SEXual Harassment... The BIG Issue in the Workplace, part 3

Sunday, January 1, 2006 | 0

By Jamie Charter, M.S., CPDM

This is the third in a series of articles on the subject of sexual harassment. . Through this article series, we will continue our discussion about sexual harassment, what it is, what it is not, some strategies, and work toward instituting measures to ensure that the workplace affords a safe and respectful environment. Future installments will expound upon this subject including pertinent cases, awards, investigations, and more compliance tips for employers.

As of January 1, 2006, California law, AB 1825,specifies that employers with 50 or more employees be required to provide two hours of mandatory sexual harassment training for managers and supervisors. The training requirement applies to all members of management, from front line supervisors to business owners and CEOs. AB 1825 also extends to entities that regularly receive the services of 50 or more persons according to a contract.

. According to the Equal Employment Opportunity Commission, Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

The impact of sexual harassment on business is great and significant as evidenced by these statistics from the EEOC:

In the fiscal year 2004, the EEOC received 13,136 sexual harassment charges. 15.1% of which were filed by males. EEOC resolved 13,786 sexual harassment charges in the fiscal year 2003 and recovered $37.1 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).

In fiscal year 2004, EEOC received 24,249 charges of sex-based discrimination. EEOC resolved 26,598 sex discrimination charges in FY 2004 and recovered $100.8 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).

When investigating allegations of sexual harassment, the EEOC looks at the entire 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.

As we learned in the first two articles in this series, perception of the act plays a major role in sexual harassment complaints and is subject to interpretation by the offended party.

Sexual harassment can take many forms including written, verbal, visual, and physical.

WRITTEN: Sexually suggestive or obscene letters, notes, or invitations.

VERBAL: Sexually derogatory comments, slurs, jokes, remarks or epithets. It is not necessary to use graphic or sexually explicit language to verbally harass someone. Language spoken in a suggestive tone of voice or accompanied by visual or physical harassment also may constitute sexual harassment.

VISUAL: Leering, looking someone "up and down," making sexual gestures, displaying sexually suggestive objects, pictures, cartoons, or posters.

PHYSICAL: Any unwanted touching (including criminal acts, such as rape and attempted rape) or impeding or blocking movement. Common physical gestures such as hugging may be considered improper when combined with other comments and/or behaviors.

The following sexually patronizing terms must be immediately eliminated from workplace vocabulary:

"Honey," "doll," "chick," "hunk," "stud," or "babe."

Employers can strive to ensure a respectful workplace by demonstrating a commitment to providing a work environment in which all individuals are treated with respect and dignity. By providing appropriate training and having a policy that prohibits all inappropriate and unprofessional conduct directed at an individual, even if such conduct does not rise to the level of illegal harassment can work toward this goal.

Remember: AB 1825 does not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.

Therefore, it may be a prudent measure by employers to consider expanding the training program from the required two-hour format, to encompass other types of discrimination in the workplace to avoid the perception of a lack of respect or importance in other areas. Training limited exclusively to sexual harassment will have little to no value in defense of other forms of a disability harassment claim, including:

Race
Color
Religion
National origin
Sex
Age
Disability
Pregnancy, Childbirth, or related medical conditions
Marital status
Sexual orientation
By lengthening the training program slightly, by a half hour, employers have the opportunity to cover harassment prevention training based on the other categories protected under state and federal law, as outlined. By including some of these areas, via a customized training program, workplace disputes may be limited and a stronger defense provided against future liability.

And now, a review of some forms of sexual harassment:

Quid Pro Quo -When employment decisions are based upon an employee's acceptance or rejection of unwelcome sexual behavior.

Hostile Work Environment - May result from unwelcome sexual behavior or offensive, hostile, and/or intimidating behavior directed at an employee because of that employee's gender.

Sex Discrimination - Occurs when employment decisions are based upon an employee's gender or when an employee is treated differently because of his/her sex.

Third-Party Sexual Harassment -Unwelcome sexual behavior that is directed toward one person, but negatively affects another individual's work environment.

Gender Baiting - Behavior that denigrates, ridicules, and/or is physically abusive of an employee because of his/her sex.

In addition, does this strictly apply to on-site conduct?

No, repeatedly asking an employee out, "hanging around" an employee with no legitimate work-related reason, and pursuing an employee in or out of the workplace may violate this policy. If the behavior is viewed as unwelcome, it is a violation of your company's sexual harassment prevention policy.

What is the responsibility then of the supervisor?

Supervisors are responsible for creating a business-like work environment free from harassment of any kind and retaliation. In addition, managers/supervisors must ensure they are keeping communication lines open with employees to discuss potential violations of anti-sexual harassment policies. A supervisor cannot execute influence to dissuade an employee from airing a complaint. Managers/supervisors also are responsible for monitoring the workplace for retaliation after a complaint is filed and conducting a thorough and appropriate investigation.

Now, an interesting case as reported by DFEH is being presented that will serve to demonstrate the costs of sexual harassment. Acknowledgement is given to the DFEH website and the DFEH Director Suzanne M. Ambrose for the following information, which I have excerpted:

The DFEH awarded $167,486 in a precedential case involving sexual harassment and hate violence in the the case which involves employer Kurt D. Bottoms, employer and landlord, and his employee, who was hired in the capacity of personal assistant. The employee worked in Bottoms' Richmond, California, real estate office beginning in January 2003, and subsequently rented a home from him.

Bottoms' former employee filed a complaint with the DFEH in July 2003, alleging that she was sexually harassed by her employer and property owner, Kurt D. Bottoms, and threatened by him when she objected to his advances. Kurt D. Bottoms threatened the complainant and her family with death if she did not accede to his demands for sex. He stalked and intimidated her and her family.

Following a three-day hearing, the Commission concluded that employer, Kurt J. Bottoms violated:

The Fair Employment and Housing Act by subjecting his female employee to both quid pro quo ("something for something") and hostile work environment sexual harassment.

The Ralph Civil Rights Act, California Civil Code section 51.7, which prohibits violence or threats of violence against persons or property because of their sex.

During her employment, Mr. Bottoms demanded that she engage in sexual conduct with him in order to retain her job. When she rebuffed his advances, Bottoms subjected her to offensive and degrading epithets and verbal abuse, both when they were alone and in front of his other employees. Undeterred, Bottoms pursued the complainant with expensive gifts, made inappropriate comments about her body, demanded that she work long hours and travel with him, and telephoned her at home at all hours. Mr. Bottom's conduct escalated over time including death threats to the employee and her family.

After the complainant quit her job and obtained a restraining order against Bottoms in July 2003, he continued to pursue and intimidate her.

The Commission's Order requires Bottoms to pay the complainant $100,000 to compensate for the emotional distress she suffered as a result of his conduct, $12,486 in wages lost from the time she was forced to leave her employment with Bottoms until she began working again in January 2004, and a $25,000 civil penalty for violating for the Ralph Act. Bottoms was also ordered to pay a $30,000 administrative fine directly to the state's General Fund.

In order to prevent future violations, Bottoms was ordered to develop and implement a written policy that prohibits sexual harassment in the workplace that he must distribute to all of his employees and post in the workplace, along with notice of the Commission's Order. Bottoms was also required to attend interactive training on the requirements of the Fair Employment and Housing Act.

How then can a company minimize the number of sexual harassment claims?

A company can minimize the number of sexual harassment claims by:

1. Drafting and publicizing an anti sexual harassment policy;
2. Implementing a procedure for employees to follow if they feel they have been the victim of sexual harassment; and
3. Conducting company wide sexual harassment prevention trainings.

Important reminder: It is not too late for employers to ensure compliance. NOW is the time, if you have not already addressed this important area of training, to ensure that plans are in place for safeguarding your business.

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.