|
RISKVUE ARCHIVE | RISK BITES
Avoiding Sexual Harassment Claims: A Primer
By Maria C. Moynihan
A recent national survey reveals that 21% of women and 7% of men polled reported being sexually harassed at work.1 Statistics compiled by the U.S. Equal Employment Opportunity Commission (“EEOC”) further confirm an increasing awareness by employees’ of their right to file sexual harassment charges. In 2000 and 2001, more than 9,000 charges asserting sexual harassment claims were filed with the EEOC, and this does not include the numerous claims filed with state agencies.
The consistently large number of sexual harassment charges filed annually and the availability of an array of damages, including mammoth punitive damage awards2 and emotional distress damages, underscore the importance of developing proactive workplace strategies to prevent these claims. Well-drafted anti-harassment policies and trainings are essential for employers who want to avoid costly workplace sexual harassment claims and lawsuits.
In addition to an anti-harassment workplace policy, many insurers consider employee, manager and supervisor training necessary for establishing eligibility for employment practices liability insurance (EPLI) coverage. EPLI coverage applications frequently ask applicants whether their company’s human resources manual contains a sexual harassment and anti-discrimination workplace policy. The applications also ask if managers and supervisory personnel receive training in the implementation of workplace policies and procedures.
Workplace Policy Considerations
To be effective, an anti-harassment policy should be in writing, should define “sexual harassment,” and should include examples of inappropriate workplace behavior. Some examples of inappropriate workplace behavior include:
(1) Sending sexually inappropriate or offensive remarks through the employer’s email, voicemail, computer or electronic systems
(2) Conditioning an employee’s raise or any condition of employment upon the employee’s submission to sexual favors
(3) Insinuating or threatening that an employee’s lack of submission to sexual behavior will adversely affect an employee’s employment
(4) Using sexually vulgar or explicit language in the workplace.
In addition, the policy should also clearly state:
- Top management’s commitment to maintaining a workplace free from all illegal discrimination, including sexual harassment
- The consequences for those employees who fail to conduct themselves in accordance with workplace policies3
- A prohibition of retaliation against employees who either file a complaint or cooperate in workplace investigations
- The employer’s internal reporting procedures
- The names of individuals within the organization to whom a complaint can be reported
Alternative Personnel To Report Complaints
It is important to recognize that there might be situations in which employees feel uncomfortable complaining to an immediate supervisor. This is especially true if the supervisor is the alleged harasser. Accordingly, the sexual harassment reporting procedures should provide for an alternative person to whom an employee may report the incident. Likewise, whenever practicable, employees should have the option of reporting complaints to either a male or a female employee.
Non-Employee Harassment And Discrimination
The reporting policy should also state that the policy may be used to report instances of sexual harassment or discrimination involving non-employees, such as vendors, customers, and suppliers with whom employees have contact at work. Policies should stress that sexually inappropriate behavior of non-employees will not be tolerated and should be reported immediately.
The anti-discrimination and sexual harassment workplace policy and reporting procedures should be included in the company’s human resources manual or employee handbook. The policy and procedures should also be posted in conspicuous places throughout the workplace, as well as on the employer’s Intranet. The policy should be distributed to annually all employees, including new hires.
Workplace Compliance Training
Proper training of managers and employees is an essential step in minimizing liability. Title VII of the 1964 Civil Rights Act creates vicarious employer liability for acts of supervisors and employees.4 Indeed, certain state anti-discrimination laws, such as those enacted in California and Massachusetts, create strict liability for employers for the sexual harassment of supervisors, and liability for the actions of their employees when an employer had notice but failed to take adequate steps to remedy the behavior.
Regular, periodic trainings reinforce the employer’s commitment to maintaining a workplace free of sexual harassment and illegal discrimination. Employees, managers, and supervisors should be educated on what constitutes acceptable and unacceptable workplace behavior and of the potential consequences for failing to conduct themselves in accordance with the established company policy.
Employee training should include an overview of anti-harassment law, including examples of quid pro quo5 and hostile work environment harassment. Other inappropriate workplace behavior, such as the telling of sexually explicit jokes, should also be reviewed. Following the trainings, employees should have a clear understanding of appropriate workplace behavior and of their responsibility to prevent sexual harassment or discriminatory behavior.
Manager and supervisor training should stress the importance of prompt, thorough, and effective action when offensive or illegal behavior occurs. These persons must be reminded of their obligation to intervene and stop the offensive behavior. In addition, they should be trained in conducting proper workplace investigations, including implementing interim remedial measures pending the outcome of a workplace investigation. The trainings should also review the responsibility to conduct proper follow-up after a complaint is made. This is necessary to ensure that neither the complainant nor the accused harasser experience any retaliation.
Economic Consequences For Failing To Establish Workplace Policies And Employee Trainings
A recent decision by the U.S. Court of Appeals for the Fourth Circuit,6 Anderson v. G.D.C., Inc., illustrates the potential economic consequences for failure to establish workplace policies and employee trainings and respond to workplace complaints. In Anderson, a female dump truck driver complained that she was “barraged” with sexual and vulgar comments, insults, and unwanted touching. Her repeated complaints to management were of no avail and the offensive behavior continued unabated. Following another incident of unwelcome touching, the driver finally threatened a co-worker.
To exacerbate the problem, the driver’s employer retaliated against the driver by refusing to assign her further work, claiming that “work was slow.” Ultimately, the driver abandoned her efforts to resolve the situation, sought employment elsewhere, and filed suit. While the jury returned a verdict in favor of the driver on her sexual harassment claim, her claim for punitive damages was dismissed.
The appellate court reversed the trial court’s dismissal of the punitive damage claim and permitted her to proceed with the claim. Ultimately, the court examined whether the employer “…;engaged in good faith efforts to comply with Title VII 1964.”7
Although the appeals court acknowledged that one of the employer’s managers placed an EEOC poster regarding discrimination in the dispatch trailer, it concluded that this lone act did not constitute good faith efforts to thwart potential discrimination or to cure any that might occur. Fatal to the employer was the absence of a written workplace anti-discrimination policy or to provide employee training. This lack of a workplace policy and training was construed as failure of the employer to make good-faith efforts to comply with its obligations under the anti-discrimination laws.
Conclusion
The Anderson decision illustrates the potential consequences to employers if they fail to implement workplace policies, follow those policies, and promptly respond to complaints of workplace sexual harassment. Well-drafted written policies, periodic employee trainings, and prompt intervention are proactive steps that employers must take to ensure a discrimination and harassment-free workplace and to avoid the economic burdens of punitive damages and other awards. 
ABOUT THE AUTHOR
Maria C. Moynihan is a partner of Morgan, Brown & Joy, LLP, specializing in labor and employment law. Ms Moynihan also serves as a mediator and arbitrator in employment and commercial disputes and is a frequent author in employment law. She can be reached at 617-523-6666 or mmoynihan@morganbrown.com.
Notes
1 “Survey Finds One-Fifth of Women Report Experiencing Sexual Harassment at Work.” Daily Labor Report (BNA), Feb. 8, 2002, No. 27:A-5.
2 “Six California Grocery Store Workers Win $30 Million in Punitive Damages.” Employment Litigation Reporter (Andrews), April 16, 2002, No. 15:3.
3 Several states, including Massachusetts, enacted laws that specifically direct covered employers to “…promote a workplace free from sexual harassment.” See Mass. Gen. Laws ch. 151B §3A, R.I. Gen. Laws, §28-51-2 and Vt. Stat. Ann. tit. 21 §495h. Consistent with their charge, these laws require employers to adopt written workplace sexual harassment policies. Although each statute contains its own requirements, certain common themes exist, some of which are summarized below. Accordingly, all laws direct employers to publish a policy that (1) informs employees that workplace sexual harassment is illegal, (2) contains definitions and examples of sexual harassment, and (3) outlines the range of consequences for employees who fail to conduct themselves in accordance with the prescriptions of the policy. The preventive laws also require that employers distribute policies to all employees and new hires. Policies must also contain a description of the process for filing internal complaints. Employers in these states must also ensure that their policies comply with the mandates of applicable law.
4 See Sarin v. Raytheon Co., 905 F.Supp. 49, 53 n1 (D.Mass. 1995).
5 An example of quid pro quo (“this for that”) is where sexual favors are demanded in order for an employee to obtain work benefits or to avoid unfavorable treatment in the workplace.
6 Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2002).
7 Anderson at p. 461.
riskVue | The webzine for risk management professionals
August 2002
|
