SEXual Harassment... The BIG Issue in the Workplace, part 2

Monday, December 19, 2005 | 0

By Jamie Charter, M.S., CPDM

This article is the second in a series on a topic of great importance, sexual harassment. My motivation in writing this article series is concern about California law, AB 1825, requiring sexual harassment training for supervisors by January 1, 2006.

The topic is, however, relevant to all employers, in all states. Whether a particular state requires the training is somewhat irrelevant if the primary goal is to promote a safe and respectful workplace.

National media coverage has made it more than apparent that sexual harassment within the workplace is an area of critical exposure for business owners and corporations alike. Federal guidelines through the EEOC recommend, and AB 1825 requires, communication of harassment policies and proactive education of supervisors regarding company policies against harassment. Proper employee training can significantly minimize the risk of sexual harassment lawsuits.

Failure to provide such training can result in expensive legal consequences, employee dissatisfaction, and decreased productivity.

Throughout this article series, and with future installments, we will continue to explore this subject in detail and discuss cases of interest and other matters of great significance, impact and relevance.

We will begin by addressing some primary questions about sexual harassment.

Is sexual harassment legal?

Certainly not! Sexual harassment is not legal under both Federal and California law. Title VII of the Civil Rights of 1964 strictly prohibits sexual harassment. Title VII classifies sexual harassment claims into two categories: : "quid pro quo" and hostile work environment.

Title VII, applies to any company with more than 15 employees when it comes to sexual harassment. The company must be in an industry affecting interstate commerce. In California, sexual harassment and other discriminatory conduct is prohibited by the Fair Employment and Housing Act ("FEHA"). The statute is located in California Government Code Section 12940. With respect to claims of sexual harassment, the FEHA applies to employers who employ more than one person.

What is quid pro quo?

Quid pro quo sexual harassment takes place when a supervisor or someone with authority over an employees job demands sexual favors in exchange for his/her assistance in promoting, hiring, or retaining the employee in the job. The demand for sexual favors can be expressed to the employee as a threat, such as you better comply and I will then make sure you keep your job or get a raise", or it can be implied from unwelcome physical conduct such as touching, grabbing or fondling.

What are examples of a hostile or offensive work environment?

Being at the receiving end of sexually-charged jokes or pranks, being grabbed or whistled at, sexual advances, requests for sexual favors or other verbal, visual, or physical conduct of a sexual nature can create a hostile work environment and can qualify as sexual harassment. Conduct that makes the workplace sexually charged does not necessarily have to be directly aimed at the person being harassed in order for it to be actionable. For example, being subject to pornographic posters/pictures or profanity can still create a hostile work environment.

In addition, while we are on this particular subject, what about emails routed around the office? Alternatively, jokes told around the water cooler or coffee pot? Sense of humor is a personal matter and is subject to interpretation. What is considered funny to some may be considered offensive to others. Remember, how someone perceives the action has everything to do with this subject.

Who can be held responsible if an employee is the victim of sexual harassment at work?

Both the employer and employees are liable for sexual harassment. Recently, several state court and California's Fair Employment and Housing Commission have also held customers of an employer personally liable for sexually harassing conduct. In turn, employers could also be liable for the sexually harassing conduct of their customers under the current standards. Finally. one California appellate court has held that sexually harassing conduct directed toward certain employees may be sufficient to fix liability to another employee who is not the direct victim of that conduct (i.e. a co-worker who is sitting at the desk and can hear the harassing person talking ). still create a hostile work environment.

Once the employer is informed about the sexual harassment, what must the employer do?

Once the employer knows about the harassment, it has the duty to take immediate and appropriate corrective action to end the harassment. The employer's response must be investigated to end the harassment and if earlier discipline did not end the harassment, more severe discipline is required.

What distinctions, if any, do courts make between on-duty and off-duty conduct?

Where is the line drawn? Where do the most stringent courts draw the line regarding when the conduct experienced by the employee is sufficiently "severe and pervasive" to constitute sexual harassment?

What distinction, if any, do courts make between conduct considered gender-based and conduct which is gender-neutral?

What facts should the company look at in considering if same-sex sexual harassment has occurred?

How have courts addressed claims brought by the alleged harasser following their termination for sexual harassment?

What can you as an employer, or attorney representing employers do to safeguard the business? What steps can you take to work on ensuring compliance?

Employers need to be certain they are providing a comprehensive program that meets all Federal expectations, including preventive education for your employees. Such a program can include:

* Supervisor and management training.
* Prevention compliance to meet Federal recommendations and state regulations.
* Interactive discussions regarding less-than-obvious harassment.
* Presentation of clear on-the-job rules for both male and female employees.
* How to prevent sexual harassment.
* Investigation of employee complaints of harassment.
* Take all issues brought to your attention seriously, no matter how seeming insignificant they appear.
* Zero tolerance policy for sexual harassment!

IMPORTANT NOTE: With the upcoming holidays and office parties and social events, I am particularly motivated to mention this as, in a social setting, people can temporarily forget rules of appropriate conduct, once the lights are dim, there is a festive atmosphere and imbibing of alcohol. While certainly not wanting to be a killjoy, it would be prudent for employers to make mention of their expectation of demonstrating appropriate conduct to their staff.

Author Jamie Charter has been providing employment and litigation consulting services for 21 years through Charter and Company in Soquel, California and the Employment Resource Consultants. Jamie is certified as a Professional in Disability Management, (CPDM) and is a State of California Independent Vocational Evaluator (IVE) . Jamie is also an accomplished writer and editor, with many published articles in employment related issues in wide-reaching media arenas. Jamie can be reached at jcharter@calcentral.com; 831-479-1977.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.