Category: Sexual Harassment

You can go a long way toward avoiding a potentially ruinous sexual harassment charge in your company by following these five steps:

1. Establish a written policy that clarifies your position to everyone on staff. It also will provide solid proof to judges that you’re committed to eliminating and preventing sexual harassment. Make sure the language is clear, emphatic and easy to understand. What should be included? A broad definition of the type of conduct that constitutes sexual harassment, a statement requiring employees to report offensive conduct, procedures for reporting a complaint, discipline procedures and a pledge that there will be no retaliation against whistle-blowers. What should not be included? Guarantees of confidentiality, strict limits on what constitutes harassment and promises to resolve complaints to the victim’s satisfaction.
2. Promote your policy. It’s not enough to have a policy on file. In order for your company to avoid liability, your employees must know that your policy exists and understand the grievance procedures. Hold in-house meetings to communicate your policy. Many experts also advise you to have employees sign a statement saying they’ve read, understood and intend to comply with the policy. Keep the training ongoing so that your staff—especially new hires—will be aware of the guidelines.
3. Set up a complaint procedure. Provide the names and telephone numbers of at least two contact people to whom workers can report misconduct. (If you have only one contact, it would be difficult for someone harassed by that person to file a complaint.) Set a time frame to process and resolve complaints, and decide how appeals will be handled.
4. Enforce your policy consistently. One of the most common traps for employers is to enforce their policy differently depending on the parties involved. You can avoid a lawsuit by basing your discipline on the seriousness of the offense, without regard to rank or seniority. Make sure you have any necessary documentation to back up disciplinary action.
5. Investigate complaints ASAP. Take every complaint seriously and investigate it promptly. Develop a method to interview the accused, the accuser and potential witnesses. Your first goal should be to resolve the grievance internally, without judicial or EEOC interference. The best way to do that is to have an effective complaint procedure.

 

 

 

Sample Sexual Harassment policy

You may use the model policy below or adapt it for your organization. The statement should appear on company letterhead, signed by the CEO or another high-level executive.

 

Sexual Harassment Policy

[Name of company] is pledged to preserving a working environment free from sexual harassment. Harassment is against the law and is a form of gender discrimination. [Name of company] does not tolerate discrimination on the basis of gender, pregnancy, sexual orientation, race, religion, age, national origin, citizenship, veteran status, disability or any other personal characteristic unrelated to an employee’s ability to perform work requirements. The aim of this policy is to prevent harassment of any kind by anyone employed by or associated with the company.

Sexual harassment consists of unwelcome sexual advances, requests for sexual favors or unwanted sexual attention by anyone associated with the company, whether male or female. Harassment may include references to employment status or conditions, or may serve to create a hostile, intimidating or uncomfortable work environment. Harassment includes, but is not limited to, obscene jokes, lewd comments, sexual depictions, repeated requests for dates, touching, staring or other sexual conduct committed either on or off company premises.

Victims of sexual harassment have the right to sue both the company and the perpetrator by contacting the Equal Employment Opportunity Commission or a state agency. For this reason and for the protection of all our employees, [name of company] seeks to prevent sexual harassment.

All [name of company] employees are responsible for helping ensure that our workplace is kept free of sexual harassment. If you feel you have been a victim of sexual harassment, report the behavior to our Sexual Harassment Coordinators [name, location, phone number] or to any supervisor, member of the personnel department or the company president. If you have witnessed sexual harassment, you also are urged to report the incident so that prompt action may be taken.

All complaints will be treated seriously, kept as confidential as possible and investigated fully. [Name of company] expressly forbids any retaliation against employees for reporting sexual harassment. If, however, the company finds that false charges have been filed, disciplinary action may be taken against any individual who provides false information.

If an investigation confirms that sexual harassment has occurred, immediate action will be taken to put an end to the harassment. [Name of company] will take appropriate corrective actions against anyone found to be in violation of this policy, including possible termination of employment.

 

______________________________________________________________________

Adapted from a book, Sexual Harassment: A Concise, Practical Reference Tool for Small Business (publication N265A), published by the National Institute of Business Management. To order, call (800) 543-2051.

Does it seem like courts keep telling us we have to monitor all juvenile behavior in the workplace? Do we need to hire “conduct cops” for our hallways? A court ruling last week smacked some sense into the laws and said “no” — not all bad-boss behavior is automatically “discrimination.” Is this an early holiday gift to employers?

Case in Point: Josalynn Brown and Carolyn Wilson, who are both black, worked as nurses at a suburban Chicago hospital. They joined 10 other nurses in complaining to HR that Filipino nurses were receiving better assignments and training than black nurses. Hospital officials investigated, but couldn’t corroborate the claims.

Eventually, Brown and Wilson requested and were granted a transfer to another hospital owned by the parent company. But the complaints didn’t stop. Brown and Wilson voiced several protests to HR, including that their new supervisors were giving them the “cold shoulder” treatment and had engaged in mild name-calling, referring to one of the nurses as a “cry baby” and a “spoiled child.”

Brown and Wilson again asked to be switched to another location. This time, the request was denied. They sued the hospital for race discrimination and retaliation.

 

The verdict: Title VII of the federal Civil Rights Act makes it unlawful to discriminate against employees based on their race with respect to their “compensation, terms, conditions or privileges of employment.” But receiving the “cold shoulder” from a boss and mild name-calling does not rise to the level of actionable discrimination, the court said.

“The fact that someone disagrees with you (or declines to take your advice) does not, without more, suggest that they discriminated against you,” the court ruled. “Title VII protects against discrimination, not ‘personal animosity or juvenile behavior.’ Personality conflicts at work that generate antipathy and ‘snubbing by supervisors and co-workers’ are not actionable under Title VII.” (Brown v. Advocate S. Suburban Hosp., 7th Cir., 11/21/12)

3 Lessons Learned … Without Going to Court

1. Investigate immediately. The court noted that the hospital responded to the nurses’ race and retaliation discrimination complaints right away with an investigation. HR tried to connect the dots to see if the new supervisor’s conduct was motivated by the nurses’ previous discrimination complaints. However, the supervisors had no knowledge of the nurses’ previous complaints at the prior location, so no racial motivation could be shown.
2. Prohibit name-calling as a whole.Even though all name-calling behavior may not be illegal (the court noted the name-calling in this case made no references to race), it may create an unpleasant culture to work in. Even though the court said Title VII doesn’t protect “personal animosity or juvenile behavior,” name-calling can still cost big bucks to defend.
3. Make your harassment, discrimination and retaliation prevention policy stricter than the law.The prohibited conduct listed in your Harassment, Discrimination and Retaliation Prevention Policy should be stricter than what the law will allow in order to curtail these kinds of lawsuits. That being said, remember to include language like, “A violation of this policy does not necessarily amount to a violation of the law.” This will go far in showing that just because your culture will not tolerate certain behaviors it does not make engaging in them illegal in the eyes of the law.

Are You Liable for Harassment by Independent Contractors? Don’t you have enough to worry about with employees sexually harassing each other? But wait. There’s more. As a new ruling shows, employers can also be held liable for the behavior of third-party independent contractors in the workplace—even though they are NOT employees. Now, do we need an extra set of eyes and ears? Yes, indeedy it seems we do! Case in Point: Hospital employee Odalys Rosa Santos claimed she was harassed by two doctors who were working as independent contractors at the hospital. Santos alleged that an orthopedic surgeon often propositioned her for sex and would spank her in passing. The other physician, an anesthesiologist, allegedly made offensive sexual remarks to Santos on a number of occasions and touched her inappropriately. Santos complained about the contractors’ behavior to the hospital’s personnel director. Soon after, Santos alleged that high-ranking hospital workers stopped talking to her after she made the complaints. In addition, the hospital changed her work schedule, refused to allow her lunch breaks and assigned her duties outside of her job description. Santos eventually resigned. She sued both doctors and the hospital, asserting a hostile work environment, sexual harassment and retaliation under Title VII. The hospital argued that it could not be held liable for the alleged harassment because the doctors were independent contractors, not employees. While a lower court dismissed the claims, an appeals court sided with Santos and sent the case to trial. The court said an employer “may indeed be liable for a non-employee’s acts of harassment under Title VII if it knows or should have known of the conduct and fails to take immediate and appropriate action.” (Santos v. Puerto Rico Children’s Hosp., D.P.R., 9/28/12) The hospital also could not avoid liability based on the Faragher/Ellerth doctrine by arguing Santos failed to use the hospital’s complaint procedure. The court ruled the defense applies only to harassment committed by an employee’s supervisor and does not extend to that by a third party, even if the harasser has a certain amount of control over the employee’s work. Even if, as the employer claimed, Santos’ verbal complaint was not in accordance with the hospital’s written procedure for reporting harassment, it was enough to establish the hospital’s knowledge of the situation. The court warned, “It is not true that an employee only acts reasonably if the employee follows the employer’s formal procedure, and … the employer is entitled to ignore any notice of harassment that is outside of the procedure.” 3 Lessons Learned … Without Going to Court 1. Keep your eyes open. Keep a vigilant watch of who is working on your premises, including nonemployees. Make sure they get a copy of your organization’s harassment, discrimination and retaliation policies before stepping foot into your workplace. Consider sending the policy out along with the signed contract. These are the “house rules” and now everybody needs to know about them, including independent contractors. 2. Keep your ears open. “Notice” is “notice,” even if it wasn’t correctly reported up through the designated channels. Once an employer is on notice, it must take immediate action to stop the misconduct. It’s not a legal defense to claim the employee didn’t tell you the “right way.” 3. Keep your wallet open. If you don’t follow numbers 1 & 2 above, be ready to pass out the cash, even over contractors.

 

The anti-discrimination statutes are not a general civility code. Thus, federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. Rather, the conduct must be so objectively offensive as to alter the conditions of the individual’s employment. The conditions of employment are altered only if the harassment culminates in a tangible employment action or is sufficiently severe or pervasive to create a hostile work environment.

 

 

Hostile Work Environment Laws

There are no Federal “hostile work environment laws” or “hostile workplace laws” named as such. Creating a hostile workplace is prohibited under certain Federal discrimination laws (listed below).

Subsequently, to be illegal under one of the laws in the eyes of the courts, a hostile work environment typically must be caused by discriminatory workplace harassment based on race, color, religion, national origin, disability, age or sex. Additionally, the harassment typically must be severe, recurring and pervasive.

Lastly, the victim or witnesses typically must reasonably believe that tolerating the hostile work environment is a condition of continued employment. In other words, the victim or witnesses typically must reasonably believe that they have no choice, but to endure a hostile workplace in order to keep their jobs.

Defining the hostile work environment
According to the law, there are two forms of sexual harassment:

• Quid pro quo harassment, which means “this for that,” is where a supervisor threatens to fire or not promote an employee if he or she doesn’t have sex with that supervisor.
• Hostile work environment harassment is where speech or conduct is “severe or pervasive” enough to create a hostile or abusive work environment. Examples of inappropriate conduct of a sexual nature include sexually oriented jokes, sexually explicit e-mail, screen savers, posters, cartoons, and graffiti, and unwanted verbal and physical contact. The standard used by civil rights agencies and courts in determining whether a hostile work environment exists is whether a reasonable person, in the same or similar circumstances, would find the conduct offensive.

 

Put it in writing
Chrys Martin focuses on employment law from the management perspective in the Portland, OR, office of Bullivant Houser Bailey. She said that managers have “the legal responsibility to make sure the workplace is free from harassment or discrimination.”

“Managers should ensure that their employees do not feel uncomfortable because of behavior in the workplace, such as teasing, taunting, jokes, and inappropriate gestures,” said Martin.

To help create this environment, every employer needs a comprehensive policy that prohibits all types of harassment. “The policy needs to include a definition of what could constitute harassment or create a hostile work environment, information on who to report to, and a nonretaliation provision,” said Martin.

Employees must also be provided with a copy of the company’s policy and trained on what constitutes harassment and discrimination. In addition, employees need to know what steps to take if they become victims of such behavior.

Carol Merchasin, a partner at the Chicago office of Seyfarth Shaw, also works in the area of employment law. She designs and develops training sessions for clients on a wide range of employment law topics, including the Internet and dating relationships between managers and subordinates.

According to Merchasin, when courts rule against a plaintiff in a sexual harassment suit, many times it’s because a company can prove that it had a detailed harassment policy in place and that it took appropriate action when a report was made. Such measures can reduce a company’s and a manager’s liability.

Be professional and follow procedure
Managers need to know what is going on in the workplace at all times and be aware if inappropriate behavior exists, according to Martin. They also need to set an example by not engaging in harassment themselves and by stopping it immediately if they hear it or see it.

Merchasin said that it is important for a manager to use caution in the “danger zones, such as comments on personal appearance, jokes, cartoons, and nicknames that demean others on the basis of their race, gender, ethnic origin, religion, age, disability, and sexual orientation.”

“Remember, harassment can be created even if you did not intend to harass anyone. Even if no one complains to you, you need to be alert to conduct that is inappropriate and make sure that you put an end to it,” Merchasin said.

All violations must be reported immediately to the human resource department. Martin said, “The employer must take prompt remedial action to stop the harassment and make sure it does not recur, including discipline or termination of the offenders if need be.

“Employers have an obligation to maintain a workplace free from harassment and discrimination. They must stop behavior when they first learn of it rather than waiting until someone complains,” said Martin. “It is critical that employers train all managers and supervisors on what constitutes harassment and discrimination and how to deal with it if it occurs.”

Recent court decisions emphasize that it is not enough just to have a

            written harassment policy.  You also must make sure that it is

            implemented in an “effective” manner.  This standard means you must

            be proactive and take steps to apply your policy properly.  In particular,

            you must be prepared to conduct an investigation to determine the

            nature and extent of any alleged harassment.

 

* Basic Principles of Harassment Investigations *

 

As a general rule, all harassment complaints should be investigated,

even when the complaining employee requests that nothing be done or

when the complaint is anonymous.  The investigation should be

undertaken promptly and completed as expeditiously as possible, for

several reasons.

 

First, the disruption caused by actual harassment or rumors can be

substantial.  In addition, as time passes, evidence can be lost and

witnesses’ memories often become less accurate.  Furthermore, the

longer a resolution is delayed, the more stressful the situation becomes

for the complaining employee or for an unjustly accused defendant,

which can lead to subsequent legal claims for emotional distress.  And,

case law has established that employers are liable for failing to take

prompt and effective action to eliminate known hostile work

environments.  Therefore, investigations typically should be completed

within a few days.

 

            * Who Should Conduct the Investigation *

 

Ideally, the investigator should be a human resources professional who

is specially trained to conduct harassment investigations.  This training

helps assure that all important aspects of the situation are considered,

including whether multiple complaints have been received about the

same individual.  The investigator also should understand what

constitutes harassment under both your organization’s policy and the

law, in order to evaluate the complaint properly.

 

Whenever possible, it can be helpful to have a person from management

outside the human resources department assist in the investigation.  In

addition, when the allegations involve sexual or gender harassment, it is

a good idea to have both a man and a woman investigate the complaint

together.  Some employers use an outside investigator or the Board of

Directors if the complaint indicates that harassment is pervasive or

involves top management employees.

 

 

 

* The Investigation Process *

 

The process should provide a fair method for both sides to be heard and

to receive information.  Most experts recommend interviewing the

complaining party first to ensure that all important details and witnesses

are identified promptly.  Investigators should be sensitive to the

emotional nature of this type of investigation and should be prepared to

deal with employee embarrassment and anger and be patient, but firm,

in explaining that details are needed for an accurate investigation.

 

The interview of the alleged harasser may be even more difficult

because of the natural instinct of the accused to be defensive.

Therefore, interviewers must be objective and nonjudgmental and allow

the accused to respond to each allegation.  The investigator also should

explain the disciplinary action possible if the allegations are found to be

true.  However, investigators should not use threats to obtain

information, but should explain matter-of-factly the consequences of not

cooperating.  Both parties should be told to avoid contact with one

another, and you should implement measures to minimize this contact.

 

Witnesses also should be interviewed as soon as possible.  All

responses should be documented and, if possible, statements should be

reduced to writing and signed by the persons providing the information.

In addition, all participants in the investigation should be reminded that

their cooperation and confidentiality are required, that your policy

prohibits retaliation, and that any retaliation must be reported

immediately, should it occur.

 

            * Focus on Fairness *

 

Harassment investigations can be difficult and time-consuming.  But,

they are a vital component of your harassment policy.  If you conduct

them properly, they can help ensure that your decisions are based on

facts and perceived as fair.  And, in situations where you determine that

your harassment policy was not violated, a thorough investigation will

provide strong support if you are challenged in court or by a government

agency.