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Preventing Sexual Harassment in the Workplace

 

 

 

 

Personnelly Speaking
by Robert Palow, Contributing Editor

One of the most dangerous mines in today’s employment minefield is an allegation concerning sexual harassment by employees, clients, or customers. It seems that no matter how small or large the company, this mine is ticking and waiting to explode to place our hard work and profits in jeopardy.

This month’s column is intentionally presented in outline form to cover a myriad of elements to this legal concept and to explain how to protect yourself-from harassment as well as harassment-related lawsuits-in the workplace, as an employer, as a subcontractor, and perhaps as a representative of some of your client companies.

First the history will be developed; then the current environment of the harassment claims will be described; finally, suggestions will be offered as to how to protect yourself from liability as well as unwelcome advances.

  1. Introduction

    1. Sexual harassment has been a problem for women as long as they have worked outside their homes. Sexual harassment was documented in the federal government as early as the 1860s, when women were first employed as Treasury Department clerks; it was the subject of some of the earliest Congressional investigations.
    2. The problem persists.
      1. A survey conducted by the U.S. Merit Systems Protection Board in 1994, relating to sexual harassment in federal government, indicated that 44% of the women and 19% of the men questioned had experienced some form of harassment. These percentages were consistent with studies that had been conducted in 1980 and 1988. (Note, however, that the definition of harassment used in 1994 survey was broader than the legal definition).
      2. A study released in 1990, relating to sexual harassment in the military, revealed that two of every three women, or about 64%, said that they had been sexually harassed either directly or in more subtle ways such as catcalls, dirty looks, and teasing. Among the men surveyed, 17% said that male or female colleagues had harassed them.

  2. The Impact of Sexual Harassment

    3. It is important for all workers, regardless of whether they have been or may be the victims of sexual harassment, to understand that harassment will not be tolerated. This means that employees-male and female-must understand the importance of eliminating harassment and make clear that they are also committed to freeing the workplace of harassment. This also means that just as employers must take all sexual harassment complaints seriously, employees must do the same.

    1. Sexual harassment has an economic impact on the workplace.
      1. Studies of federal government workers by the U.S. Merit Systems Protection Board estimate that sexual harassment cost the government $267 million in a two-year period in lost productivity and turnover. (A more recent 1994 MSPB survey indicated that the amount had increased to $327 million; however, the MSPB attributes this increase more to inflation than to lost productivity, additional sick leave, etc).
      2. A study by Working Woman magazine found that sexual harassment costs the typical Fortune 500 company $6.7 million a year in increased absenteeism, employee turnover, low morale, and low productivity.
    2. Sexual harassment has a psychological impact on workers.
      1. Only 5% of the government employees who indicated in the 1988 U.S. Merit Systems Protection Board survey that they had been harassed, actually filed formal complaints or requested investigations.
      2. A 1988 survey by Working Woman magazine found that fear of retaliation was cited as the primary reason for not reporting harassment. Others indicated the fear of not being taken seriously and the fear of being labeled a victim or troublemaker as additional reasons why victims of harassment chose not to pursue claims.
      3. The psychological symptoms and effects of sexual harassment include anger, fear, depression, anxiety, irritability, loss of self-esteem, feelings of humiliation, embarrassment, shame and alienation, and a sense of helplessness and vulnerability. Physical symptoms may include headaches, loss of appetite, gastrointestinal disorders, inability to sleep, weight loss, and crying spells.
    3. There is no "typical" victim of sexual harassment.
      1. Women are subject to sexual harassment regardless of age. A study by Crull ("The Impact of Sexual Harassment on the Job," Sexuality in Organizations, 1980) found victims ranging in age from 16 to 65.
      2. Women are subject to harassment regardless of marital status, and regardless of whether they are blue collar workers, clerical workers, or professionals.
      3. Men can also be the victims of sexual harassment.
      4. Male or female employees subjected to the unwelcome advances of colleagues or supervisors of the same sex may also bring a claim of sexual harassment.
      5. Employees who have been affected by sexual activity in the workplace may also be victims of harassment.

  3. Guidelines for Employers: Preventing Sexual Harassment in the Workplace

    4. EEOC guidelines encourage employers to "take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise, the issue of harassment under Title VII, and developing methods to sensitize all concerned."

    Basics of an effective program:

    1. Employers should have an explicit written policy against sexual harassment that is communicated clearly and regularly to all employees. Such policies are important in preventing harassment, and also in limiting liability if charges of harassment are made.

      2. Kimzey v. Wal-Mart Stores, Inc. 1995 is a good example. Despite complaints by female employees of supervisory and managerial harassment, upper management had taken no corrective action against offending parties. Kimzey’s supervisor (the offending party in this case) testified that he had received no sexual harassment training from Wal-Mart. The Jury awarded $50 million in punitive damages to Kimzey, but because Wal-Mart did have a written policy in place that sexual harassment violations "would not be tolerated," this award was reduced to $5 million.

    2. Similarly, an effective training program is key to any effort to eliminate sexual harassment from a particular workplace. Training should be continuing and directed to both management and non-management employees. Programs should be tailored to the workplace. Training programs can include lectures, discussion groups, role-playing, and dramatizations. Whatever the nature of the training, it should impress upon all employees the economic consequences of sexual harassment-adverse effects on productivity, corporate reputation, and job turnover-in addition to the costs of investigation and litigation.
    3. Employers should raise the subject of sexual harassment with all supervisory and non-supervisory employees, express strong disapproval of harassment, explain the sanctions for harassment, and impose sanctions for harassment where appropriate.
    4. Employers must have a procedure for investigating complaints that encourages complainants to come forward, treats all complaints seriously, does not require the victim to complain to the offending supervisor, is as confidential as possible,1 protects the victim and potential witnesses from retaliation, and moves as quickly as possible.2
    5. Failure to file a formal complaint should not eliminate the employer’s duty to respond.
    6. Employers should apply sanctions consistently and in a timely fashion. The employer’s response is ineffective if it is unduly delayed and if action taken, however promptly, is unlikely to prevent the misconduct from recurring.
    7. Concerns of alleged harassers should be considered carefully in any internal grievance procedure and accompanying investigation.
    8. At the investigation’s conclusion, both complainant and alleged harasser should be informed of the results of the investigation. No matter the outcome, complainants should be advised of their right to report any further harassment.
    9. Employers should follow up on individual cases to make sure that whatever actions have been taken are working.
    10. In a union setting, employers must balance the obligations of the employer to maintain harassment-free workplace, with the rights of alleged harassers who subsequently challenge employer sanctions through arbitration. Unions play an important educational and preventive role. They need to inform members regarding the need for a harassment-free workplace. In particular, union stewards should be trained to enable them to perform their roles more effectively.
    11. Sexual harassment policies and complaint procedures should be evaluated and updated regularly.

  4. Handling Sexual Harassment in the Workplace

    1. While EEOC guidelines and the courts have made it clear that employers have a duty to maintain workplaces that are free of discrimination, it is also true that employees have a duty to educate themselves about the presence of harassment and how to deal with it, and to inform the employer of such behavior whenever possible.
    2. Accordingly, employees who are or who might become the victims of harassment should consider the following practical steps:
      1. When confronted with sexual harassment, clearly communicate to the harasser(s) that the "attention" is unwelcome: unwanted and uninvited. Employees should communicate in a way they find comfortable, either face to face or in writing. They should keep copies of any letters or memoranda that they send. (Respondents to the MSPB survey of federal employees suggested that more emphasis be placed in sexual harassment training on learning to be assertive).
      2. Even if employees eventually submit to an employer’s advances, they may make out a claim under Title VII if they can show that the conduct was unwelcome.
      3. Unwelcome conduct is defined as conduct not solicited or instigated by the employee and conduct regarded as undesirable by the employee.
      4. Unwelcomeness is determined by objectively verifiable conduct, not employees’ subjective indignation. The Courts have found that a plaintiff’s diary entries, indicating her "individual interior concern” about the actions of her harasser, did not constitute objective conduct because she failed to communicate these concerns to the employer. Instead, the court looked to the plaintiff’s behavior at work, where she joined in as "one of the boys".
      5. The existence of a contemporaneous complaint or protest will strengthen a claim that the behavior was unwelcome. However, such a complaint is not necessary. Where an employee never verbally rejects the supervisor’s sexual advances, yet there is no contention or evidence that the employee ever invited them, evidence that the employee consistently demonstrated unalterable resistance to all sexual advances is enough to establish their unwelcomeness.
      6. The EEOC also recognizes that victims need not always confront the harasser directly, as long as their conduct demonstrates that the harasser’s behavior is unwelcome.
      7. Similarly, employees who are asked to stop any unwelcome conduct should take such requests seriously, and stop.
      8. Keep in mind that harassers may be co-workers, customers, or clients as well as supervisors. Employers have a duty to respond to the employee’s concerns about this as well. The employer may be liable for harassment caused by acts of the employer’s customers or independent contractors in situations where the employer has knowledge of such harassment and does not correct it.
      9. Harassment can involve such things as pornography or other offensive pictures or other objects. For example, the posting of obscene cartoons in a men’s room at plaintiff’s workplace bearing someone’s name and depicting her engaged in sexual activity could create a hostile environment. (If the harassment includes offensive pictures displayed in the workplace, let colleagues know the pictures are offensive).
      10. Report the problem to whoever supervises or is superior to the harasser, asking that the harassment stop. Where the harasser is a customer or client, inform your supervisor and ask that the harassment be stopped.
      11. If you are harassed and an explicit request to stop has not worked, keep a written record of what happens. Make the record as soon as possible after anything occurs, so the incident is fresh in your memory. Keep the record at home, not in your desk or locker at work. Similarly, save any notes or letters received from your harasser. Such a record might include:
        1. Who said what? Did what? When?
        2. Were there witnesses? Who?
        3. What was your response?
        4. How did you feel about having been harassed? (Angry? Humiliated? Sick?)
      12. If you are harassed and you suspect that other workers may have been treated similarly, talk to them; joint action may be possible. If you can, discuss the problem with co-workers so they are aware of what is happening and that you are upset about it. Suffering in silence may backfire, if later action rests only on your word against that of the alleged harasser.
      13. Be careful about engaging in sexual banter and profanity on the job. While such remarks may not necessarily preclude a claim of sexual harassment, it may be difficult to show that other remarks and/or behavior were unwelcome.
      14. If an employee has previously engaged willingly in sexual conduct in the workplace, he or she has an affirmative duty to notify the harasser that continued conduct is unwelcome. It is not merely enough to stop participating in the conduct.
      15. As is the case with participation in sexual banter, when a formerly consensual sexual relationship (between co-workers or between employee and supervisor) sours, the employee has an affirmative duty to notify the offending party that continued conduct is unwelcome.
      16. If your company has an internal complaint procedure or if a union represents you, file a formal grievance.
      17. If it becomes necessary, talk to the local office of the Equal Employment Opportunity Commission, your state or local human rights agency, or a private attorney. Even if you decide not to pursue a claim in court, it is always a good idea to know your legal options.

In this discussion of sexual harassment, I have provided a list of suggestions and antidotes to help prevent and/or protect you from the inevitable claim of harassment against you, as employer, or the possibility of unwanted advances toward you.

1One plaintiff brought a Title VII claim alleging harassment by coworkers and supervisor. She claimed, among other things, that the police department failed to keep her complaint against her alleged harasser confidential, which caused her to be subjected to further verbal harassment and isolation by classmates and the supervisory officer, who regarded her as a "squealer."

2In a recent case, an employer was found not liable for the hostile environment created by a mid-level manager where the employer (a) had done nothing to indicate that the behavior complained of would be tolerated, (b) has a strong policy against sexual harassment, and (c) has taken prompt remedial action. In another case, an employer was found not liable for the behavior of its manager where it reprimanded and transferred the manager as soon as notice of sexual harassment was received; however, the manager was transferred back and the plaintiff was discharged, so the case was remanded to determine whether the employer’s actions were a sham.

About the author
Robert Palow is president of RP Consultants, a Placentia, CA based company that specializes in labor and employment practices. He has more than 30 years of management and legal experience in the human resource field.

ABSSI / Industry Focus / March 2000

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