Wednesday, January 23, 2008

Sexual Harassment

Sexual Harassment at workplace

Sexual harassment issues can be a source of great liability for employers. This is one area where an employee leasing can be of great help. In fact, because of the approach taken by employee leasing Services, it can be argued that sexual harassment issues may not be totally avoided unless there is an employee leasing company involved. To understand this point, we must first understand what sexual harassment is and how it is litigated.

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. Sexual harassment can occur in a variety of circumstances. The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex. The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.

The victim does not have to be the person harassed but it could be anyone affected by the offensive conduct. It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available. The Equal Employment Opportunity Commission handles all the issues in this regards.

The problem facing most small employers is that an employee dates a co-worker. There is a consensual sexual relationship between the two. But when one employee is terminated, the employee brings a sexual harassment lawsuit because of the existence of the relationship at the time of employment.

One way to combat the problem, as indicated by court rulings, is to have an independent source for the employees to go to when they are being harassed. The legal opinions state that the employee must be provided with the name of a person so she can file a complaint when she/he is harassed. But at a small company, the assignment of such a person is not feasible.

Employee leasing Service can help their clients defends sexual harassment issues successfully, because they designate a person within the Employee Leasing service to be the person to report the sexual harassment issues to. Furthermore, most employee handbooks by employee leasing services specifically state that the employee must report such matters to the designated person. Absence of such reporting, bars an employee from making allegations of sexual harassments later.
The Supreme Court on June 26,1998, made employers more liable for incidents of sexual harassment. Ruling on two sexual harassment cases, Faragher v. City of Boca Raton, and Burlington Industries Inc. v. Ellerth, the Supreme Court basically stated that the employer is responsible for the actions of the supervisor, even when the employer is unaware of the supervisor’s behavior. An employer can no longer claim that they did not know about the sexual harassment because the employee did not inform them, nor can they claim that they were unaware of the supervisor’s behavior.
The Supreme Court also stated that the court will no longer heavily rely on the two different forms of sexual harassment, “quid pro quo” and “hostile environment.” The Court called these two forms of sexual harassment of “limited utility” in assessing employer liability. As a result, an employee that refuses the unwelcome sexual harassment of a supervisor, and who suffers no adverse job consequences, can still bring a sexual harassment lawsuit against her employer if the employee can show they were discriminated by the sexual content. The employee will not necessarily be required to show a loss of advancement, retaliation, loss of income, or stress as they once did under “quid pro quo” and hostile-environment. They will need to show that the nature of the sexual content they experienced caused them to experience discrimination.
This means that even though the employer has a policy against sexual harassment and even when sexual harassment training is provided to their supervisors; they still can be held vicariously liable in cases where a supervisor uses sexual content to discriminate against an employee. The courts are now looking at what a "reasonable person" would determine to be sexual content that could cause discrimination versus the old standards of quid pro quo and hostile-environment. The Supreme Court did not throw out these standards, but will not rely on them as courts have in the past.
The Supreme Court created a two part test to be used by employers in defending themselves against a sexual harassment lawsuit.
1.) The employer needs to show that they took reasonable care to prevent and correct any sexual harassment behavior within their workplace.
2.) The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer
Steps Employers Can Take to Avoid Sexual Harassment.
1.) If your company does not have a sexual harassment/discrimination policy, get one fast! The policy should communicate that the company is taking a "zero tolerance" approach toward sexual harassment. Have an attorney review it, and make sure it gets out to all your employees either through the employee handbook or in memo form. Have the employees sign it to acknowledged that they received and read the policy. The policy should be verbally communicated to all new employees, and can even be posted in the workplace. If you have employees whose primary language is not English, have your sexual harassment policy translated or communicate to them in their primary language.
2.) Provide different routes that employees can take to file complaints; i.e., calling a hotline, contacting the human resource department, or by contacting their supervisor. Also the employee should have the option of talking with a male or female company representative.
3.) Conduct sexual harassment training, even if it is only composed of reading material or watching a video, something is better then no training at all.
4.) Conduct yearly meetings with your supervisors to review the sexual harassment policy, and to make sure that they understand that an employee does not need to suffer negative consequences in order to make a claim of sexual harassment. Inform the supervisors that even mild to moderate sexual jokes or statements can create an atmosphere of hostility that will make some employees uncomfortable, and could lead to the creation of an environment where sexual discrimination could develop. The supervisor should also be directed to always inform upper management of any sexual harassment complaints he or she receives from employees. Supervisors should never promise confidentiality with an employee when the information relates to sexual harassment.
5.) Conduct a yearly sexual harassment survey among your employees. The survey can be done anonymously and should be distributed with a copy of the company’s sexual harassment policy. The survey can simply ask the employees (male and female) if they have experienced any form of sexual harassment during the past year. Why do a survey? The results of the survey will tell a court that your company is actively engaged in preventing and correcting sexual harassment. Remember, that the Supreme Court has just determined that an employer can be held liable for incidents of sexual harassment that they are unaware of occurring. So, one method of defense will be to demonstrate to the court or a jury that your company conducts yearly meetings with supervisors and also conducts a yearly sexual harassment survey to attempt to uncover sexual harassment violations before they cause problems for your employees.
6.) Conduct investigations promptly and thoroughly. After the dispute is resolved, a follow up should be done with the employee to ensure that no one has suffered retaliation. Make sure your sexual harassment policy spells out clearly that retaliation against an employee filing a sexual harassment complaint is illegal and will not be tolerated.
7.) Treat same-sex harassment, and men reporting harassment, the same as you would for a woman reporting her male supervisor being sexually inappropriate.
8.) Always document the results of any sexual harassment complaint or investigation. Not only document the results, but document any corrective action that you asked the employee or supervisor to take. Follow up on any corrective action so you can document if the employee fails to take advantage of your companies polices/procedures or any corrective action that your company takes to prevent the sexual harassment from occurring again in the future.
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.

The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.

The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser's conduct must be unwelcome.

It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.

When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

No comments:

Post a Comment