By Ms. Asmara Shafaq
Despite widespread publicity about the perils of sexual harassment, surveys demonstrate that many companies in private and civil sectors have yet to address the problem. Moreover, recent news reports indicate that sexual harassment has reached the highest levels of management. Although employers know it exists, they appear unsure of what to do about it. As a result they can be held liable for any sexual harassment that occurs in the workplace. However, if they take reasonable care to prevent and correct harassment, they will not be liable. The following article looks at the elements of reasonable care that will greatly reduce the risk of sexual harassment liability.
PREVENTION:
Armed with a basic understanding of the laws which prohibit sexual harassment in the workplace, we now come to the individual employer’s most important question: What can I do most effectively to insulate my business from the type of environment which foments such claims? This is indeed a critical question in light of 1) the well-documented prevalence of sexual harassment in the workplace and 2) the possibility that an employer will, at one or more times during its existence, be compelled to defend sexual harassment claims regardless of whether they be meritorious or truly devoid of merit. Proper preparation, such as promulgation of thorough policies and procedures for dealing with such claims, will be invaluable in an employer’s efforts to withstand claims that are totally devoid of merit as well as those which may be somewhat less clear cut. First, one should know who will be held accountable and under what circumstances.
Tangible Job Benefit Harassment
In cases of tangible job benefit sexual harassment, an employer will be held strictly liable. The principles of agency will apply and an employer will thus be held liable for the unlawful acts of its supervisors or agents. An employer may nonetheless successfully mitigate its damages or even avoid a finding of liability altogether if it promptly and effectively makes the aggrieved employee whole for his or her loss and takes appropriate action to ensure that there can or will be no repetition of the conduct complained of.
Hostile Work Environment Harassment
Employer liability for hostile work environment sexual harassment is not so clear. It is dependent upon the status of the individuals who are responsible for creating the allegedly offensive work environment, the ability of the employer to discover its existence and the employer’s prompt and forthright attempts to correct or eradicate the problem once knowledge of it has been acquired.
Clearly, the more authority possessed by the supervisory-type employee, the more easily it will be found that he or she speaks for and binds the employer by his or her acts. Thus, an employer may be bound by the harassing acts of a supervisor more readily than by those of a victim’s non-supervisory co-workers. However, it should be noted that there may even be instances in which an employer will be found liable for unlawful sexual harassment perpetrated not by its own employee, but by a non-employee third party. This may occur more readily in a service- type business in which a patron or client of the employer is the individual responsible for creating a hostile or offensive work environment.
Condonation
In those situations in which an employer’s liability for the creation of a hostile work environment is premised upon acts of low-level supervisors, co-workers or non-employees, the crucial questions in determining whether liability will attach are:
* Did I as the employer know what was going on?
* If I didn’t, should I have?
* Now that I know about it, what am I going to do about it?
In US Equal Employment opportunity commission (EEOC) Guidelines suggest that where an employer knew or should have known about the conduct underlying the hostile work environment and did nothing to correct it or acted too slowly to correct it acted insincerely, liability is likely to attach. Employer Condonation of a hostile or offensive work environment is thus the single most important element in assessing an employer’s exposure both in terms of liability and damages. Fortunately, it is also the element which an employer has most within its power to change.
REMEDIES AND STEPS TO TAKE
Following steps and remedies should be considered to create a harassment free work environment.
A Sexual Harassment Policy
Companies that want to manage their risk prudently must act before a problem occurs. Employers must be encouraged 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 and developing methods to sensitize all concerned.
First, companies need a comprehensive, detailed written policy on sexual harassment. The CEO should issue the policy and make it a high priority of the company. Second, they need to distribute this policy to all workers, supervisors, and even some non-employees. A basic policy should set forth the following:
- An express commitment to eradicate and prevent sexual harassment;
- A definition of sexual harassment including both quid pro quo and hostile work environment;
- An explanation of penalties (including termination) the employer will impose for substantiated sexual harassment conduct;
- A detailed outline of the grievance procedure employees should use;
- Additional resource or contact persons available for consultation;
- An express commitment to keep all sexual harassment complaints and personnel actions confidential.
To help employees grasp the nature of sexual harassment, companies may want to provide their workers with examples of behavior that they consider inappropriate. Companies should warn employees against posting suggestive photographs, telling sexual jokes or making innuendoes, or romancing subordinates. Workers should be advised against referring to female employees as “girls,” assigning work according to an individual’s gender, or promoting employees based on gender. In addition, workers should be told to refrain from requesting sexual favors, from touching or flirting with subordinates, and from making similar unwelcome sexual advances to co-workers. Finally, the company should prohibit everyone in the company from retaliating against a worker who files a sexual harassment complaint.
Once a company develops a sexual harassment policy, it should circulate it widely. Companies should provide copies not only to newly hired employees, but also to current ones. In addition, companies should post copies throughout office and break areas, issue periodic memos about the policy, and hold informal and formal departmental meetings to discuss the topic. In particular, companies need to train their supervisors to deal with sexual harassment. Even small businesses will find it useful to educate their workers through videos and seminars. Companies may also wish to seek help from an outside consultant.
A Grievance Procedure
It is of equal importance that a grievance mechanism be established in order that employees who perceive themselves to be the objects of sexual harassment have a comfortable, efficient and effective process to obtain redress. The policy must unambiguously provide a mechanism for addressing an employee’s sexual harassment claims. It is crucial that where such claims involve the affected employee’s supervisor, he or she be permitted to address his or her concerns to higher-level management in strict confidentially. If the employer’s infrastructure permits, a right of further appeal is useful.
The policy must also provide for a thorough investigation of the allegations–usually within a specified and relatively short time frame. The policy must make it clear that resort to the procedure will not be ground for retaliation against a complaining employee and that retaliation by the employee accused of sexual harassment or other employer representatives will be treated in the same fashion as the unlawful sexual harassment itself.
Enforce your policies:
Mere adoption of these policies will not in itself insulate an employer from liability. An employer that promulgates such policies and then proceeds to ignore them or to apply them unevenly or in a perfunctory fashion will be found to have condoned the unlawful activity in the same ways as an employer that has no written policies in effect.
Employer investigations must be undertaken in earnest. This means that any witness to the events in question should be interrogated. Merely asking the alleged offender for his or her version without taking further steps as may be necessary to get to the heart of the matter will not suffice. You can show that you are serious by conducting a real investigation of the allegations giving rise to the complaint and by taking appropriate remedial action.
Remedial action:
If the investigation reveals merit in the complainant’s allegations, you should acknowledge this fact and take appropriate corrective action. Corrective action should not only include discipline for the offenders, but should also encompass employer efforts to correct the hostile or offensive work environment.
Even where you conclude that no specific corrective action is necessary, it may be appropriate to recirculate your written anti-discrimination policy. While institution of these policies and appropriate efforts to enforce them will go far to insulate your workplace from the root causes of sexual harassment as well as from the claims of employees who fall victim to sex discrimination, obviously each case must be handled with sensitivity and on its own merits.
Don’t retaliate:
It is important to remember that employer retaliation against an employee for seeking to enforce his or her rights, either through an internal grievance mechanism or through institution of a charge or complaint of employment discrimination with an administrative agency, is as unlawful as sex discrimination.
The policy should strongly prohibit retaliation, giving examples of what retaliation is. It should state that retaliation against complaining parties or witnesses will be taken as seriously as harassment itself.
Forms of conduct which may be characterized as retaliation are termination of employment on a pre- textual basis, demotion, involuntary transfer or any other job action that seeks to punish or may be construed as punishment for the exercise of statutory rights
Fairness and Safeguards.
The policy should protect the rights of all persons involved. It should assure confidentiality to the extent possible.
Publicizing the Policy.
It’s no good to have a written policy if employees can later claim they never saw it. Each new hire should be given a copy of the policy and sign a receipt stating he or she has read and understands it. But too many employers leave it at that. If you want employees to remember the policy and to understand that you are serious about it, there must be ongoing exposure. Make available a brochure or pamphlet that summarizes the policy.
Periodically remind employees about the policy through memos, articles in employee newsletters, in employee meetings, or some other means that you regularly use for communication. Use posters about the policy and sexual harassment on employee bulletin boards; they should summarize the policy and state how to obtain further information.
Training:
Training and retraining that explains sexual harassment and its impact on the workplace environment are essential for preventing harassment and should be provided on an ongoing basis.
In contrast to widespread misconceptions, sexual harassment is not the use of occasional off-color language, telling a few dirty jokes, complimenting a member of the opposite sex on his or her appearance, a single incident of mildly inappropriate touching, or other behavior that might make some people uncomfortable or upset. Everyone has to put up with a certain amount of behavior in the workplace that he or she finds unpleasant or even offensive. Sexual harassment is behavior that is so severe or so pervasive that it deprives the victim of the same opportunities for economic success that are enjoyed by someone who has not experienced such harassment.
This does not mean, however, that employers should ignore reports of behavior that is based on sex and is inappropriate, unprofessional, disrespectful, and/or offensive. It’s impossible to make black and white rules as to exactly when a line is crossed between merely offensive behavior and behavior that is so severe or pervasive it would interfere with the ability of any reasonable person to perform his or her job. For this reason, many experts suggest training that helps employees understand that certain behavior—whether it is technically sexual harassment or not—is high risk and inappropriate in any work-related setting