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The Truth
about Sexual Harassment
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Employers
need to have a policy in place and be aware that they are potentially
liable for sexual harassment based on their employees’ behavior.
By Joyce Romine
Sexual harassment still creeps into companies—but can you recognize
it when you see it? Is that e-mailed off-color joke you forwarded
to a co-worker considered sexual harassment? Can you be held responsible
if your employees are “cat calling” to women in front of your building?
Are the policies in your employee handbook enough to protect you
from a sexual harassment lawsuit? The answers are as varied as the
questions.
“Sexual harassment is a nebulous area,” says Stephen Martin, attorney
and partner of Barklage, Barklage, Brett, Martin and Wibbenmeyer,
P.C. in St. Charles. “It has multiple definitions so it makes the
issue very complicated.”
For example, the EEOC (Equal Employment Opportunity Commission)
guidelines define sexual harassment as unwelcome sexual advances,
requests for sexual favors and other verbal or physical conduct
of a sexual nature that affects either promotions or demotions,
or interferes with an individual’s work performance by creating
a hostile, intimidating or offensive work environment.
And there’s no room for employers to stick their heads in the sand.
“Employers need to be aware that they are potentially liable for
sexual harassment based on their employees’ behavior,” says Dennis
Collins, attorney for Greensfelder, Hemker and Gale, P.C. “Courts
apply different standards of liability depending upon the person
engaged in the harassment.”
With supervisory sexual harassment, an employer is responsible for
sexual harassment by its supervisors that result in job interference.
With respect to conduct between fellow employees, an employer is
responsible for acts of sexual harassment in the workplace if the
employer knows or should have known of the conduct, unless the employer
can show that it took immediate and appropriate corrective action.
“To constitute sexual harassment, the conduct must have been unwelcome,”
Collins says. “In court, the determining factor is how a person’s
conduct is received, no matter how an action is intended. However,
the EEOC and most courts recognize that a single or isolated incident
of offensive sexual conduct or remarks normally doesn’t create a
hostile environment—unless it is sufficiently severe, such as a
sexual assault. The EEOC guidelines indicate that hostile environment
claims generally require showing a pattern of offensive conduct.”
Protect Your Company
The first step in protecting your company from a sexual harassment
suit is having a good, thorough policy in place. “It should explain
all possibilities of sexual harassment and clearly demonstrate that
the company strongly prohibits that behavior,” Martin says. “The
company needs to set the highest standards and expect the highest
standards in the policy manual, and then take any and all steps
necessary to prevent sexual harassment in the first place. Just
posting a policy on a bulletin board is not enough.”
Martin admits there isn’t just one right thing to do to prevent
sexual harassment but by raising the conscious level of employees
and enforcing policies, a company is more protected.
A good start is placing articles in company newsletters and conducting
employee workshops to educate employees about sexual harassment.
It’s also essential for a company to express “strong disapproval”
about sexual harassment—an EEOC requirement. “Companies need to
have a series of progressive disciplinary actions that are enforced
so word gets out to employees that sexual harassment isn’t tolerated,”
Martin says.
But, he adds, the steps considered “necessary” to educate employees
can vary dramatically from company to company. “It depends on the
setting,” he says. “For example, how you address sexual harassment
in a company with 200 men in a factory and one woman rarely out
of her office would be different than in a factory with men and
women working side by side. In the latter case, a company would
have to be much more vigilant about sexual harassment prevention.”
Because sexual harassment issues are very complex, Martin advises
getting legal assistance when developing policies.
Crossing the Line
In broad terms, any conduct that creates an offensive atmosphere
for an employee or that affects work performance may be considered
sexual harassment. So is that off-color joke just politically incorrect
or is it actual sexual harassment?
Tim Schranck, an attorney with McMahon, Berger, Hanna, Linihan,
Cody and McCarthy, says the line between being “politically incorrect”
and violating the law seems to get fuzzier every year. “Using profanity
with your employees or referring to female employees as ‘girls’
used to be common, but today, using that kind of language is not
only bad management, it can also be illegal under certain circumstances,”
he says. “With each new sexual harassment or sex discrimination
lawsuit filed—and thousands are filed every year—judges are being
asked to tell employers what is, and what is not, acceptable behavior
in the workplace.” He adds, “because companies have better things
to do than read court opinions” a big part of his job as labor counsel
for employers is “providing advice to help clients navigate this
legal minefield on a day-to-day basis.”
Martin says the law must constantly address new situations related
to sexual harassment. “More litigation means more examples to draw
from,” he says. “Just when you think you know the law, it changes.
What’s safe to do today may not be tomorrow.”
So how do you handle a harassment complaint? There are many steps
involved, but it’s important to treat the complaint seriously, and
remember that it’s only an allegation until it’s substantiated,
Collins advises. “Act quickly and be sensitive and objective as
you gather all the facts,” he says. “Ask the complaining employee
to write out a factual statement with details and dates, including
the name of the accused harasser and any witnesses. Also interview
the person being accused and get a written statement responding
to the accusation and names of witnesses for support.”
Collins adds that if an employer is aware of a situation that could
be considered sexual harassment, it’s their obligation to address
it even if no complaints have been voiced.
Schranck says that some employees and supervisors make the mistake
of believing they can handle sexual harassment complaints “off the
record,” particularly when employees say they do not wish to file
a formal complaint. “If you tell your supervisor at the water cooler,”
Schranck says, “in the eyes of the law, you just told the CEO. There
is no such thing as an informal complaint—the company must act.”
But the good news is employers usually win sexual harassment lawsuits.
“Many times a disgruntled employee is just trying to get back at
an employer and that becomes evident in a trial,” Martin says. “But
without strict sexual harassment policies in place that are consistently
enforced, the outcome of a lawsuit could be different for a company.”
Joyce Romine is a St. Louis-based writer and owner of Streamline
Communications. |
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