Monica, Paula and You

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:

1. 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.
   
   
2. 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.

- Chris Klaser, president of Klaser & Associates, Inc., a human resources consulting, outsourcing and training firm. Republished with permission of the St. Louis Small Business Monthly. March 2001.