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Sexual Harassment: A Costly Workplace Problem By Thomas N. Ryan, Esq. Sexual harassment in the workplace can take many forms, is difficult to prevent, and can cost an employer a fortune if it occurs. Prevention of sexual harassment, and the elimination of any harassment that exists, are not only legally expedient but also sound business policy. Federal law 'Title VII of the Civil Rights Act of 1964 ' and state law 'the New Jersey Law Against Discrimination (NJLAD)' prohibit sexual harassment in the workplace. They mandate that all employers - including those in the public sector - provide a work environment that is free from such harassment. Under federal and state statutes, damages for humiliation and emotional distress may be awarded, as may punitive damages. Statutory penalties may be assessed. As jury trials have become increasingly available to plaintiffs in sexual harassment suits, the potential stakes have risen for individuals and employers who are defendants. Possible insurance coverage for harassment claims notwithstanding, a plaintiff's verdict or a large settlement can wreak havoc on a company's bottom line. Further, no employer should consider itself immune: not governmental agencies, not non-profit agencies, not even mom-and-pop operations. WHEN IS AN EMPLOYER LIABLE? Sexual harassment generally takes one of two forms. Quid pro quo harassment occurs when a supervisor or manager requests sexual favors in exchange for a promotion, raise, or some other benefit. In most cases of quid pro quo harassment, employers are strictly liable for the actions of supervisors and managers; that is, the employer is liable even if it did not know of the harassment or took steps to prevent it. The second form of sexual harassment is when offensive, unwelcome actions by some employees interfere with another employee’s work performance or create an intimidating, hostile environment. In these cases, which can involve whistling, leering, touching, suggestive or lewd remarks, or obscene jokes, pictures or drawings, management is liable if it knew or should have known of the hostile environment. Even seemingly innocent behaviors, such as calling employees sweetheart or darling, can be unwelcome and perceived as harassment. Prompt, vigorous remedial action on the part of an employer can mitigate its liability or damages in hostile environment cases. AN OUNCE OF PREVENTION … Nothing can make an employer totally immune to claims of sexual harassment in the workplace. The best defense, however, is for employers to take strong, proactive stances opposing harassment. All programs designed to stamp out harassment – and protect the employer from harassment claims – should include: Policies that prohibit workplace harassment and are comprehensive, well-publicized, and consistently administered. The company’s policy should contain a strongly worded statement of purpose that expresses the employer’s commitment to eradicating harassment in the workplace. It should define clearly what conduct constitutes harassment and include a specific explanation of the complaint procedure. It should state unequivocally that all reports of perceived harassment will be investigated and that violations of the policy will result in disciplinary action, which may include firing. The statement should also make it clear that the company will not tolerate retaliation against workers who allege harassment or cooperate in investigations. Don’t just bury the policy in a seldom-read handbook; post it in visible areas. Complaint procedures that are widely promulgated and give employees access to management with no fear of retaliation. Included should be the names and telephone extensions of at least two people – with at least one a woman – to whom inappropriate conduct should be reported. The procedure should always include an alternative to reporting incidents to immediate supervisors because the supervisor may be the accused harasser. Always include information about outside agencies, such as the Equal Employment Opportunity Commission (EEOC) or the New Jersey Division on Civil Rights, to which complaints may be addressed. Investigate all complaints properly and in good faith, because inaction destroys the integrity of the complaint procedure. Interview the accuser, the accused, and any witnesses. Keep the proceedings confidential. Even if the charges are not substantiated, counsel the parties and reiterate the company’s commitment to a harassment-free workplace. Training for all employees and supervisors that is regularly scheduled and mandatory. Sensitize all employees to the issues surrounding sexual harassment. Keep records of who has attended training sessions. Give additional training to new management employees. The training should include analysis of both kinds of sexual harassment, as well as discussions of specifics types of conduct that are deemed offensive. Emphasize that individual employees and managers – not just the employer – can be found liable for harassment. Training can be conducted by human resources personnel or outside consultants, including law firms. Training can include simulations, roll playing, literature, and interactive computer programs. Monitoring programs that ensure that the company’s policies are, indeed, preventing sexual harassment. This can include surveys of all employees or randomly-chosen employees and must include follow-up with employees who have filed complaints to ensure that the perceived harassment has ceased. A firm commitment by the employer to preventing sexual harassment, and a demonstration of that commitment through consistent enforcement of the stated policies. Without the visible endorsement of top management, sexual harassment programs are perceived to lack validity. Top management and ownership must make it clear that no employee – regardless of position or worth to the company – is immune from the policies. Use of the complaint procedure must not only be tolerated, but encouraged by management. Be aware that for a variety of reasons – feelings of helplessness, fear of retaliation, self-blame, fear of being ridiculed, shame, or not wanting to rock the boat – some victims will not complain. NOT JUST A LEGAL ISSUE Besides resulting in legal damages and statutory penalties, sexual harassment in the workplace creates a poor working environment, which leads to poor productivity and performance, low morale, increased absenteeism, and adverse publicity. Although relatively few instances of sexual harassment are based on actual sexual desire, the actual underlying reasons – expressions of dominance or power, maintaining control over another person, attempts to seek peer approval, and simple bullying – make for a hostile workplace. To keep a productive, harassment-free workplace – and minimize legal liability – employers should take steps to prevent harassment, take complaints seriously, investigate thoroughly, and take corrective action when warranted. Action against the harasser may range from warning to dismissal. As importantly, action on behalf of the harassed employee should center on ending the harassment, making the victim whole, and prevent harassment from recurring. (NOTE: Thomas N. Ryan was the guest speaker at a recent Sussex County Chamber of Commerce seminar on sexual harassment in the workplace. See the News/Seminars section of the website for an article on that seminar.)
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