefits, or the
employee’s refusal to submit results in a tangible job detriment.

Who can be the Target of Sexual Harassment?

• Sexual harassment can occur between any individuals, regardless of their sex or gender.

• New York Law protects employees, paid or unpaid interns, and non-employees, including
independent contractors, and those employed by companies contracting to provide services in
the workplace.

Who can be the Perpetrator of Sexual Harassment?

• The perpetrator of sexual harassment can be anyone in the workplace:

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• The harasser can be a coworker of the recipient

• The harasser can be a supervisor or manager

• The harasser can be any third-party, including: a non-employee, intern, vendor, building
security, client, customer, or visitor.

Where Can Workplace Sexual Harassment Occur?

• Harassment can occur whenever and wherever employees are fulfilling their work
responsibilities, including in the field, at any employer-sponsored event, trainings, conferences
open to the public, and office parties.

• Employee interactions during non-work hours, such as at a hotel while traveling or at events
after work can have an impact in the workplace.

• Locations off site and off-hour activities can be considered extensions of the work
environment.

• Employees can be the target of sexual harassment through calls, texts, email and social
media.

• Harassing behavior that in any way affects the work environment is rightly the concern of
management.

Sex Stereotyping

• Sex stereotyping occurs when conduct or personality traits are considered inappropriate simply
because they may not conform to other people's ideas or perceptions about how individuals of
either sex should act or look.

• Harassing a person because that person does not conform to gender stereotypes as to
“appropriate” looks, speech, personality, or lifestyle is sexual harassment.

• Harassment because someone is performing a job that is usually performed, or was performed
in the past, mostly by persons of a different sex, is sex discrimination.

Retaliation

• Any employee who has engaged in “protected activity” is protected by law from being retaliated
against because of that “protected activity.”

• “Protected activities” with regard to harassment include:

o Making a complaint to a supervisor, manager, or another person designated by your

employer to receive complaints about harassment

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 o Making a report of suspected harassment, even if you are not the target of the
harassment

o Filing a formal complaint about harassment

o Opposing discrimination

o Assisting another employee who is complaining of harassment

o Providing information during a workplace investigation of harassment, or testifying in

connection with a complaint of harassment filed with a government agency or in court

What is Retaliation?

• Retaliation is any action taken to alter an employee’s terms and conditions of employment
(such as a demotion or harmful work schedule or location change) because that individual
engaged in any of the above protected activities. Such individuals should expect to be free
from any negative actions by supervisors, managers, or the employer motivated by these
protected activities.

• Retaliation can be any such adverse action taken by the employer against the employee, that
could have the effect of discouraging a reasonable worker from making a complaint about
harassment or discrimination.

• The negative action need not be job-related or occur in the workplace, and may occur after the
end of employment, such as an unwarranted negative reference.

What is Not Retaliation

• A negative employment action is not retaliatory merely because it occurs after the employee
engages in protected activity.

• Employees continue to be subject to all job requirements and disciplinary rules after having
engaged in a protected activity.

The Supervisor's Responsibility

• Supervisors and managers are held to a high standard of behavior. This is because:

o They are placed in a position of authority by the employer and must not abuse that
authority.

o Their actions can create liability for the employer without the employer having any
opportunity to correct the harassment.

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 o They are required to report any harassment that is reported to them or which they
observe.

o They are responsible for any harassment or discrimination that they should have known
of with reasonable care and attention to the workplace for which they are responsible.

o They are expected to model appropriate workplace behavior.

Mandatory Reporting

• Supervisors must report any harassment that they observe or know of, even if no one is
objecting to the harassment.

• If a supervisor or manager receives a report of harassment, or is otherwise aware of

harassment, it must be promptly reported to the employer, without exception,

o Even if the supervisor or manager thinks the conduct is trivial

o Even if the harassed individual asks that it not be reported

• Supervisors and managers will be subject to discipline for failing to report suspected sexual
harassment or otherwise knowingly allowing sexual harassment to continue.

• Supervisors and managers will also be subject to discipline for engaging in any retaliation.

What Should I Do If I Am Harassed?

• Harassment in the workplace cannot be stopped unless management knows about the
harassment. It is everyone’s responsibility.

• You are encouraged to report harassment to a supervisor, manager, or other another person
designated by your employer to receive complaints (as outlined in the sexual harassment
prevention policy) so the employer can take action.

• Behavior does not need to be a violation of law in order to be in violation of the policy.

• You may submit a written complaint to your organization’s HR department or office manager.
You may also make reports verbally.

• Review your organization’s sexual harassment prevention policy for guidance on ways to
submit your complaint. Your employer is obligated to follow the sexual harassment prevention
policy and investigate any complaints in an appropriate manner.

• You should report any inappropriate behavior you experience or know about, as described in
this training. It is not your responsibility to determine if it is unlawful or not. If it was wrong, it
should be corrected.

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 • Individuals who report or experience harassment should cooperate with management so a full
and fair investigation can be conducted and any necessary corrective action can be taken.

• If you report harassment to a manager or supervisor and receive an inappropriate response,

such as being told to “just ignore it,” you may take your complaint to the next level as outlined
in the organization policy. If your organization does not properly address the problem, you may
seek help from the City’s or State’s human rights commissions.

• If you are not sure you want to pursue a complaint at the time of potential harassment,
document the incident to ensure it stays fresh in your mind.

What Should I Do If I Witness Sexual Harassment?

• Anyone who witnesses or becomes aware of potential instances of sexual harassment should
report it to a supervisor, manager, or other person designated by the organization.

• It can be uncomfortable and scary, but it is important to tell coworkers "that's not okay" when
you are uncomfortable about harassment happening in front of you.

• A witness or bystander to sexual harassment can disrupt the situation by changing the subject,
starting a conversation with the person being harassed, or directly telling the harasser to stop.

• If you witness harassment as a bystander, you can try to get the attention and support of
others nearby. If you do not feel safe or you are threatened, consider contacting the police.

• It is unlawful for an employer to retaliate against you for reporting suspected sexual
harassment or assisting in any investigation.

Investigation and Corrective Action

Investigation Process

• The organization has a duty to take appropriate steps to ensure that harassment does not
occur in the future.

• Your organization will investigate all reports of harassment, whether information was reported
in verbal or written form, and take appropriate corrective action.

• Your organization’s designated person or office will conduct an immediate review of the
allegations, and take any interim actions, as appropriate. Depending on the circumstances,
these may include suspension with pay for the accused or a change in the complainant’s work
schedule or responsibilities if desired by the complainant.

• Relevant documents, emails, or phone records will be requested, preserved, and obtained.
Interviews will be conducted with parties involved and witnesses.

• The investigation will be documented as outlined in the sexual harassment policy.

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 • The investigation will be kept confidential to the extent possible. However, it is likely that the
alleged harasser will learn who made the complaint during the investigation. The accused has
rights, too, so the investigation will give the accused an opportunity to explain the situation.

• Any employee may be required to cooperate in an investigation of suspected sexual

harassment.

• It is illegal for anyone to retaliate against any person making a complaint, cooperating with the
investigation, or opposing discrimination.

Corrective Action

• The individual who complained and the individual(s) accused of sexual harassment will be
notified of final determination and any resulting administrative action.

• Anyone who engages in sexual harassment or retaliation will be subject to remedial and/or
disciplinary action. Corrective actions may include remedial training or counseling,
reassignment to new duties, loss of managerial responsibilities, demotion, or termination.

Additional Protections and Remedies

• Employees may also choose to pursue outside legal remedies as suggested below.

• An individual is not required to make an internal complaint in order to pursue any of these
additional outside options.

New York State Division of Human Rights (DHR)

• A complaint alleging violation of the Human Rights Law may be filed either with DHR or in New
York State Supreme Court.

• Complaints may be filed with DHR any time within three years of the alleged sexual
harassment. You do not need to have an attorney to file.

• If an individual did not file at DHR, they can sue directly in state court under the Human Rights
Law, within three years of the alleged sexual harassment.

• An individual may not file with DHR if they have already filed a Human Rights Law complaint in
state court.

• For more information, visit: www.dhr.ny.gov.

United States Equal Employment Opportunity Commission (EEOC)

• An individual can file a complaint with the EEOC anytime within 300 days from the alleged
sexual harassment. You do not need to have an attorney to file.
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 • A complaint must be filed with the EEOC before you can file in federal court.

• For more information, visit: www.eeoc.gov.

• NOTE: If an individual files an administrative complaint with DHR, DHR will automatically file
the complaint with the EEOC to preserve the right to proceed in federal court.

Local Protections

• Many localities enforce laws protecting individuals from sexual harassment and discrimination.

• You should contact the county, city, or town in which you live to find out if such a law exists.

• Harassment may constitute a crime if it involves things like physical touching, coerced physical
confinement or coerced sex acts. You should also contact the local police department.

Other Types of Workplace Harassment

• Workplace harassment can be based on other things and is not just about gender or
inappropriate sexual behavior in the workplace.

• Any harassment or discrimination based on a protected characteristic is prohibited in the

workplace and may lead to disciplinary action against the perpetrator.

o Protected characteristics include age, race, creed, color, national origin, sexual
orientation, military status, sex, disability, marital status, domestic violence victim status,
gender identity or expression, familial status, predisposing genetic characteristics, and
criminal history.

• Much of the information presented in this training applies to all types of workplace harassment.

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 Sexual Harassment Case Studies

• Scenarios can help explain the kind of behaviors that can constitute sexual harassment.

• It is up to all employees to report inappropriate behavior in the workplace.

• Please note that as an employee, it is not up to you to determine if something is sexual

harassment in the eyes of the law. You should report anything you suspect may be sexual
harassment. A manager or supervisor MUST report suspect sexual harassment.

Example 1: Teasing and Name Calling

A female employee constantly teases a male employee in her office because he has red
hair. Initially, the teasing was fine with him, but soon becomes a source of aggravation.
She only addresses him as "Red" or "Cinnamon Head,” not his real name. Even after the
male asks her to stop, she continues. He reports this as sexual harassment.

Question 1. Is this sexual harassment? Yes or No?

NO: There's no evidence in the facts provided that she's anything but a bully. This may be
harassment, but it isn't sexual harassment as it's not based on gender or anything of
a sexual nature. She could easily be teasing a woman with red hair based on the
conduct.

The employer may have an obligation to stop this behavior but not because of sexual
harassment law.

Example 2: Overhead Conversations

A male supervisor has been friends with one of his female employees for many years. He often
addresses her as “babe” or “doll.” Rather than find this offensive, the employee enjoys it as friendly
banter and often calls him “stud” or “hottie” in return. A third coworker is located near them and finds
their language offensive. That third coworker reports this as sexual harassment.

Question 2. Is this sexual harassment? Yes or No?

YES: The long-term friendship and the fact that their banter was welcome with each other is
irrelevant. The conduct was unwelcome and offensive to the third person. The third person's gender
or sexual orientation is also irrelevant. The nicknames they were using were gender-based and
arguably sexual in nature. Because one of them was a supervisor, the conduct could also be
perceived in terms of favoritism – like the third person may feel that participating in sexual banter is
necessary in order to ingratiate oneself to the boss.

Example 3: Behavior at Offsite Activities

Employee X, Employee Y, and other employees are sent out of town by their organization to an
industry conference. One night, the team ends up in the hotel bar to socialize. At the bar, Employee X

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makes crass sexual remarks to Employee Y. When Employee Y tries to walk away from the
conversation, Employee X pulls on his/her arm. Other employees step in, but Employee X says even
more sexually aggressive and demeaning remarks to Employee Y over the next half hour.

Employee Y grows increasingly disgusted and leaves.

Question 3. Does Employee Y have grounds for a claim of sexual harassment? Yes or No?

YES: There is an employment relationship between Employee X and Y. The incident occurred during
employer-sponsored travel. Sexual harassment can occur both on regular work premises and at work
related sites, including business trip locations, conventions, and holiday office parties.

Our jobs, and interactions with coworkers, may go beyond the workplace. If the harassing activity can
be shown to be related to the employment relationship, it could be grounds for a sexual harassment
claim. Courts have found liability for sexual harassment that occurred during business travel and
outside-work-related events.

Example 4: Touching and Suggestive Remarks

A female supervisor repeatedly puts her arms around an employee to tickle him, even after he's told
her to stop. The supervisor makes remarks laced with sexual innuendo. The employee finds the
treatment to be offensive and demeaning. He is fearful of the supervisor's intentions toward him and
wonders what impact his rejecting her sexually might have on his job. During the investigation, it was
found that the supervisor never received sexual harassment training.

Question 4. Is this sexual harassment? Yes or No?

YES: The scenario clearly sounds like sexual harassment. The conduct was motivated by the
complainant’s sex. It was severe – touching. It was subjectively and objectively offensive. It caused
damage. It was also pervasive – it happened repeatedly. A reasonable person would have found it
offensive, and the behavior was more than petty slights or trivial inconveniences.

Question 4A. Follow up: In this scenario, who is liable for sexual harassment? The Supervisor, the
Employer, or Both?

BOTH: Both the employer and supervisor are legally liable.

The employer is liable for the conduct of its supervisors. In addition, the organization did not take
reasonable steps to prevent the sexual harassment from occurring by not providing training.
Also, an individual may be personally liable for harassment, whether supervisor or not. The fact that
the supervisor may not have known that her conduct was unlawful sexual harassment is not
considered.

Example 5: Compliments

One day, an otherwise very professional supervisor compliments an employee’s looks. The
compliment is tasteful but flirtatious. The employee is offended and tells the supervisor immediately.
The supervisor apologizes and it doesn’t happen again, but the employee is disturbed by the incident

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over the following week. The employee reports this as sexual harassment and it is thoroughly
investigated.

Question 5. Was this sexual harassment? Yes or No?

NO: The incident was not severe or pervasive. The employer responded appropriately by thoroughly
investigating the complaint. A reasonable person would likely find this incident to be trivial.

But what about the flirt? Can an employee or supervisor flirt in the workplace?

Flirtation is legally considered part of ordinary socializing in the workplace. Thus, a supervisor can
compliment a subordinate's looks (as long as the compliment isn't sexually degrading) without being
subject to liability for sexual harassment. “Mere solicitude... is not sexually harassing behavior.”
[Corbitt v. Home Depot U.S.A., Inc. (11th Cir. 2009) 573 F3d 1223, 1240]

That said, flirtation could reach the threshold of unlawful harassment if the actions are not as
professional as described in the scenario. For example, repeated unwanted flirtation or flirtation that
is of a crass or offensive nature according to the reasonable person standard could be considered
unlawful sexual harassment.

Example 6: Appropriate Conversations and Actions at Work

A male employee works in an office with six other employees, all females. Their supervisor works in
another building, supervises online, and never visits. In the office, the females hang posters of naked
men and regularly have sexual conversations about men. They are never disrespectful directly to the
male and no offensive conduct is directed at him personally. When he reports this to his supervisor,
the supervisor tells him to deal with it since he's the only male in an all-female office.

Question 6. Is this sexual harassment? Yes or No?

YES: This is sexual harassment.

Sexual harassment does not necessarily involve sexual conduct directed at the complainant. He
clearly was forced to work in a hostile work environment. Remember, even if you're just talking or
joking around with friends at work, if others can hear or see, you are affecting their work environment.

Question 6A. Follow up: In this scenario, who is liable? The Supervisor, the Employer, the
employees, or All?

ALL: All of the above are liable. The employer is liable for the offensive work environment they
should have known about if they had simply visited to see the posters displayed, and is also liable for
the supervisor's failure to respond to the reported behavior. The individuals would be personally liable
for their harassment. The supervisor may also be personally liable for failing to take immediate and
appropriate corrective action.

Example 7: Staring and Leering

A male employee stares at a female employee too much for her comfort. He never says an
unprofessional comment, flirts, or asks her out. His stares, often at her body, seem clearly
14
inappropriate to her. When she asks him to stop staring at her chest one day, he apologizes
profusely, but the next day continues to stare. She reports this to her supervisor. In his defense, he
admits to being "distracted" by her but says she is extremely attractive and wears unusually
provocative clothing.

Question 7. Is this sexual harassment? Yes or No?

YES: According to the reasonable person standard, his conduct seems inappropriate, embarrassing
for her, and perhaps intimidating. His explanation, to blame the victim for inviting the conduct with
provocative dress, doesn't hold water. After all, she works with others in the office who are not
constantly staring. Not every look at a coworker is sexual harassment, but routinely staring at her
chest is creating a hostile work environment.

Example 8: A Reassignment

A female alleges sexual harassment against her male supervisor. In order to minimize the potential
for further allegations, and to protect both the employee and supervisor during the investigation
process, management re-assigns her to an overnight shift. Because of the overnight work, her life is
disrupted for a week and she is forced to pay double the childcare expenses for her young children.
The investigation reveals no evidence of sexual harassment, and she is placed back on the day shift.
She files a new allegation, but this time against the company.

Question 8. Does she have a case? Yes or No?

YES: The laws against retaliating against a person reporting harassment are in play here. She was
penalized and experienced economic damage as a result of simply making an allegation. In this case,
the employer is liable for retaliation against her, even if unintended.

The fact that her case ended up without a determination of sexual harassment doesn't matter. The
employer may have deterred others from reporting harassment or even being a witness in her original
case.

Example 9: Online Postings

Several female employees from an office are friends on Facebook. One night, at home, one of the
females posts a ranking of the “Best Men’s Butts At My Office” knowing that she’s only friends on
Facebook with female employees who won’t be offended. When a friend of a friend of a friend sees it,
he feels humiliated because he was ranked last. He reports this as sexual harassment.

Question 9. Is this sexual harassment? Yes or No?

PROBABLY: Probably this is sexual harassment. The person who originated the post is having an
electronic "conversation" containing sexual content with people she works with about people she
works with. There is an employment relationship between the harasser and the victim.

The conversation was "overheard." The harassment was after hours, but public to the extent that it
has a correlation to the working environment experienced by the victim from the next day forward.

The victim was objectified, sexualized, and humiliated publicly by a coworker.

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Example 10: Gender Transition

After several months of gender transition, “Deborah” has become “David.” From now on, Deborah
would like to be called David, will be wearing clothing consistent with an identity as a man, and
prefers the use of masculine pronouns.

Despite notifying management well ahead of time, a public announcement, and management and HR
having private conversations addressing coworker questions and concerns, there is still some friction.

Some coworkers inadvertently refer to David as “Debbie” and say “she” occasionally. They generally
try to correct themselves and apologize. Also, three of David’s coworkers repeatedly call David
“Debbie” and use “her.” They are not being forgetful. The offending employees simply don’t accept
the change and don’t feel they should be “forced to call her a him.”

David tells those three coworkers he considers their comments to be harassment. But, they repeat
their behavior and David reports this as sexual harassment. HR receives this report with respect and
investigates it thoroughly.

Question 10. Is this harassment? Sexual harassment? Non-sexual harassment?

SEXUAL HARASSMENT: This is sexual harassment. This is harassment based on the victim’s sex
and creates a hostile work environment.

David is now legally a man and is recognized by both society and his employer as such. The
offending employees have called a man a woman over and over again until the comments have
become pervasive and reflect a hostile intent.

Question 10A. Follow up: Who is liable for harassment? 1) His coworkers who inadvertently
misspeak, 2) His employer, 3) Three coworkers who intentionally use David’s old gender and name,
or 4) All of the above?

3) The three coworkers who intentionally harass David repeatedly are liable. In states such as
California, New York, and many other states that view gender identity and gender expression as
a protected class, their behavior is clearly harassment.

Occasional, accidental mistakes of coworkers do not create a situation of discrimination or

harassment.

The employer seemed to make a good-faith effort to address problems by thoroughly investigating
David’s concerns. The employer does not appear to be liable given the facts presented.

Example 11: This For That

A supervisor catches an employee stealing printer toner from work and selling it online. According to
company policy, the employee should be fired for theft of company property. The supervisor offers not
to report the theft in exchange for a "date" later that night. The employee reports this as sexual
harassment.

Question 11. Is this sexual harassment? Yes or No?

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YES: This is quid pro quo sexual harassment. There is an employment relationship between the two
individuals (even if the employee was immediately fired and had to submit to a "date" in order to be
re-hired, he/she would be protected as a job applicant). There is a tangible work benefit associated
with accepting the request for the date.

Both the supervisor and employer are liable for sexual harassment.

Although the theft should still result in the employee being fired and perhaps criminal charges, the
supervisor's response was negligent of duties, abusive of power, and clearly quid pro quo.

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