Dealing With Sexual Harassment

Pinups on the warehouse wall. A pat on the fanny at the water cooler. Sexy remarks in the hallway. Innocent enough, you may think. But such practices can make your company an uncomfortable place for many of your employees. So uncomfortable, in fact, that you are running the risk of being sued if you choose to ignore what the courts call a sexually hostile environment.

It was nearly a year ago, in June 1986, that the U.S. Supreme Court, in Meritor Savings Bank v. Vinson, confirmed what some lower courts around the country have told employers for years: if your employees have to contend with sexual innuendo as part of the daily nine-to-five, your company -- not just the offending employee -- could be held liable for violating federal and some state laws against sexual harassment. An employee no longer has to show a tangible loss, such as missing out on a promotion or losing a job, to win a sexual-harassment case. A hostile or offensive work environment can be grounds for a successful lawsuit.

What some people might think of as mere pranks -- exposing undershorts covered with hearts, for example -- the courts may call sexual harassment. Requiring an employee to wear a uniform because of his or her sex can be the basis for a sexual-harassment claim, whether the employee is a bank teller, bartender, elevator operator, or whatever.

Of course, not every dirty joke amounts to sexual harassment. Courts recognize that antidiscrimination laws aren't intended to mandate clean language. When do sexually aggressive words, touching, flashing, or the prominent display of girlie posters and the like cross the line from legally accpetable behavior to sexual harassment for which you may be legally liable? That's exactly the rub: courts will continue to decide case by case. If I had to give you a rule of thumb, I'd suggest you put yourself in the shoes of those likely to be harassed by what they encounter on the job. Is unwelcome sexual innuendo more than trivial or occasional? Does it significantly color the work environment?

While the Meritor Savings Bank case extended employer liability by one measure, it has also offered employers greater protection. Until Meritor, many courts around the country had said that you as a top manager are always responsible if one of your managers or supervisors creates a hostile working environment, even though you may have known nothing about the problem. In the Meritor case, the Supreme Court decided that whether or not you'll be held responsible depends on the particular circumstances. Three issues are likely to be critical:

1. Did your managers use the stature that comes from their jobs to create the hostile environment, or was their behavior purely personal?

2. Did you know about the problem -- or should you have known about it -- and did you take effective action to stop it?

3. Did you have a well-articulated grievance procedure that made it reasonably easy for employees to discuss sexual harassment with managers who could do something about it?

The dollar consequences of losing a sexual-harassment claim can be substantial even when the victim is an employee with limited earning power. In addition to back pay, an employee can seek actual damages, which may include pain and suffering, and punitive damages. The court can also order you to change the way you run your business. It may require that you hire extra managers, for example, or that you separate certain workers from one another.

Your best protection against claims, of course, is to be genuinely concerned about your employees and to do what you can to make your company a good place for people to work. And that probably includes not only a particular attitude on your part, but also a program to prevent sexual harassment. Here are some suggestions:

* Discuss the issue of sexual harassment with all employees and advise them that harassing another employee violates federal law and, in some situations, state law.

Make sure your employees understand what sexual harassment includes. It will probably come as a surprise to many that offensive words and pictures can be illegal. Announce -- and post -- a clear policy stating that victims will get help and offenders will be disciplined. It's not enough just to have a policy, however; you must enforce it as well. The Federal Aviation Administration, for example, had a policy forbidding sexual harassment and even had seminars for its supervisors. It lost a case brought against it, however, because it was clear from the testimony in court that the policy wasn't effective enough. The managers knew about the harassment and even participated in it.

* Establish a procedure that harassed employees can use to get help from management. It should provide for quick action and confidentiality, and it should ensure that any employee can easily speak to a manager not involved with the harassment.

Just having a general procedure isn't good enough. The Meritor Bank had an established grievance procedure, but the plaintiff was afraid she'd lose her job if she used it, and the court deemed it ineffective. One fatal flaw: the plaintiff would have had to take her complaint to the manager who was harassing her. A procedure doesn't have to be complicated to be effective. You may send a letter to all employees advising them of your policy on sexual harassment. Tell them if they're concerned about this problem, they needn't go through usual reporting procedures. They can talk to anyone in management. In addition, you may want to identify one person whom they can contact about sexual-harassment claims, so employees who may be timid about raising the issue will have an easy entry into the management hierarchy.

To help assure a speedy response, give your managers deadlines. For instance, require that they begin their investigation within 24 hours after receiving a complaint about sexual harassment. At a minimum, this would mean meeting with a harassed employee, discussing the situation, and identifying other people to talk with.