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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.)
Thomas
N. Ryan is a partner at Laddey, Clark & Ryan and
maintains a specialty in labor and employment law. For more
information on him and his practice, click on the Our Attorneys
section of this website.
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