Monica, Paula and You
Do you think sexual harassment only happens in Washington,
D.C.?
We've been bombarded with news of sexual-harassment woes of President
Bill Clinton. We have read about the huge awards granted to plaintiffs
in sexual-harassment suits against large corporations. Often, these
problems and exorbitant settlements seem far removed from your small
business, yet according to the Equal Employment Opportunity Commission
(EEOC), sexual harassment is the nation's fastest growing area of discrimination
law. Sexual harassment is alive and growing within businesses of all
sizes throughout the United States. Sexual harassment is deemed a violation
of Title VII of the Civil Rights Act of 1964. Under federal law, all
employers with 15 or more employees are covered. However, under Missouri
statutes, all employers with six (6) or more employees must comply with
federal anti-discrimination laws and state fair employment practice
laws. Business owners need to know and understand sexual harassment
and be proactive in their attempts to identify and prevent it from occurring
within their organizations.
Sexual Harassment Defined
The EEOC
defines sexual harassment as "unwelcome sexual conduct that is a term
or condition of employment." Harassers may be coworkers, business owners
or supervisors, visitors, clients or customers. While most victims are
women, sexual harassment also targets males. Most sexual-harassment
situations occur between a male superior and female subordinate. However,
harassment cases between female superiors and male subordinates and
same-sex harassment cases are increasing.
Types Of Sexual Harassment
There are two types of sexual harassment actionable under the law:
- Quid Pro Quo, which means literally "this for that," is
the traditional demand for sexual favors in exchange for a job benefit
(e.g., a promotion, better schedule, etc.) Only a supervisor or a
member of the company hierarchy with the power to confer or withhold
a tangible employee benefit can commit quid pro quo harassment.
- Hostile Environment occurs when an employee is subjected to unwelcome
gender-based sexual conduct that is sufficiently pervasive or severe
that it alters the terms or conditions of the victim's employment
and creates an abusive or "hostile" work environment. A supervisor,
co-worker or even a nonemployee, such as a vendor or customer, can
create a hostile environment. In determining whether the conduct created
a hostile environment, the harassment must be viewed in its totality.
The more severe the conduct, the less pervasive it needs to be.
Sexual conduct that is "unwelcome" is a predicate in both quid
pro quo and hostile-environment claims. Unwelcome conduct must be
distinguished from "voluntary." Even a voluntary liaison can give
rise to a claim of sexual harassment if the employee did not solicit
it and regarded the conduct as undesirable or offensive. Determining
whether the conduct was unwelcome, or, welcome and voluntary is
often difficult. That's why it's important to have a human resources
professional, who is trained and experienced in these matters, involved
in the determination.
What Are Harassing Behaviors?
Sexual harassment may be physical, verbal or nonverbal (visual)
by a supervisor, co-worker, subordinate, supplier or customer:
Physical
- Unwelcome touching, fondling, patting, hugging, pinching, kissing,
"accidental" bumping, all the way to physical assault and rape.
Verbal
- Questions and comments about a person's sexual behavior, sexually
oriented jokes, comments about a person's body, conversations filled
with sexual innuendo and double meanings, and, sexual treats.
- Also includes using one's power or authority to attempt to coerce
an employee into complying with sexual favors.
Visual Or Nonverbal
- Displaying pornographic or sexually suggestive pictures, magazines,
calendars, written material, graffiti, cartoons or objects in the
workplace; leering, staring or ogling in a sexually demeaning manor;
making obscene hand gestures or facial expressions; revealing body
parts; and, making lewd motions with one's body, circulating sexually
oriented letters or cartoons.
Reasonable-Person Vs. Reasonable-Woman Standard
When courts examine a workplace situation to determine if sexual
harassment has occurred, they must have a standard on which to pass
judgment. The reasonable-person standard refers to the courts' view
of an individual who thinks and responds the way an ordinary, logical
and careful person would under the same circumstances. Historically,
this definition has been considered a standard for behavior in sexual-harassment
matters. For example, to successfully bring a claim for hostile-environment
sexual harassment, claimants must show that they were affected and
offended by the sexual conduct and that an objective third party—that
is, a reasonable person—would also have been offended. However,
since the majority of claims involve females as the persons being
harassed, a number of courts and the EEOC have replaced the reasonable-person
standard with a more specific reasonable-woman standard.
How Do You Prevent Sexual Harassment?
A company policy is the starting point for prevention. Employers
need to adopt a policy forbidding all forms of unwanted harassment.
This policy needs to include harassment based on age, race, sex,
national origin, religious beliefs, and disability; harassment committed
by a member of the same sex; and "virtual" harassment
(through e-mail or over the Internet, etc.) Regarding sexual harassment,
the policy needs to be very specific and as inclusive as possible.
Therefore, the policy is best developed by a human resources consultant
or employment attorney so that all of the pertinent topics are covered.
How Do You Handle A Sexual-Harassment Complaint?
Upon receiving a complaint alleging sexual (or other) harassment,
an employer must conduct a prompt and thorough investigation. Due
to the sensitive nature of these claims and the potential impact
on the workplace, the investigation needs to be performed by a member
of the human resources department staff, a human resources consultant
or employment attorney. It must be scrupulously fair, nonjudgmental
and nonpartial. An employer's failure to promptly respond to a harassment
complaint may, in itself, constitute wrongful conduct. The complaint
and investigation must remain as confidential as possible and be
disclosed only to those individuals with a "need to know."
Following the investigation, the investigator documents his or
her conclusions and recommendations. Employers must then take the
appropriate corrective or disciplinary action, if necessary, against
the harasser. Actions can range from requiring the harasser to apologize
to the victim to discharging the harasser.
Employer Liability
Employers are strictly liable for quid pro quo harassment
by one of their supervisors that results in a tangible job detriment,
regardless of actual knowledge of the harassment. For example,
if a supervisor fires an employee because she refused his advances,
the employer is liable for that supervisor's conduct. Employers
are at least vicariously liable for hostile-work-environment harassment
(when there is no tangible job detriment to the employee) if the
wrongdoer serves in any supervisory capacity over the complainant.
Coworkers and others (such as vendors or clients) can also create
a hostile work environment, which consists of intangible job detriments.
When sexual harassment is so pervasive that a hostile work environment
exists, employers are liable if they knew or should have known
about the harassment and failed to take prompt remedial action.
Liability can depend on the employers' actions once they become
aware of the harassment. As discussed previously, claims should
be investigated promptly and thoroughly, and sufficient remedial
action should be taken to eliminate the harassment. Failure to do
so can lead to higher damage awards for victims, not only under
federal law, but under state statutes as well.
Additionally, employers must ensure that there is no retaliation
against the complainant. The employer must protect the rights of
the harassee, as well as those of the accused harasser.
The Civil Rights Act of 1991 amended Title VII and expanded remedies
in sex-discrimination (which includes sexual-harassment) cases to
include compensatory and punitive damages (emotional distress, suffering,
humiliation, etc.); front and back pay; jury trials; and, lawyers
and expert witness fees. Remedies under federal statutes have limits.
However, Missouri statutes have no limits on remedies.
Do Employees Have Responsibilities?
Employers do not have all the responsibility. Employees need to:
- Understand the company's sexual-harassment policy. Treat all coworkers professionally and fairly.
- When possible, immediately and clearly inform any coworker,
supervisor or third-party (such as a customer) of behavior that
makes the employee feel uncomfortable or the employee finds inappropriate.
- Report continued harassment according to company policy.
- Cooperate in any investigation of harassment.
Conclusion
Sexual harassment creates a nonproductive, unpleasant working environment.
It may harm victims physically and emotionally and prevent them
from doing their best. Harassment is also harmful because it destroys
mutual respect and trust between coworkers and reduces productivity.
Sexual-harassment prevention and correction are essential if employers
wish to avoid liability. Business owners who fail to recognize warning
signs will invite financially crippling litigation.
Even if there were no laws regarding sexual harassment, prevention
and correction make good business sense. Harassment adds no value
to a business. To the contrary, when employees feel harassed, employers
lose the efforts that talented employees otherwise bring to the
workplace. Ultimately, business suffers.
Author's note: This article should not be construed as constituting
legal advice or pertaining to specific factual situations.
Authored by: Chris Klaser, president
of Klaser & Associates, Inc., a human resources consulting, outsourcing
and training firm. Republished by permission of the St.
Louis Small Business Monthly, The Source for Business Owners;
March 2001.
