CHAPTER 10: SEXUAL HARASSMENT

Overview

The Equal Employment Opportunity Commission (EEOC) has published guidelines on sexual harassment, which in summary say that unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

• submission to such conduct is made a condition of employment, or

• submission to or rejection of such conduct is used as the basis for employment decisions, or

• such conduct has the purpose or effect of unreasonable interference with an individual's work performance or creates an intimidating, hostile or offensive working environment.

In addition to the publication of a corporate non-discrimination policy, you need to specify the persons to whom complaints of harassment or any other form of discrimination may be directed. In effect, an employer needs a policy and a mechanism to enforce the policy fairly and equally to all concerned. Because the threshold of offensiveness varies among individuals, and because avoidance of harassment is so important in the work place, supervisors and managers need to be aware of this issue. 

Following are some dos and don'ts to help avoid problems with sexual harassment in your organization:

• Do write and distribute a clear statement of the company's position on harassment of employees and visitors to the workplace.

• Do set a good example as a member of management.

• Do take any complaints seriously, even if your initial judgment is that the complaint is trivial or unwarranted.

• Do investigate complaints and take corrective action.

• Do inform the person who complained what action was taken.

• Don't use your management position to request personal favors of any kind.

• Don't wait for a complaint, if you personally observe something that is likely to be offensive.

• Don't retaliate against the person who filed the complaint.

It is discriminatory to base an employment decision on an employee's submission to, or rejection of, unwelcome sexual advances, requests for sexual favors, or any verbal or physical conduct of a sexual nature. It is also discriminatory if such conduct unreasonably interferes with an employee's work performance or creates an unreasonably offensive working environment.

The employer is responsible for any such violation committed by an agent (for example, manager, supervisor, foreman). The employer is also responsible for sexual harassment committed by a non-supervisory employee, or even a non-employee (for example customer or client), if the employer knows or should know of the conduct and fails to take reasonable corrective measures.

Types of sexual harassment commonly complained of include:

• Comments, innuendoes, jokes of a sexual nature (watch out for e-mail "jokes")

• Leering or ogling

• Unwelcome invitations to engage in sexual activity

• Physical touches of a sexual nature

• Brushing against the body "accidentally", friendly pat or squeeze

• Pressure to engage in sexual activity as a condition of employment or promotion

• Posters, calendars or video displays featuring nude or scantily clad men or women

• Sexual assault.

The EEOC guidelines on steps an employer should take to prevent and correct sexual harassment:

• Directly address the subject of sexual harassment and explicitly disapprove of such conduct.

• Define and implement a formal complaint process and advise all employees how to raise claims of sexual harassment.

• Educate and sensitize the work force about claims of sexual harassment. 

• Even if the victim does not want to take action, the employer should take action and correct the problem immediately.

• Insure absolute commitment by management to create a harassment-free environment.

The selection of the right investigator is critical to a successful investigation of a complaint.  The first task of the investigator will be to determine whether or not the employer has a good sexual harassment policy, and whether it takes proper and prompt steps to prevent sexual harassment. The wrong investigator can discourage harassment victims from reporting valid claims, ask inappropriate or misleading questions during the interview process, or disclose sensitive information. Therefore, it is vitally important that the investigator be chosen carefully.

A good investigator should be properly trained and objective. The individual should be skilled in interviewing witnesses, tough enough to ask difficult questions, yet sensitive enough to get honest answers. An outside investigator may be a good choice in some situations, particularly when a high-level executive is the alleged harasser.

Put all statements in writing, and date and sign them. A record should be kept of all meetings, and should be stored in a special, secure file, not in an employee's file, or any publicly accessible file. Also, try to record statements as accurately as possible, as opposed to inferring information from them.

Discuss the matter thoroughly. The following are some questions that may help draw out pertinent information:

• Explain the actions the company has taken.

• Make it clear that the company encourages employees with complaints to contact management.

• Remind the employee that the company forbids sexual harassment.

• Ask the employee to report any other occurrences.

• Ask the complainant not to quit.

• Offer the complainant time off and paid counseling.

The New Liability Formula

Employers should be aware of the new liability formula the court has established and what policy and procedures they should have. Employers who do not have a clearly written anti-harassment policy, including a readily-accessible and effective complaint procedure, or who do not effectively and regularly disseminate those policies and procedures to their entire workforce, will be almost defenseless in cases where a supervisor engages in sexual harassment.

The court has bypassed the traditional distinction between quid pro quo and hostile environment harassment and ruled that an employer is liable to an employee for sexual harassment by a direct supervisor.

The Defense

The employer may defend itself by showing that:

• It took reasonable care to prevent and correct promptly harassing behavior (for example, that it had a policy against harassment that was communicated to employees and an effective complaint procedure)

and

• The employee unreasonably failed to take advantage of the corrective or preventive opportunities the employer provided

but

• The defense does not apply if the harassment has resulted in a tangible employment action, such as demotion or termination.

The result is that an employer now can be automatically liable for a supervisor's sexual harassment even if the employer has no actual knowledge of the illegal acts. 

Under prior law, employers generally were held liable for quid pro quo sexual harassment if the employee suffered a tangible job detriment for refusing the supervisor's advances, In all other circumstances, such as a hostile environment situation or a quid pro quo situation involving only unfulfilled threats, the employer was held liable only if the employer was negligent (in other words, if the employer knew or should have known about the harassment and failed to take prompt and appropriate action).

The following actions, in the wake of these court decisions, could reduce your company's exposure:

• Implement or supplement training provided to managers and supervisors so that they know how to identify objectionable behavior, how to respond when complaints are raised, and how to investigate complaints.

• Review application and selection procedures for supervisory and management personnel. More thorough background checking, interviewing and lawful employment testing may held avoid hiring people who are likely to compromise the employer. These procedures should also be reviewed to ensure that supervisors and managers understand the employer's sexual harassment policy, make a commitment to comply, and understand the consequences of violating the policy.

• Provide for strong discipline for harassers.

• Provide for strong discipline for retaliation.

• Consider developing institutional checks on the authority of lower-level supervisors and managers, such as requiring that at least 2 management persons be responsible for all significant employment decisions, so as to reduce opportunities for abuse of that authority.

• Emphasize zero-tolerance of sexually inappropriate behavior. Include specific examples of inappropriate behavior.

• Review and revise existing sexual harassment policies to ensure compliance with applicable law.

• Expand policies beyond just sexual harassment to prohibit other unlawful harassment based on age, disability, race, color, national origin, religion, etc.

• Review policy implementation and communication procedures. A written sexual harassment policy does nothing to reduce the employer's potential liability unless it is properly drafted and effectively communicated to all employees. The employer's harassment policy can be addressed in new employee orientation, employee handbooks and at the time of promotions. Effective communication may include some level of sexual harassment training.

• Encourage employees to report harassment, whether or not they are a victim.

• Review existing complaint procedures to ensure that the process is effective, understood by all employees, and available without risk or expense. As part of this review, consideration should be given to establishing a special complaint procedure when the alleged harasser is a high company official.

• Take complaints seriously.

The U.S. Supreme Court has held that "same-sex harassment" may violate Title VII of the Civil Rights Act under some circumstances if the offensive conduct was "because of" the victim's sex. These claims are only when the harasser is a homosexual or bisexual.

(Howard Parker - Chicago)

EXAMPLE POLICY

EXAMPLE COMPLAINT PROCEDURE

OTHER SOURCES