SEXual Harassment... The BIG Issue in the Workplace, part 4

Monday, January 16, 2006 | 0

By Jamie Charter, M.S., CPDM

This is the fourth article in a series on the crucial 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 for all concerned. As promised in part 3 of this series, this installment, and continued and future segments, will expound upon this subject and will include pertinent cases, awards, investigations, and further compliance tips for employers.

"We have the right not to be exposed to boundary crossing--or even attempted boundary crossing, sexual behavior that we do not welcome.... A great deal of sexual harassment can be prevented if we make accurate judgments about what another person's reaction to our behavior will be."**

Sexual Harassment is a widespread problem that can occur in any work environment or when an applicant is applying for employment. Workplace sexual harassment cannot be tolerated because it violates the victim's:

-Privacy rights
-Personal dignity
-Emotional well-being
-Personal boundaries
-Professional development

Employees have the right to work in an environment free from discrimination or harassment, which is a civil right. It is the responsibility of the supervisor or manager to ensure that the workplace promotes a safe and professional environment.

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.

Picture, if you will, a zone around yourself and a comfort level in communicating with another person. All of us have a point where close may be too close, in terms of personal space or boundaries. When this zone or area is exceeded, we may start to feel uncomfortable in the communication experience.

Touching another person without their consent can contribute to a sense of personal uneasiness and can cause severe distress to an employee. Therefore, before touching anyone in the workplace, it is essential that permission be granted if harassment is to be avoided.

The victim must be encouraged 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.

WHO CAN BE HELD LIABLE FOR WORKPLACE SEXUAL HARASSMENT?

A. Harassment by a Supervisor, Manager or Agent

1.FEDERAL LAW

The employer may be held liable only if the victim of the harassment suffered an adverse employment action. If this occurred, the employer is absolutely vicariously liable. (Burlington Industries, Inc. v. Ellerth (1998))

A tangible employment action is defined as action resulting in significant change in employment status. Examples include, but are not limited to:

Demotion
Hiring
Firing
Promotion
Failure to promote
Transfer to a less desirable position, location or shift
Termination of employment, or a change in employment benefits.

If the victim of the harassment has not suffered an adverse tangible employment action, the employer may assert an affirmative defense to the harassment claim. The employer may evade liability if they can demonstrate that:

-It has taken reasonable care to prevent and promptly correct any sexually harassing behavior
-The employee victim "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise"

Employers are, therefore, advised to be certain they have an effective policy regarding sexual harassment that is disseminated widely throughout the workplace. Employees need to know about the procedure for filing a complaint and have that information readily available. Your organization should establish a complaint procedure and ensure that employees know who the appropriate contact person is, when problems arise.

a. Who is a "supervisor"?

Federal law neither contains nor defines "supervisor". The courts will look at the authority granted the employee, in addition to the purposes underlying the anti-discrimination statutes and reasoning of the U.S. Supreme Court when deciding harassment cases.

Vicarious liability is imposed upon the employer when a supervisor engages in harassment because supervisors are aided in their misconduct by the authority delegated to them. Their level of authority must be sufficient to allow the harasser to explicitly or implicitly execute the harassment, with reference to actual job functions rather than job titles. Accordingly, under federal law, a supervisor:

-Has authority to undertake or recommend tangible employment decisions impacting the employee, even if he/she does not have ultimate decision-making authority, but his/her recommendation is given substantial weight by the final decision-maker (s)

Or

-Has authority to direct the employee's daily work activities, but not to undertake or recommend tangible job decisions.

Persons serving in supervisory capacities or roles for temporary periods of time may subject the employer to liability for conduct committed during that timeframe.

b. EMPLOYER'S "ALTER EGO"

The federal courts have held that the employer is liable for harassment when the harasser's rank within the organization may be treated as the organization's proxy. The president, owner, partner or corporate officers of the employer are examples of those in this class.

In these cases, the harassment is automatically imputed to the employer and the affirmative defense discussed earlier is unavailable to the employer even when the employee did not suffer a tangible employment action.

2. CALIFORNIA LAW

Under FEHA, employers are held strictly liable for the sexually harassing acts of their supervisors, managers or agents. If the employer's complaint is substantiated, in other words, if it is determined that actionable workplace sexual harassment occurred, the employer and the harassing supervisor are both liable for all harm the employee suffered as a result of the harassment.

A. WHO IS A "SUPERVISOR"?

"Supervisor" means any individual having the authority, in the interest of the employer to:

Hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

B. Harassment by a co-worker

Both state and federal law hold an employer liable for harassment by a non-supervisory employee if the employer knew or should have known of the harassment and failed to take "immediate and appropriate corrective action", such as action designed to preserve the employee's right to work in an environment free from offensive conduct.

a. Harassment by a Third Party

Under both California state and federal law, an employer may be held liable if its employees are subjected to workplace harassment by third parties such as:

Clients
Vendors
Customers

If the employer knew or should have known that the harassment was occurring and failed to take immediate and corrective action to foster an environment free from offensive conduct, the chances are liability will attach.

Under California law, any employee, either co-worker or supervisor, manager, or agent, who engages in sexual harassment can be held personally liable for the harm caused by his/her conduct, regardless of whether the harasser's employer can also be held liable.

HOW WILL THE EEOC DETERMINE WHETHER CONDUCT IS UNWELCOME?

When confronted with conflicting evidence as to whether conduct was unwelcome, the EEOC will examine the entire record and at the totality of the circumstances, evaluate each situation on a case-by-case basis. The EEOC's investigation should determine whether the victim's conduct was consistent or inconsistent, with his/her assertion that the sexual conduct was unwelcome.

DFEH serves as a neutral fact-finder. If DFEH finds sufficient evidence to establish that discrimination occurred and voluntary efforts to resolve the dispute failed, the Department may file a formal accusation. This will lead to either a public hearing before the Fair Employment and Housing Commission or a lawsuit filed by DFEH on behalf of the complaining party.

If the commission finds that discrimination has occurred, ordered remedies include:

-Fines of damages for emotional distress from each employer or person determined to have violated the law

-Hiring or reinstatement

-Back pay or promotion

-Changes in the policies or practices of the involved employer.

Employees can also file a private lawsuit in civil court aster a complaint has been filed with DFEH and a Right-to Sue Notice has been issued.

And now, as promised, a case to study, courtesy of the EEOC:

Checkers Drive-In Restaurants Inc. entered into a settlement with the Equal Employment Opportunity Commission to resolve a sexual harassment lawsuit filed against the company in Florida. Two female managers claimed a supervisor harassed them, with one of the managers alleging that the supervisor exposed himself to her. The restaurant has agreed to pay $206,000 to the Managers.

The lawsuit charged that the restaurant chain failed to stop the harassment after the women complained, although Checkers countered that it investigated the claims and found no evidence of illegal harassment.

As part of the settlement, Checkers was directed to implement new sexual harassment training and monitoring programs. Checkers has denied liability, saying it settled the case to avoid the expense of protracted litigation.

Why take chances? 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.

Information for this article series has been derived from a variety of sources, including, but not limited to EEOC, DFEH, Department of Labor and Littler Mendelson.

**(Understanding and Preventing Sexual Harassment: The Complete Guide, Peter Rutter, M.D.

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.