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SEXUAL
HARASSMENT IN THE WORKPLACE;
NAVIGATING THE
MINE
FIELD
Introduction:
Recent U.S
Supreme Court decisions have expanded the scope of potential employer
liability for sexual harassment, but also made certain defenses available
to the employer in certain circumstances.
These cases have been instructive to the conscientious employer as
to how best to protective itself from liability for the sexually harassing
conduct of its employees.
Background:
Sexual
harassment is a form of discrimination on the basis of sex that is
prohibited by Title VII of the U.S. Civil Rights Act of 1964, as amended,
as well as numerous state statutes. The Equal Employment Opportunity
Commission, which enforces Title VI, defines sexual harassment as unwelcome
sexual advances, requests for sexual favors, and verbal or sexual conduct,
which occurs under any of the following three conditions.
1.)
Where submission to the conduct is either implicitly or explicitly
made a term or condition of employment;
2.) Where submission to or rejection of such conduct is
used as a basis for decisions
regarding
employment decisions;
3.)
Where the conduct has the
purpose or effect of unreasonably interfering with an individual’s work performance or
creating an intimidating, hostile or offensive work environment
The critical factor that makes
the sexual behavior unlawful is that it is unwelcome by the recipient.
The law
in this area has been developing over the past decade to impose greater
liability on the employer for harassing conduct on the part of its
employees with the result that complaints for sexual harassment filed with
the EEOC have tripled since 1990.
Most executives are aware of the sometimes massive verdicts against
employers which reach the newspapers, but may be unaware of the tremendous
cost, in terms of both attorney’s fees and lost management time, to
defend a sexual harassment claim even where liability is ultimately
avoided. The prudent employer is,
therefore, well advised to learn the lessons of the Supreme Court’s
recent opinions.
Same Sex Harassment
The
courts have now responded to the question “who can be harassed”
and ruled that same
sex
harassment is actionable. The court
ruled, relying on the language of Title VII, that such harassment is
actionable if it is based on sex, whether or not it is motivated by sexual
orientation or desire. The opinion is, unfortunately uninformative as to
what types of same sex conduct not motivated sexual orientation or desire
might constitute unlawful same sex harassment.
Vicarious Liability
Tangible Job Action; No
Defense
The
employer will be automatically liable
for harassment by one in a supervisory capacity where the complainant has
experienced a tangible job action as a result of the harassment. “Tangible job action” is a
significant change in the employment conditions of the complainant such as
promotion/demotion, change in rate of compensation, discipline, etc. The employer has no affirmative defense
to this type of harassment and faces liability automatically if the
employee suffered this harm if the employer knew or should have known this
was taking place.
No Tangible Job Action: Defense
Available
Where
no tangible job action is at issue, the employer has an affirmative
defense to a sexual harassment claim where the employer can show: 1.) That
the employer used reasonable care in preventing and correcting sexually
harassing behavior and 2.) The employee unreasonably failed to use
the employer’s internal complaint procedures to report the
harassment.
In
other words, if the employee can show that it discharged its duty of
reasonable care and that the employee could have avoided the harm, but
unreasonably failed to do so, the employer will avoid liability for
unlawful harassment. More importantly, if the employer effectively
discharges its duty of reasonable care in preventing and correcting
sexually harassing behavior, harassment will be avoided, and issues of
liability and the attendant costs of litigation, will not have to be
reached. It is therefore in every
employer’s economic best interest to institute policies and
procedures designed to prevent and correct sexual harassment in the first
place, and best position the employer defensively should a harassment
charge be brought.
What Should Employers
Do?
- Establish, publicize and enforce written
anti-harassment and complaint procedures. Obtain experienced legal
advice as to its drafting.
Provide a copy to each employee and redistribute it
periodically.
Post the policy in central locations and incorporate it
in the employee handbook, if any.
Provide training to all employees, if feasible, and at
least to managers, to ensure
that they understand their rights and responsibilities
with regard to the policy and
complaint procedure.
The anti-harassment and complaint procedure should
contain, at a minimum the
following components:
A clear
explanation of the prohibited conduct;
Assurance
that employees making a complaint of harassment or cooperating the
investigation of alleged harassment will not be retaliated against;
A clearly described complaint process, affording
multiple avenues of complaint;
Assurances of a prompt, thorough and impartial
investigation of the complaint;
Assurance that the employer will keep the investigation
confidential to the extent possible; and
Assurance that the Employer will take immediate and
effective corrective action if harassment is found to have occurred.
- Monitor the Workplace.
An employer is responsible for
sexual harassment and other forms of discrimination it knew or should have
known existed, whether or not a complaint has been made.
For example, if there is graffiti in the workplace that
contains sexual or racial epithets that are offensive, the employer should
have it removed.
Check back periodically with any employee who has complained
of sexual harassment to make sure it is not recurring.
Pay close attention to areas of the company where
employees of predominantly one sex are employed or where supervisors of
only one sex exist.
3. Periodic
Training and Monitoring of Mangers
and Supervisors
Train
to ensure that supervisors and managers understand their responsibilities
under the established anti-harassment and complaint procedure and include
compliance in their performance reviews. There are services that provide
such training and any good employment attorney can perform these on a
regular basis.
- Investigate.
Investigate all claim of sexual
harassment or other types of discrimination promptly and thoroughly. Select
an investigator experienced in handling such complaints.
5. Take
Prompt Effective Action.
Where
an investigation reveals that harassment is found take immediate action,
including termination if indicated, to ensure that the harassment
stops. Even where no harassment was
found to have occurred, or where the investigation was inconclusive,
re-familiarizes the alleged harasser with the employer’s policy
against harassment and against retaliation.
6. Insurance.
Consider
obtaining insurance coverage for employment practices. Note such insurance
will normally not cover intentional wrongful acts of the Employer, so be
sure to have the policy carefully reviewed by the broker or attorney.
The
prudent employer in today’s employment environment will institute and
enforce an effective sexual harassment prevention program and complaint
procedure, designed to prevent unlawful harassment in the first instance
and place the employer in the best defensive position if a harassment claim
is made.
The law
is not a “fad” nor is it going to disappear. It is both federal
and state and is likely to become increasingly enforced. The wise employer
will understand that adjusting to the requirements of the law, both
practical and legalistic, is just one more business skill required of the
professional business manager.
These Articles are
to give the reader a general description of certain areas of the law. Legal
advice is necessary to apply these legal concepts to your particular
situation. The Reader should obtain competent legal advice before
relying on the Articles.
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