Sexual Harassment

To the guys at the Navy Tailhook Convention in 1991 tearing the clothes off Lieutenant Paula Coughlin was just "boys being boys," to senator Bob Packwood those lingering kisses were his way of "being friendly," and to an executive of Forklift Systems, Inc., those lurid suggestions about negotiating a female employee's pay raise at a motel, and the request that she fish coins out of his front pants pocket were "just joking."

The result of all the aforementioned high jinks was the resignation and demotion of a couple of admirals, the disgrace and dismissal of a prominent senator from the U.S. Senate, and a very expensive law-suit. Each of these incidents is an example of sexual harassment and a violation of federal law. More important, in the interest of self preservation, every business owner ought to be aware of the provisions of the Civil Rights Act of 1964 that deal with the sensitive subject of sexual harassment.

WHAT IS IT? The broad definition of sexual harassment is "unwelcome sexual conduct that is a term or condition of employment." The harassing events need not be sexual in nature, it is enough if they oc-curred because of the victim's sex.

Additionally, men as well as women can be victims of sexual harassment, although it should be noted that the charges brought by men are sufficiently minute to be classified as clinical oddities.

Harassing conduct can take many forms and includes slurs, jokes, statements, gestures, pictures or cartoons. Included are unwelcome sexual flirtations, advances, comments or propositions, verbal abuse of a sexual nature; subtle pressures or requests for sexual activities; physical contact, including touching, pinching, blocking normal movement, massaging, rubbing, or brushing the body; graphic comments about an individual's body; a display in the workplace of sexually suggestive objects, pictures or cartoons; sexually explicit or offensive jokes; and physical assault.

Sexual harassment charges under Title VII of the 1964 Civil Rights Act and a 1992 amendment, are federal offenses and are typically filed with the Equal Employment Opportunity Commission (EEOC). However, many states have similar agencies dealing with the subject as in the case of California's Department of Employment and Housing. Such agencies have jurisdiction to investigate and remedy claims of unlawful harassment.

The courts have defined two distinct types of sexual harassment:

1) Quid Pro Quo: This is the traditional demand for sexual favors by a supervisor in exchange for a job benefit to the subordinate. This type of harassment can be committed only by a supervisor or some member of the company hierarchy with the power to confer or withhold a tangible employment benefit.

2) Hostile Environment: This occurs when an employee is subjected to unwelcome sexual conduct based on gender that is sufficiently pervasive or severe to unreasonably interfere with job performance or create an abusive or hostile work environment. Examples of offensive behavior are lewd comment, suggestive inquiries or jokes, the use of sexual epithets, the prominent display of pornographic materials in the workplace, and unwelcome sexual touching.

Two classic cases indicating the thinking of the courts on different aspects of sexual harassment can be offered as guidelines to understanding an admittedly convoluted subject, Vinson v. Meritor State Bank and Harris v. Forklift Systems., Inc.

The vice president of the Meritor State Bank repeatedly demanded that the plaintiff, a female employee, have sex with him. At first the defendant refused, but eventually relented out of fear of losing her job. Additionally, the woman claimed the defendant fondled her in front of other employees, and exposed himself. She never reported these incidents because under bank procedures she would have to take her case through the defendant first. After 2½ years and more than 40 sexual episodes, the plaintiff called it quits and sued the bank for sexual harassment. She claimed the bank tolerated a hostile environment which therefore constituted sexual harassment and thus discrimination. The defendant vice president denied all allegations.

The Federal District Court dismissed the suit on the ground that the plaintiff had voluntarily consented to sex and that she hadn't suffered economically.

Subsequently, an appeals court reversed the ruling and the matter went before the Supreme Court. In 1986, the U.S. Supreme Court ruled that sexual harassment is a kind of sexual discrimination and upheld the verdict of the appeals court. The ruling further states that the plaintiff could claim sexual harassment regardless of whether she consented to sex. Additionally, the court held that the woman did not have to prove she was hurt economically, only that her work environment was hostile. The plaintiff then settled with the bank for a generous, undisclosed sum.

In cases that make it through the courts, the burden is on the victim to somehow demonstrate that the harassment was unwelcome and that she objected in some way, for instance, by distancing herself from the alleged offender.

Harris v. Forklift Systems., Inc., answers the question: If a woman doesn't have to show economic injury, does she have to prove she suffered psychologically? Ms. Harris had been a manager at Forklift since 1985. During that time an executive of Forklift frequently referred to her as a "dumb ass woman" and in front of other employees would suggest that she fish coins from his front pants pocket. He also invited her to a motel to discuss a raise (quid pro quo). When the plaintiff complained, he said he was just joking. Later, when the woman landed a big job for the company, the executive, again in front of other employees, asked her if she had promised the customer sex in order to land the contract. With that, the plaintiff collected her paycheck, quit, and sued the firm for sexual harassment in a hostile environment.

Both the Federal district court and the appellate court held against the plaintiff on the ground that the boss's comment did not seriously affect the woman's psychological well being or lead her to suffer injury.

In 1993, the Supreme Court unanimously overturned the lower court's rulings, holding that a victim of sexual harassment did not need to prove psychological injury. Justice Sandra Day O'Conner wrote the opinion, reasoning that the law should not be limited to behavior that would seriously hurt a person's psychological well being "so long as the environment would reasonably be perceived...as hostile...or abusive...there is no need for it to also be psychologically injurious."

WHAT ABOUT THE PEST CONTROL INDUSTRY? Stewart Bernstein, an attorney specializing in labor matters for the Chicago firm of Mayer, Brown and Platt, advises that the law covering sexual harassment is confined to the workplace or the working environment. As far as the pest control industry is concerned, this would seem to mean within the company offices or, possibly, in the case of interaction involving company workers, on a job site.

Important to all cases of sexual harassment is the requirement that the complained conduct be unwelcome; that is, unsolicited sexual conduct that the employee regards as undesirable and offensive. A victim's "voluntary" submission to sex, as in the Meritor State Bank case, has no bearing on a determination of welcomeness. The courts declare that it must be determined whether the victim's actions, such as use of complaint procedure, were consistent with the assertion that the conduct was unwelcome.

It is important for business entrepreneurs to know that employers are strictly liable for quid pro quo harassment whether or not the company knew of the harassment. In "hostile work environment" cases, an employer is liable even if no economic

harm results if: 1) the employer knew or should have known of the harassment; and 2) after learning of the harassment, it failed to take prompt, effective remedial action.

About 30,000 complaints are filed with the EEOC each year and the number is growing. In addition, a Louis Harris & Associates 1994 survey indicated that 31% of women surveyed claimed sexual harassment in the workplace, with only one-third of them taking action. A recent survey of 90,000 women in the military shows that 55% report they have been harassed, according to Parade magazine, but interestingly, although the numbers are high, they are down nine percentage points from the last survey taken in 1988.

Dr. Deborah Tannen, a linguist on the faculty of Georgetown University, has written several books on the interactions and conversational styles of men and women working together. In Talking from 9 to 5, Tannen states the problem clearly: "Just mentioning the term `sexual harassment' sets off anger and indignation, although these emotions may be aimed at different aspects of the phenomenon — anger at what is perceived as sexual exploitation or the new preoccupation with it." As explained by attorney Kim Leffert of Meyer, Brown and Platt at their Midwest Territory Conference in 1995, there is a heavy price to pay for a company found guilty of sexual harassment charges in the workplace. Above and beyond the humiliation and unfortunate publicity attending such a situation, there are high economic costs. Studies have shown that harassment at work leads to low morale, high absenteeism, and general reduction in productivity — all of which translate into dollar losses for employers.

According to a government report, sexual harassment cost the federal government $267 million from May 1985 through May 1987 for the cost of replacing employees, sick leave for missed work, and reduced individual and work group productivity. In the private sector, harassment costs management at a typical Fortune 500 company almost $7 million a year.

As if all this weren't enough, litigation costs have to be considered. A successful claimant in a sexual harassment suit can get back pay, benefits, reinstatement, compensatory and punitive damages, and attorney's fees.

On the face of it, with all the noisy publicity attending the televised hearing that pitted Professor Anita Hill of the University of Oklahoma Law School against Judge Clarence Thomas, then a candidate for an appointment to the Supreme Court, you would think sexual harassment in the workplace was running rampant. Then there are the recent, highly publicized problems about women in the workplace at the Mitsubishi plant in Illinois and the brouhaha concerning the admission of women to the Citadel, the vaunted military college in South Carolina. Understandably, one is sometimes tempted to conclude that there is a general war between the sexes taking place; that males working with women have reason to be paranoid.

But the fact of the matter is such thinking is nonsense. There are tens of thousands of workplaces including — we're willing to bet the farm — the majority of pest control companies, where there is mutual gender respect and an easy working relationship without the threat or appearance of sexual harassment.

In an article entitled "Sexual Harassment — Setting the Record Straight" that appeared in the January 1995 issue of Ladies Home Journal, author Andrea Gross addressed some popular misconceptions:

1) A man can't even compliment a woman on her dress anymore. Of course he can. Almost any interaction — from a casual compliment to a full scale relationship — is legally possible if both parties welcome it. Moreover, in order to constitute sexual harassment a behavior must be "severe" or "pervasive" and must interfere in a serious way with the work environment.

2) She must have liked the way she was being treated or she would have said no. Not so. It's not always easy to say no. A woman who does so can risk being fired by her boss or being sabotaged by her co-workers. Yet, if she does bring charges, she'll have to prove that the behavior was unwelcome.

3) Women bring sexual harassment charges at the drop of a hat. No. Most women who are sexually harassed don't sue. In fact, most don't even bring a formal complaint. They're aware of the costs of litigation, of being forced to speak publicly about embarrassing events and being shunned by fellow employees, and discriminated against by supervisors.

4) Sexual harassment is about lust and provocation. It is about power. Any time one person is disrespectful of another he's really demonstrating his power. It's a way of saying: "I don't care what you think or feel."

PREVENTION IS KEY. So how does the harried owner of a pest control company already besieged by pressures and regulations that grow like the nests of cockroaches in a steamy, greasy kitchen deal with the issue? How does the business person protect against what could turn into a nasty mess?

Steve Petouvis, the personnel director of Western Industries, the Parsippany, N.J., pest control giant, has the one-word answer: Prevention. As with many other problems in the workplace, owner-operators should face the fact that temptations of all kinds are a fact of life. The surest way to deal with them is to take action that sends a clear message to the company and reduces the chances of sexual harassment problems happening in the first place.

Karen Nussbaum is particularly well informed about the workplace sexual harassment problem. Nussbaum currently is the director of the Working Women's Department of the AFL-CIO in Washington, D.C. Prior to her present position, she was a founder, in 1972, of "9 to 5," an organization concerned with the welfare of women office workers, and is the former director of the Women's Bureau of the U.S. Department of Labor. Asked her ad-vice on what business owners can do to forestall sexual harassment charges, Nussbaum said: "The key is to educate employees as to what sexual harassment is and to establish clear lines of communication to handle the problem. She went on to explain that once employees know they have recourse to relief, the entire workplace benefits.

The following suggestions are offered by the legal profession for reducing sexual harassment in the workplace:

l Have a firm policy defining and prohibiting sexual harassment. The policy should include a procedure to complain to a supervisor or other management official if the supervisor is the harasser.

l Investigate every claim of harassment immediately. This should include confidential interviews of all parties and witnesses.

l Take effective remedial action commensurate with the offense. Punishment for a harasser can range from warning to suspension to termination.

l Let the employees know that management is very concerned about preventing sexual harassment. Insist on a professional workplace where crude jokes and raunchy posters have no place. And don't lose sight of the fact that a written policy is only as good as the management that enforces it.

There is no way of knowing at this juncture how many PCOs have implemented policies for their personnel in the matter of sexual harassment. However, what the folks at Western Industries have done as related by Steve Petouvis can serve as a model for the entire industry (see page 70):

1) Consultation with the company attorney.

2) An extensive training program with managers and

supervisors.

3) A written policy that clearly spells out mechanisms for recourse by aggrieved employees.

4) Notification of the policy to all employees.

5) Publishing the policy in the employee handbook.

So whether yours is a small firm, a middle size firm or a large firm, the bottom line is that you and your employees should have an understanding of the law dealing with sexual harassment in the workplace. It is wise to have a written policy on this delicate subject, and it is imperative that abiding by the provisions of this policy is a way of life at your shop. You never can tell.

Bob Berns is a free-lance writer based in Wilmette, Ill.