Sexual harassment has receive widespread media attention over the past few years, first attaining national recognition with Anita Hill's testimony at the confirmation hearings of United States Supreme Court Justice Clarence Thomas, and culminating with a jury verdict of $7,000,000 in the case involving a secretary's claims against a partner in the California law firm of Baker & Mackenzie.
The filing of sexual harassment complaints is on the rise. The Rhode Island Human Rights Commission reports that the number of sexual harassment complaints increased by more than 90 percent from 1993 to 1994.
Over the past three decades, the courts have identified two distinct types of sexual harassment. "Quid pro quo" sexual harassment occurs when a supervisor demands sexual favors from a subordinate in exchange for tangible job benefits, such as hiring or promotion, or for protection from job detriments, such as firing or demotion. "Hostile work environment" sexual harassment occurs when work-related verbal conduct or physical touching adversely affects the employee's ability to perform his or her job functions.
Corporate Strategies For Protection
In keeping with the adage that "an ounce of prevention is worth a pound of cure," perhaps the most effective tool an employer can utilize against sexual harassment liability is a comprehensive harassment policy. The policy should include:
- a definition of sexual harassment;
- an explicit statement against sexual harassment that is clearly and regularly communicated to all employees;
- a procedure that enables employees to register complaints;
- assurance of prompt, thorough investigation of complaints;
- assurance of prompt, effective remedies, including protection of complainants and witnesses from retaliation; and
- provision of specific sanctions for sexual harassment.
Ideally, there should be more than one person designated to receive complaints; a victim of sexual harassment should not be required by office policy to lodge her complaint with her supervisor when the supervisor is the subject of her complaint. The sexual harassment policy should be applied in a straight-forward and even-handed manner, without concession or exception.
Policy Dissemination And Training
The mere existence of a sexual harassment policy is not sufficient to protect an employer from liability. An employer must take measures to disseminate the policy actively and regularly to all employees. A sexual harassment policy posted on employee bulletin boards or above office copying machines likely will attract only limited and short-lived notice. At a minimum, all employees should receive biannual copies of the sexual harassment policy, as well as immediate notification of policy amendments. New employees should receive copies of the policy as soon as they commence employment. The policy also should be included in the employer's employee handbook.
Moreover, the employer should consider, as part of its regular dissemination of the harassment policy, "consciousness raising" or awareness training sessions. These sessions are useful because they generate discussion and help create specific guidelines which identify and respond to inappropriate behavior. Consultants may be hired to conduct such sessions.
Investigating The Complaint
An employer should investigate each and every sexual harassment complaint. For example, when an employee lodges a complaint against her supervisor but withdraws it shortly thereafter, or a complaint is filed by a witness rather than the victim of the alleged harassment, or an employee describes his or her "suspicions" that another employee is being harassed, these complaints should be investigated. Investigation of all claims will protect the employer from charges that the company is unfair and/or insincere in its efforts to prevent sexual harassment. Moreover, it appears that prompt, thoughtful attention to sexual harassment matters reduces the likelihood of costly, time-consuming litigation.
Who should conduct the investigation? The answer depends upon the unique facts and circumstances of each case. Choices include the human resources/personnel department, higher-level executives, in-house counsel, outside counsel, or a combination of some or all of the above. The benefits of designating experienced members of the personnel department typically include their training and familiarity with sexual harassment and other forms of employment discrimination, and their position as "neutral" parties. Many companies, however, are not large enough to employ personnel staff or in-house counsel. In such instances, the employer may designate one or more discreet, responsible individuals with proven good judgment to conduct the investigation.
An employer's thorough and prompt corrective action in response to a sexual harassment complaint is critical to liability reduction and prevention. In fact, even before or during the investigative process, the employer may elect to separate the employee and the alleged perpetrator, if they are in the same department; temporarily transfer one of them (preferably the alleged perpetrator); or suspend the alleged perpetrator with or without pay.
If upon completion of investigation, the employee's story is credible, and the alleged perpetrator is disbelieved, the employer should take immediate steps to discipline the perpetrator. The manner of discipline is measured by the severity of the inappropriate conduct, the past history of the perpetrator and the input provided by the employee. Discipline includes verbal and/or written warning (placed in the personnel file), transfer, withholding of a raise and/or promotion, the imposition of a probationary period, suspension and termination.
In most cases, employers investigate claims themselves, rather than having their attorneys do so. Exceptions to this rule typically involve severe charges such as rape, complex facts which may include multiple victims or perpetrators, or an employer's unfamiliarity and/or inability to conduct a proper investigation. In all cases, however, it is advisable for the employer to seek legal advice before, during, and after the investigation.