Dealing with Workplace Sexual Harassment
Kurland, Orin M., Risk Management
As the spectacle of the U.S. Senate confirmation hearings on the nomination of
Clarence Thomas to the U.S. Supreme Court unfolded amidst sexual harassment charges leveled against him by Anita Hill, it soon became apparent just how difficult, painful and embarrassing such a charge can be for both the accuser and the accused. it also became self-evident that there is a wide spectrum of opinion on what constitutes sexually harassing behavior, whether it be off-color locker-room humor or actual physical contact. Now that the issue of sexual harassment has surfaced, and given the all-too-often incorrect interpretations of its meaning, it's imperative that risk managers consider urging their employers to adopt a company policy on sexual harassment that establishes measures to prevent their companies from being drawn into a lawsuit.
Joan S. Morrow, a partner with Rider, Bennett, Egan & Arundel in Minneapolis, recently discussed policies and procedures to deal with sexual harassment in the workplace at the 20th Annual Risk Management Seminar, held at the Minneapolis Convention Center and sponsored by the Minnesota Chapter of the Risk and Insurance Management Society. According to Ms. Morrow, sexual harassment can be defined as "unwanted or unwelcomed sexual behavior." But confusing the matter is the fact that every kind of "illegal" conduct, whether it be propositioning or physical contact - will be "legal" as long as the action is welcomed by the receiver.
Currently, there is no objective standard over what exactly constitutes sexual harassment. So "while the debate of what is sexual harassment rages on, one thing is clear - risk managers want to do everything they can to keep a sexual harassment lawsuit out of their companies," she added.
Ms. Morrow explained that there are two basic forms of sexual harassment. The first is "quid pro quo" sexual harassment, which can be committed only by a supervisor or employer that has some power over the complainant. This power relates to either giving or withholding some important aspect of employment. A supervisor acting in such a manner, Ms. Morrow asserted, "will almost always make the company liable whether the employer knows about it or not, because the supervisor's conduct will be imputed to the company." Quid pro quo sexual harassment can also lead to lawsuits by third-party complainants - those employees who are not sexually harassed but see others who, as the objects of such behavior, are receiving preferential treatment, higher pay raises or promotions.
The other principal form of sexual harassment relates to a "hostile work environment." Under this scenario, a hostile (or uncomfortable or embarrassing) atmosphere of constant joking or touching - actions not tied to promotions or salary increases exists wherein it unreasonably interferes with a person's ability to do his or her job. This form will not automatically lead to employer liability. "The employer will be liable for hostile environment sexual harassment only if he or she knew or should have known of what was going on," Ms. Morrow held. The standard of welcomed versus unwelcomed sexual behavior still applies.
Offensive Behavior Policy
Whsta is an employer obligated to do? Ms. Morrow asked. "Simple - provide a workplace free of discrimination in general and sexual harassment in particular. And when there is a complaint of sexual harassment and it appears that this form of behavior may be occurring, look into it and take action if there is a problem."
So how does a company go about achieving this goal? A first step to eliminating sexual harassment from the workplace is to adopt a complaint procedure and a sexual harassment policy. Ms. Morrow's firm utilizes an "Offensive Behavior Policy"- so-called because sexual harassment is not the only form of behavior risk managers may want to eliminate from the workplace. And no matter how large or small one's company may be, if it doesn't have such a policy, "adopt one immediately; it will hold your company in good stead and may steer a complaint to you directly rather than to a lawyer or the Department of Human Rights," Ms. …