Understanding Sexual Harrassment Liabilities

Remember the Army sex scandal a few years ago? Amid allegations of rape, death threats, hostile work environment and quid pro quo harassment, the Army scrambled to explain why it received 5,000 sexual harassment complaints through a hotline. From this public media event, we learned that sex in the workplace, even the Army, hadn’t really changed over the years. But the liabilities had.

If your company offered a confidential hotline for employees to report harassment, what do you think you would find? Do you feel confident that your managers and supervisors definitely understand the meaning of and liabilities associated with sexual harassment? What we know from handling thousands of these situations is that many managers don’t yet understand. Or, if they do, they seem to forget the rules.

CHANGING TIMES. Just about anything can constitute harassment depending on who is defining the terms. In the past three years, there have been a number of new developments and Supreme Court cases that have actually redefined sexual harassment. For example, same-sex harassment (regardless of sexual orientation) is now illegal under Title VII of the Civil Rights Act. And, employees who refuse unwanted sexual advances, but who suffer no negative job consequences, can file suits. In other words, threats alone create liability.

Perhaps most unbelievable of all, today an employer can be held liable for sexual harassment by a supervisor, even if he or she had no knowledge of the supervisor’s misconduct. Gone are the days of hear no evil, see no evil, know no evil. Today, if you receive a charge of sexual harassment discrimination and you can’t prove that you tried to prevent or eliminate the liability, you’re guilty.

There’s no question that the rules have changed. And, don’t forget virtual communication. With e-mail, graphic websites and photographic scanning ability, employers have a whole new set of challenges. Regardless of these changes, the bottom line from government agencies and courts is clear: whether or not a company has seen or knows about harassment, there is a responsibility for preventing and eradicating it. With this in mind, there’s never been a more compelling reason for companies to do all they can to prevent and correct harassment.

REDUCING RISK. What can you do to reduce exposure to sexual harassment? We recommend a three-prong approach.

First, develop, disseminate and vigorously enforce a policy against harassment. Ensure your policy prohibits same-sex harassment and cyber-sexual harassment, provides multiple channels for making complaints known to management, ensures confidentiality to the extent possible and prohibits retaliation.

Second, conduct periodic sexual harassment training at all levels. Include the CEO or president and all managers. Document attendance.

Third, take every complaint seriously and investigate immediately. It doesn’t matter if the complaint is lodged by a "habitual trouble-maker" or if it seems trivial.

A lot of sexual harassment incidents in the workplace could be avoided by simply ensuring professional communication. Managers must "model the behavior desired and required." Here are other common sense tips for management:

• Avoid references to employees’ physical appearance and comments about sex.

• Develop and distribute a computer-use policy prohibiting sexually related e-mail, graphic photographs and vulgar websites.

• Avoid physical contact with employees — respect an individual’s personal space.

• Use appropriate settings when conducting meetings outside the workplace.

• Prior to holiday parties and social events, re-communicate your policy prohibiting harassment.

• Be conscious that "no" means "no," no matter how softly spoken.

• Workplace favoritism can lead to "hostile environment" claims.

• Do not condone offensive terms, sexually degrading words or sexual jokes.

• Avoid workplace romances. They can be fertile ground for hostile work environment claims and often lead to "professional suicide."

• Watch for signs and learn how to read people. People want to be ac-cepted by their peers and may be reluctant to report harassment.

• Remember, employers and supervi-sors may be liable for harassment after only one incident, depending on the nature and severity of the incident.

• Keep all sexually related objects, pic-tures, magazines, videos, etc., out of the workplace.

• Don’t assume that an employee’s initial acceptance of harassing conduct waives his or her right to complain later. Conduct that is initially welcomed may later be unwelcome.

• Forget the "it was invited" defense; participation in sexual conduct and provocative speech or dress do not show that sexual behavior was welcomed.

• Remember that managers can be held personally liable for their actions.

Employers may also be liable for acts of non-employees with regard to sexual harassment of employees in the workplace. Furthermore, employers could be liable for claims of sexual harassment when an employee is sexually harassing people outside the company. In these cases, employers relieve much liability when they respond quickly to complaints.

The best way to reduce your exposure and limit liability is to take proactive measures to discourage harassment in the workplace, including proper and ongoing training of managers and supervisors. An annual management workshop covering this topic and updating managers on changes in employment regulations is smart. If you haven’t had a training session on sexual harassment within the last year, now is the time.

Don’t wait before it’s too late. One claim can ruin careers, tarnish the company image, de-motivate workers and result in monetary liability. Wouldn’t it be much wiser to prevent all this?