In recognition of April’s Sexual Assault Awareness Month (SAAM), TMI Action will investigate how this issue affects the workplace. In general, cooperation between colleagues is respectful, but in certain circumstances, there is an opportunity for unwanted situations to arise. Below is an incident of sexual misconduct that took place at the Grand Canyon River District (GCRD) of the National Park Service (NPS), in 2008.
“Employee 6 said she suspected that Boatman 3 might have taken sexual advantage of an intoxicated woman during a 2008 river trip. She said that the woman, whom she declined to identify, became intoxicated in camp one night and fell asleep. Later in the evening, Employee 6 observed Boatman 3 lying next the woman, who was still asleep. When Employee 6 asked him what he was doing, she said, he stood up, buckled his pants, and walked away.” Investigative Report of Misconduct at the Grand Canyon River District.
Let’s discuss the scenario above by looking at it from a few different angles, to understand if and how this scenario is a workplace problem, specifically:
- Intoxication & Consent
- The Spectrum: sexual harassment -> sexual assault
- Off hours conduct; How does it affect the workplace?
Intoxication & Consent
Arizona Revised Statue “13-1406. Sexual Assault; classification; increased punishment – A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.” Based on this state law, if the subject did not consent to sexual activity, then it is classified as rape. Here are two things to consider when discussing consent:
- When is someone legally unable to give consent? An individual is legally unable to give consent when they are under the influence of drugs or alcohol. Unlike drinking and driving, there is no breathalyzer for consent; this means that mixing drugs, alcohol, and sexual activity are high risk activities, even though these habits may be viewed as socially acceptable.
- What are some examples of someone being too intoxicated to give consent? Passed out, fading in and out of consciousness, slurred speech, vomiting, can’t walk.
Although, every state has different classifications and sentencing for sexual assault, there are commonalities for each state law. Make sure you understand your state’s sexual assault laws.
The Spectrum: Sexual harassment -> Sexual assault
Although the NPS Sexual Harassment Policy does not specifically use the term “sexual assault,” it does define sexual harassment with a physical component; “Sexual Harassment is defined as deliberate or repeated unsolicited […] physical contact of a sexual nature which is unwelcome.” Therefore, this policy does protect employees who have experienced non-consensual sexual activity.
Many workplaces do not use the term “sexual assault” in their policies, but when they define sexual harassment they include a physical aspect to the definition. This is important. Often employees don’t understand how they are protected from these egregious acts, because they don’t see the terminology that describes their experience.
The bottom line? Employees are protected by the sex discrimination category, of the Civil Rights Act.
Off hours conduct; How does it affect the workplace?
Finally, this incident may not appear to have happened in the “workplace” or during workplace hours. Although this workplace is anything but traditional, based on the NPS sexual harassment policy, it does not matter when/where the actions took place; “Unlawful sexual advances, whether verbal or physical in nature, constitute sexual harassment when: […] conduct has the purpose or effect of interfering with the work performance or creates an intimidating, hostile or offensive work environment. […] sexual overtones that is intimidating or offensive to the recipient or to one who observes such behavior or displays.” In laymen terms, if there is an intimidating, hostile, or offensive workplace environment that is due to conduct that occurred off or on hours, this a problem that must be addressed by the employer.
TMI Action can help your company create an inclusive, safe and productive workplace through effective, high-quality employee and supervisory training.