Sexual Har

The Most



by Ricky C. Benjamin       

   WHEN I ASKED MY CLIENTS WHAT POTENTIAL WORKPLACE PROBLEM haunted their dreams most these days many answered, sexual harassment. Their cause for unrest is well founded. The sexual harassment lawsuit has a huge potential for large compensatory and punitive damage awards.
   The number of harassment claims filed with the EEOC has soared since the 1991 Clarence Thomas and Anita Hill hearings made sexual harassment a workplace buzzword and the Civil Rights Act was amended to allow damage awards to those who make out a case.
   The larger number of claims filed does not mean more harassment is occurring - just more awareness of the issue and a greater willingness of employees to take action against it. This earth-shattering reality should serve as a wake-up call to Risk Managers, Human Resource Executives and employers alike to be very well prepared!
   This article identifies examples of sexual harassment and offers insight on preventive measures employers may undertake to prevent its occurrence in the workplace and suggests ways employers should deal with it, thus minimizing their exposure to lawsuits and maximizing fairness to employees.

What Does Sexual Harassment Look, Feel and Sound Like?

   In its most obvious form, sexual harassment is any offensive conduct related to an employee's gender that a reasonable woman or man should not have to endure.
   An employee who has been led to believe she must sleep with her boss to keep her job has been sexually harassed, as has one whose co-workers regularly tell offensive, sex-related jokes and plaster their walls with nude pictures.
   An employee who is pinched or fondled against his or her will by a co-worker has been sexually harassed, as has one whose colleagues leer at him or her, block his or her path or act like they're going to grab him or her.
   Company policy manuals, employee handbooks and harassment policies should include specific examples of prohibited conduct. A good source for identifying these prohibited acts may be the EEOC guidelines, legislative enactments with their accompanying commentary, and court cases. The following list, while not exhaustive, may be a good start toward identifying specific examples of prohibited conduct in terms of what sexual harassment looks, feels and sounds like:
Looks like this: giving unwanted personal gifts, following a person, staring at a person's body, displaying sexually suggestive material such as pornographic photos.
Feels like this: touching one's self in a sexual manner in front of another person, brushing up against another person suggestively.
Sounds like this: sexual comments about a person's body, telling sexual jokes or stories, spreading rumors about a co-worker's sex life, asking or telling about sexual fantasies, preferences or history.

Preventive Measures

   One court, in a decision in favor of an employer in a sexual harassment case, commended the employer for its "textbook example of how to respond appropriately to an employee's harassment complaint." The court was impressed that, immediately after receiving a letter from a complaining employee about having been harassed, the employer took the following decisive and immediate steps:

  • requested a meeting with the employee to discuss her allegations;
  • questioned the accused harasser;
  • interviewed employees and former employees the accused harasser supervised, and;
  • promptly gave the accusing employee a letter summarizing its investigation and the action it had taken.

   The EEOC issues guidelines on sexual harassment. Although it is not required, it is a good idea to use these guidelines to establish minimum standards in the workplace. The guidelines give a good sense for how the EEOC will conduct its investigation of a sexual harassment claims and will help determine whether the EEOC will issue a finding of probable cause to believe sexual harassment has occurred in your case.
   If initial efforts are useless in resolving a claim of harassment, the employer must use more severe methods to insure the harassment ends. Resist the temptation to ignore or reject a valid harassment claim, even though many claims are embarrassing. There are instances where credibility determinations must be made. Remember, large monetary exposure lurks for your company (it is a tough job, but someone has to do it).

Prompt Remedial Action Can Save Your Company

   Consider the case where the court reduced a jury award from $300,000 to a nominal $200 because the court could find no evidence that management had condoned the sexual harassment that was alleged or that the company acted as though it was uncaring.
   Employers need to try to prevent sexual harassment and remediate it when it occurs, but not overreact. Overreaction could cause employer exposure to an even more troubling lawsuit.
   The most celebrated case of employer overreaction involved the much publicized Seinfeld case. There, a supervisor was fired after discussing an episode of the Seinfeld television show with a female employee. The episode involved a situation where the star, Jerry, could not recall his girlfriend's name, but remembered that it rhymed with a female sexual organ. The girlfriend's name turned out to be "Delores." The supervisor showed the fellow female employee the dictionary word "clitoris," and was fired almost immediately.
   That judgment call, made by the firing company representative, cost the employer $26 million dollars. The employer's immediate and premature actions, without a more full diligent investigation was likely a response to all the media attention of sexual harassment claims, where the employer forgot the more fundamental principal of attempting to likewise consider the equal and fair protection for the alleged harasser, as well. The work place is supposed to be fair to everyone, supervisors and employees alike.

How to Give Alleged Harassers What They're Seeking with Little Employer Difficulty

   Very few workers who bring complaints about sexual harassment are concerned about hitting the "cash cow" on a jury award (at least it doesn't start out this way). Typically, they are interested in making the harassment stop and making sure that it stays stopped. This humble goal changes when complaining employees are disbelieved by their employer, treated unfairly or in an uncaring fashion, retaliated against, or made to feel that they are the rogue employee who is hurting the supervisor's or company's name and reputation. Employers should steer clear of adopting this approach, because a lawsuit will surely ensue, with the prospect of a potentially hefty jury award against them.
   If employers draft a good sexual harassment policy, doing so will discourage harassment and protect the employer when a judge or jury in a lawsuit are evaluating the employer's conduct for having been willful, intentional, mean-spirited, or below the legal standard. Any one of these adverse conclusions could have an employer deep in punitive damages ("really bad guy damages").
   Many employers who consider themselves "state-of-the-art" like to believe their written sexual harassment policies are above reproach. They're not! Typically, these policies are written by very expensive lawyers, who include so many legalese and cross-references to other workplace documents, that they create more confusion than curing.
   Draft a policy that everyone understands so that all (employers and employees alike) are aware of the threshold level of appropriate conduct. There is nothing more frustrating than being sensitive about sexual harassment, as an employer, but having to walk on egg-shells in the workplace, to avoid even innocent conduct that may be construed as harassing. A clear "written" policy avoids making the workplace a minefield for unfounded lawsuits.
   Your policies could easily become outdated for your workplace. Conduct routine and annual surveys of your workplace to gauge whether your employees have been affected by sexual harassment or whether any potentially offending conduct has occurred in their presence. Encourage candor and ensure confidentiality.
   This article is not a substitute for experienced legal counsel and does not provide legal advice. Employers are further encouraged to verify the status of any decision or principle of law raised by the comments in this article.

Ricky C. Benjamin is a Colorado licensed Management Labor & Employment attorney, currently a partner in the Atlanta-based firm of McManus, Smith & Benjamin, LLP. He may be contacted at 770.492.1000, ext. 27 or at , on a fee basis.