Sex In The Workplace

A Pop Quiz on Sex in the Workplace

Michael D. Freeborn

(Reprinted with permission from Petroleum Equipment & Technology, September, 1998)

OK, class. It's time for a pop quiz. You'll like this one, because it's about sex. Or maybe you won’t, since it's actually about sexual harassment. There’s an important difference, which apparently some people don’t recognize.

Pencils out?

Answer the following questions True or False (no fair peeking at the answers):

1. Victims of sexual harassment can successfully sue their employer, even if they did not suffer any "tangible employment action, such as discharge, demotion or undesirable reassignment."

2. They can win the suit even if they failed to complain about the abuse at the time.

3. They can do so even if the employer was unaware of the problem.

4. They never have to prove the employer was negligent.

If you answered True every time, you get an A. You can skip ahead to the next article in this award-winning publication. Or, for extra credit you can take a moment to explain your answers in a short essay. (Please do, for the benefit of the rest of us.)

Many of our readers, who are likely to have answered False at least a couple of times, would like to know how this can be -- in America, the land of liberty and due process, where everyone is presumed innocent until proven otherwise.

In a double-header, the U.S. Supreme Court recently issued a pair of momentous opinions on the same day. In the Burlington Industries and Faragher cases the court established, for the first time in the history of the republic, a three-step approach to resolving allegations of "hostile environment" in the workplace.

First, if a supervisor’s harassment results in the victim suffering a tangible, adverse employment action, the company is almost ALWAYS going to be liable for the damages. The court reasoned that because a company is in control of the workplace, it should be held strictly liable if it permits a hostile environment where a supervisor can harass subordinates. Since the company put the supervisor in a position of power in the first place, the company should be vicariously responsible for the supervisor’s misconduct.

Second, even if the victim does NOT suffer such a job detriment, the employer may still be liable for the harassment. The harassment itself is injury. However, the employer MAY have a defense in this circumstance.

This brings us to the third step. If no adverse employment action is taken against the employee, the company CAN prevent liability or significant damages for such "hostile environment" harassment by proving its innocence.

To establish this defense, the company must show that it took "reasonable care to prevent harassing behavior," that it responded promptly to any signs of trouble, and that the plaintiff "unreasonably failed" to complain about abuse. (Apparently, the court contemplates that there can be failures to complain which are reasonable.)

Note the remarkable shift in the burden of proof. The court says the COMPANY can prove its innocence. Justice Clarence Thomas, joined by Justice Antonin Scalia, lamented the brave new world in which employers cannot possibly prevent all harassment in the workplace "without taking extraordinary measures – constant video and audio surveillance, for example – that would revolutionize the workplace in a manner incompatible with a free society."

In their dissenting opinion, Justices Thomas and Scalia argued that employers should be liable for a supervisor’s harassment only if they are found to be negligent. But the seven other justices disagreed. In effect, the company must instead prove that it was not negligent and that the plaintiff was.

So what can an employer do? What evidence can prove your innocence? And if you fail, what else can you do to minimize exposure? Here’s my Top Ten List of steps an employer can take.

Write, or update, a harassment policy directed to employees, which clearly defines the improper conduct and expresses the company policy against it. (There are plenty of HR consultants and law firms, including ours, who have been down this road already if you need help.)
Communicate this policy to employees in as many ways as practical. Post it on bulletin boards, discuss it in employee seminars, distribute it during employee orientation, include it on your intranet or internet pages. Get the word out.
Set up a formal complaint procedure which can by-pass a harassing supervisor, and also protect the employee from retaliation because of the complaint. Consider a "hot line" on a dedicated voice mail or answering machine.
Conduct training seminars with the supervisors to explain the policy and the complaint procedure.
Conduct training seminars for the employees as well. As the Supreme Court said, the employer must "properly communicate the policy to its employees."
Prepare a detailed acknowledgement of the policy to be discussed and signed by each supervisor, and placed in their personnel file.
Develop a review and approval process for terminations and, perhaps, other adverse personnel actions, to guard against taking those which might constitute sexual or other harassment. The exit interview may be too late.
Put somebody important in charge of compliance, and make sure everybody in the company knows who to contact.
In response to all complaints of harassment, document what you’ve done, to establish that you’ve taken prompt, effective remedial action.
Finally, look into insurance coverage for the litigation costs which are bound to result from all this, no matter how careful you are.