This Month's Training Tip: How To Prevent Or Respond To Harassment
Acting on Complaints of Sexual and Other Forms of Harassment
The courts and the EEOC recognize that sexual attraction often plays a role in the day-to-day relationships between employees; they therefore distinguish among "invited," "uninvited-but-welcome," "offensive-but-tolerated," and "flatly rejected" sexual advances. These distinctions also raise the following questions:
- When does an innocent flirtation become sexual harassment?
- How serious is one incident?
- How do you determine culpability?
- Once you determine culpability, what do you do about it?
The measure of the situation is usually based on the perception of the person feeling harassed, not on the intentions of the alleged harasser. This means that actions such as friendly gestures, thoughtless or innocent remarks, or bids for attention could be misinterpreted and result in mistaken or inappropriate claims being made. The "EEOC Policy Guidance on Sexual Harassment" (Washington, D.C.: BNA,1988), provides some help. It states that "a single incident or isolated incidents of offensive sexual conduct or remarks generally do not create an abusive environment [unless] the conduct is quite severe [Section C2]"
The Commission quotes the U.S. Supreme Court: "[The] mere utterance of an ethnic or social [or sexual] epithet [that] engenders offensive feelings in an employee would not affect the conditions of employment to a sufficiently significant degree to violate Title VII."
With regard to quid pro quo, frequently a single incident offense is sufficient for action. On the other hand, a hostile environment usually exists only when there is a pattern of unreasonable conduct. The Third Circuit Court of Appeals, however, applying the "reasonable woman" test to a case involving a single incident, set the current standard that one incident counts if the unwelcome action "substantially interferes with an individual's employment ... or creat[es] an intimidating, hostile or offensive employment ... environment."
How do you judge the merits of a harassment complaint when, upon investigation, the alleged harasser denies that the advances were unwelcome? The EEOC spells out how. The victim, say, a woman, should have communicated her displeasure, asserting "her right to a workplace free from sexual harassment." Examples:
- "Stop it. I don't like what you're doing."
- "I have no wish to see you socially."
- "Please stop making sexual remarks or jokes around me."
- Nonverbal behaviors, such as pushing away or facial expressions of annoyance.
These and similar statements or actions clearly indicate that the behavior is unwelcome. The same sort of overt rejection applies to racial and other forms of harassment.
On the other hand, the victim may make a complaint without ever having told her perceived persecutor how she feels because she fears repercussions, such as being fired.
Harassment and Injury or Detriment
A person complaining of sexual harassment need not also complain of or exhibit severe psychological injury. Justice Sandra Day O'Connor has commented that damages can be awarded even if the harassment does not lead to a nervous breakdown. Further, the party bringing suit need not prove job or economic loss to hold both the harasser and the organization liable for a hostile environment. A thorough and prompt investigation is still the order of the day, and could hold off the possibility of a class-action suit, the first of which was allowed by a federal court in May 1993. Keep in mind that the same principles hold for any kind of harassment in the workplace.
Likewise, some circumstances can create an offensive or hostile environment due to harassment and can violate Title VII even if the aggrieved does not suffer tangible job detriment. Discriminatory working conditions can exist where a pattern of harassment subjects a person to disparate treatment regardless of whether or not the employee also proves that he or she has lost a tangible job benefit. However, the claim must pass three tests to qualify under Title VII:
- The employee must be a member of a protected group.
- In the case of unwelcome sexual harassment, the conduct must affect a "term, condition, or privilege" of employment.
- If the employer is to be held liable for the hostile environment created by a supervisor or coworker, the employer must or should have known of the harassment in question but failed to take remedial action.
Concerning the first point, the court would not recognize a Title VII liability if, for example, the supervisor's or coworker's sexual behavior was offensive to men and women alike; the conduct did not create disparate treatment based on gender. But the court's use of the phrase term, condition, or privilege of employment raises an important issue. According to the court, an employee's psychological state may be included in the above phrase if the harassment is so pervasive that it creates an "abusive" work environment. Under these conditions, a tangible job detriment need not be shown.
This criterion underlies a 1985 decision in which an appellate court upheld a female employee's claim that her male supervisor sexually harassed her by physically grabbing her arm and preventing her from leaving his office. The employer argued that, although the supervisor exerted unnecessary force or violence, it didn't qualify under Title VII because there were no sexual overtones to the incident. The court disagreed and stated that the use of physical force toward a woman employee that would not have been applied in a similar circumstance to a man employee, if sufficiently pervasive, can form an illegal condition of employment under Title VII. How you treat someone significantly different from you-for example, a member of the opposite sex or a member of a racially different group-does matter.
In 1998, however, the Supreme Court seems to have reversed itself with respect to whether a job detriment need not be shown. If the employee or employees did not suffer any "tangible employment action," i.e., "a significant change in employment status" as opposed to "unfulfilled threats" or "insignificant changes in status" such as a job title redefined in a way that bruises the employee�s ego, a claim of harassment may not have prima facie validity. (See also Affirmative Defense later in the chapter.)
Hearing the Complaint
Prohibition policies and prompt remedial action may not be enough. Deterring lawsuits requires deliberate preventive action (e.g., training and sensitivity sessions).
The plaintiff strengthens her case if she makes a "contemporaneous" complaint, that is, a complaint made at the time the harassment occurs or shortly after it stops. The EEOC considers a complaint contemporaneous even if it is made after the victim quits her job as long as "she notified her employer of the harassment at the time of ... departure or shortly thereafter." This often happens for the same reason the victim does not confront the harasser directly-because of fear. The employer is still obligated to investigate thoroughly to determine whether the employee quit as a result of a constructive discharge.
You should determine if the person complaining has ever given the alleged harasser reason to believe that sexual advances or other forms of harassment were welcome or "okay." For example, in a 1983 decision, the EEOC ruled against one of three women because she responded in kind to sexual horseplay and gave her employer reason to believe that his behavior was acceptable to her.
Harassment Involving a Third Party
Adverse working conditions can be created for a third party when opportunities are granted to an employee who consents to sexual advances that are denied to one who does not. This is what attorneys call "paramour preference." Giving preferential treatment to a female employee who submits to sexual advances and other sexual conduct violates Title V11 because you demonstrate through your conduct that job benefits are conditioned on an employee's tolerance of sexually charged conduct or advances. The law clearly prohibits such behavior.
That a female is ultimately selected for promotion or preferential treatment makes no difference. Another female employee, perceiving that better employment opportunities are predicated on submitting to sexual conduct, and that had she been a man she would not have been treated that way, may charge the offending supervisor with sexual discrimination.
Harassment and the Appearance of Consent
The following case is based on one that went to the U.S. Supreme Court. Ella Louise had several reasons to be afraid of Mike, her supervisor at the savings and loan company where they worked. He was her boss and had made it clear that her future with the company rested in his hands. He was a very big man whose physical strength intimidated her. For these reasons, she hadn't complained about his sexual demands during business and nonwork hours for over a year. When she finally overcame her fear and said "no more," he filed a negative performance evaluation. She then sued both him and the company, charging sex discrimination (creating a hostile environment) and sexual harassment.
Mike pleaded innocent on the grounds that the sexual relationship was voluntary and consensual. The savings and loan pleaded ignorance of the situation. After six years of court battles, the U.S. Supreme Court, in the actual case, ruled in favor of Ella Louise. The Court considered the following three questions:
- Does unwelcome sexual behavior that creates a hostile environment constitute discrimination on the basis of sex? According to Justice Rehnquist: " When a supervisor sexually harasses a subordinate because of a subordinate's sex, that supervisor discriminates on the basis of sex." Unwelcome
sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature mark sexual harassment. The key word is unwelcome.
- Can a Title VII violation be shown when the district court found that any sexual relationship that existed between the plaintiff and her supervisor was a "voluntary one"? Even if "consent" gives the appearance of being "voluntary," that the demands are unwelcome is sufficient to support the charge of harassment. The fact that sex-related conduct was "voluntary," in the sense that the complainant was not forced to participate against her will, as in a rape, is not a defense to a sexual harassment suit brought under Title VII. Rather, the correct test is whether the victim, by her conduct, indicates that the alleged sexual advances are unwelcome, not whether her actual participation in sexual intercourse is voluntary. Consent at gunpoint is hardly willing participation; therefore, the complaint is enforceable under Title VII.
- Is an employer strictly liable for an offensive working environment created by a supervisor's sexual advances when the employer does not know of, and could not have reasonably known of, the supervisor's conduct? It's the employer's obligation to know what is happening in its place of employment. Therefore, the employer is equally liable. Ignorance is never a defense. Although each case must be taken on its own merits, the legal principle of agency is consistent with the intent of Title VII and with the EEOC guidelines on sexual harassment:
An employer ... is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence.
Investigating Claims of Harassment
The U.S. Supreme Court hedged on employer liability when it said "employers are not automatically liable" for the actions of their supervisors, but to prevent the possibility of liability, you must conduct a thorough investigation of all complaints. What any coworker, supervisor, or recognized third party does while doing business for or with the employer becomes the employer's responsibility.
Prompt Remedial Action
In a case with relatively minor consequences, all you need to do to prevent employer liability is act promptly to end the harassment. No one expects "instantaneous redress" for all infractions. Additionally, the law doesn't require an employer to fire an employee for harassment. It requires only that the employer take "prompt remedial action reasonably calculated to end the harassment."
On the other hand, in a serious case (e.g., one that involves coercion, propositioning or quid pro quo, placing someone in a threatening situation, or creating a job detriment), a promise to transfer the offended party or slap ping the offender's wrist may not be a sufficient form of remediation. The remedy to a complaint should be weighed against the seriousness of the offense. Punishments should fit their crimes.
Just what are reasonable standards for (1) preventing harassment and (2) taking remedial action should harassment occur? The law notwithstanding, a manager's response to the threat of a hostile environment in which sexual, racial, or any other form of harassment exists must be swift and effective. A productive, profitable work environment is one in which your personnel feel safe from harm and from unreasonable interference with work performance.
Even if you don't determine policy, you can influence it. If your company doesn't have a written policy prohibiting harassment, remember that the law requires that companies have policies dealing with harassment. Insist that a statement be produced that includes the main points in the suggested antiharassment policy statement.
Without training to inform managers about the policies and how to administer them, policies have little value. In the absence of such training, encourage your company to implement one simultaneously with the publication of the policies.
Effective Investigation: Step One, Yourself
The prevention of harassment begins with you. What do you do that might be considered discriminatory or unreasonable? Begin by answering the following questions:
A no to any of these questions should raise a red flag for you.
- "Do I share power with the people I work with-that is, do I treat them as equals?"
- "Do I say or do things behind a protected person's back that I would not say or do if he or she were present?"
- "Would I accept what I say or do if the remarks or actions were directed at me or at something that distinguishes me from other people?"
- "Would I want what I say or do to appear in the evening newspaper or on the TV news?"
Now change the pronoun "I" to "other managers" or "my coworkers" and answer the questions again. You might even ask the other managers and your coworkers to give themselves this little self-assessment.
Effective Investigation: Step Two, Following Up on a Complaint
If you receive a complaint of harassment, take the complaint seriously and act professionally, even if the story appears sensational or titillating. A study conducted by the American Management Association in November 1991 showed that 60 percent of sexual harassment claims end in discipline for the alleged offenders. While the victim is entitled to a fair hearing, don't forget that the alleged harasser also has rights. Keep in mind too that a false accusation of sexual harassment is subject to remedial or disciplinary action.
Three points to keep in mind when evaluating a story of harassment.
- Unreasonable behavior, especially sexual conduct, usually occurs in private, without witnesses.
- Sometimes what appears to be consenting sexual behavior results from fear rather than agreement, and the employee may have held back his or her complaint for fear of retaliation.
- A victim's complaint is credible until you have completed a proper evaluation of the evidence.
Take those steps before reporting an incident as a formal complaint.
It seems as if every year the EEOC and the Supreme Court issue new, slightly different, guidelines concerning sexual harassment. The 2nd Circuit Court decided the following case, after seven years, by applying the standards set in the two landmark cases known as Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth, and applying the guidelines issued by the EEOC in Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999).
Allison sued her employer, Keno, Inc., for failing to prevent her supervisor from creating a hostile environment for her and other female employees: a supervisor made sexist comments, threats to fire the women and replace them with "young and sexy hires," and the company did little or nothing to stop him. Back and forth went one decision after another until Faragher and Burlington were decided. Then the 2nd Circuit backed the company saying that Keno�s complaint procedures were satisfactory and the company demonstrated that Allison had failed to use the system in place. The company�s "affirmative defense" was successful inasmuch as "An employer need not prove success in preventing harassing behavior in order to demonstrate that it exercise reasonable care in preventing and correcting sexually harassing conduct."
What, then, is an "affirmative defense" with regard to harassment? When the employee or employees did not suffer any "tangible employment action," i.e., "a significant change in employment status" as opposed to "unfulfilled threats" or "insignificant changes in status" such as a new job title that bruises the employee�s ego. However, if you can prove that the tangible employment action was not the result of harassment, e.g. documentation of inadequate performance, the link between the action and the harassment is severed.
A second element is proof that an acceptable reporting procedure for harassment is in place and that the employee(s) did not make use of that procedure. On the other hand, if the employee(s) had reasonable cause to fear retaliation, or found unnecessary obstacles within the procedure or believed the procedure to be ineffective, or took other steps to stop the harassment (e.g., complained to the EEOC), you must demonstrate that the employee�s failure to follow the procedure was based on unreasonable claims. In other words, if both the complainant and you acted reasonably, in accordance the rules and policies of the EEOC and your company, you are not liable as a "vicarious" party.
Whatever you do, whenever you do it, write it down. When interviewing a person charging sexual harassment, complete a summary of the charges and ask the accuser to read the summary and sign an acknowledgment that it is a true and accurate account of the charge. When interviewing the accused, complete a summary of the response and ask the party to read and sign an acknowledgment that the summary is a true and accurate account of the answer. When interviewing witnesses, do the same thing. Finally, document your conclusions and the action taken. Leave nothing to "he said/she said" unless you want to fight it out in court.
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