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Sexual Harassment Sexual harassment today has changed slightly from the early nineties. There is more recognition now and more cases being brought up. Courts now grant relief for sexual harassment far more often than they did initially. Today, courts will more likely find an illegal hostile work environment present when the workplace includes sexual propositions, pornography, extremely vulgar language, sexual touching, degrading comments, or embarrassing questions or jokes (Owen, p. 117). What has become a big issue the last couple of years for companies is liability. Employers may protect themselves from liability by taking immediate and appropriate corrective action.
To do so, companies need to institute comprehensive, detailed, and responsible sexual harassment policies. The courts have advised employers to look carefully at their current grievance procedures. Given the high stakes in sexual harassment these days, many employers are unprepared to protect their own interests, and those of their employees. Companies that want to lessen their risk must act before the problem occurs.
First, companies need a comprehensive, detailed written policy on sexual harassment. Second, they need to distribute this policy to all workers, supervisors, and even some non-employees. Companies should have grievance procedures that encourage employees to come forward with sexual harassment complaints. They must also enforce these policies. These policies will surely fail if they are not enforced quickly, consistently, and aggressively.
Once a company has received notice of sexual harassment, its liability may be reduced or eliminated depending on how quickly and effectively it responds. In the last few years, the major part of sexual harassment has been company liability. How the company handles the claim against them plays a big part in whether they will be liable or not. The victims of sexual harassment may be a man or a woman. The victim doesnt have to be of the opposite sex.
The harasser can be the victims supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee. The victim can also be someone affected by the offensive conduct, not particularly the person harassed (Ahmed, p. 59). Unlawful sexual harassment may occur without economic injury to or discharge of the victim. The harassers conduct must be unwelcome. The victim should go directly to the harasser and inform them that their conduct is unwelcome. The victim should also use an employer complaint mechanism or grievance system available.
There are certain things that a victim should do. Dont be quiet. If there has been a violation, let the world know, especially if others may be near. Dont be so nice. Socialized to swallow their complaints, women often allow themselves to be maneuvered into situations. When faced with someone whos unreasonable, just say no.
Dont be so private. Use public staff meetings to discuss unwelcome behavior. Without naming names, but with the offender in the room, sketch the nature of the harassment and ask the group if you were right to feel troubled. Next, say that you expect the harassment to stop or youll file an official complaint. Do the paperwork.
Dont wait to file a complaint. Waiting will ruin the victims credibility. Make dated notations in a date book and jot down anything that is relevant. Grow up and lighten up. Recognize that freedom isnt free; standing up to the harasser may cost the victim her job, promotion, or a friend.
In the end, only the lawyers win when the battle gets to a courtroom. There isnt always something a woman can do about unwanted male attention until after the fact, but when there is, women have to act (Holmes, p. 85). The victim can do more than they think. The Supreme Court issued two sexual-harassment rulings that should both worry and hearten employers. On the downside, the court ruled that under Title VII of the Civil Rights Act of 1964, companies can be held liable for the illegal harassing behavior of supervisors even when top managers had no idea that it was going on and were not negligent in any way. This was the strongest statement yet of employers' liability for supervisors' actions.
It resolves all doubt about supervisors being liable for sexual harassment, whether the company knows about it or not, " says Ernest Rossiello, a Chicago attorney who represented one victorious plaintiff, Kimberly Ellerth. "The Supreme Court has made it clear that companies will virtually automatically be liable. " (Hussain, p. 44) On the upside, the court clearly explained for the first time how employers can insulate themselves from many if not all harassment suits. The court's rulings in the two cases thus gave both sides something to celebrate. The plaintiffs's up porters hailed what they called victories for harassed employees. "The court's decisions will literally benefit millions of Americans, " said Steven R. Shapiro, national legal director of the American Civil Liberties Union, which had filed a brief in support of the plaintiff's position in one of the cases. (Hussain, p. 47) Attorneys on the business side said, though, that the new rules are tougher than before but are much easier to follow.
Under the two court decisions, "both the employer and the employee have clear responsibilities, " says Stephen A. Boat, executive vice president of the National Chamber Litigation Center, an affiliate of the U. S. Chamber of Commerce. "The employer is responsible for setting guidelines, and the employee is responsible for following them. " (Hussain, p. 50) Both cases -- Faragher vs. City of Boca Raton and Burlington Industries vs.
Ellerth -- involved sexual harassment by supervisors rather than co-workers. In combination, the two cases -- both won by the plaintiffs -- reached these conclusions: If a supervisor takes a "tangible employment action" against a sexually harassed employee -- if, say, a male manager fires or demotes a female subordinate because she rebuffed his advances -- the employer is always liable for damages. It doesn't matter if the owners or top managers of the company had no knowledge of the supervisor's actions. Neither does it matter if they tried to prevent such harassment. "There is no escape, " says David A. Costs, an attorney who specializes in employment law in the Washington, D.
C. , office of Jones, Day, Reads & Pogue. "The employer is dead meat. " (Hussain, p. 77) If a supervisor's harassment of an employee is "severe or pervasive" to the point that it creates a "hostile work environment, " the company can be liable for damages even when the supervisor didn't take any "tangible employment action. " But the court instructed employers on how to avoid liability in hostile-work-environment cases. A company can defend itself successfully if it can prove that it had an effective policy against harassment and that the employee alleging harassment failed to take advantage of it. That's called an "affirmative defense, " as opposed to a defense based on the plaintiff's failing to prove his or her case. An affirmative defense requires companies not only to have a policy against sexual harassment but also to put it in writing, disseminate it, and enforce it.
The court's decisions "create powerful new incentives for employers to formalize programs" that in the past were often informal, says Ronald W. Taylor, an employment lawyer with the Baltimore office of Venable, Baftjer and Howard, LLP. (Holmes, p. 101) The harried small employer, with many other responsibilities, might be tempted to ask why it is so important to draw up a written policy on harassment rather than come down hard on such behavior if it shows up. In the case of the affirmative defense, the answer lies in these key words: "reasonable" and "unreasonable. " The employer must have made reasonable efforts to prevent and correct harassment; the employee must have unreasonably failed to take advantage of opportunities to prevent or correct the harassment. The court's rulings point clearly to communication between the company and its employees as key to creating a strong and effective sexual-harassment policy its up to the company to articulate a clear standard of conduct in the workplace. The company can communicate its standard through orientation for new employees, for example, or through an employee handbook.
But communication cannot be a one-way street. The company must "create an environment where it is likely that an employee will complain to someone, as soon as possible, when inappropriate conduct occurs. (Lewis, p. 89) Because in most situations hostile environments tend to accrete through a succession of inappropriate acts, he says, employers need to encourage harassed employees to complain early. Likewise, an employee who is the target of harassment now has less incentive to keep quiet until the harassment gets bad enough to reach the hostile-environment level-that is, bad enough to justify a lawsuit. Sexual harassment started getting big in 1991 with Anita Hill and the amendment to the Civil Rights Act. That started the guidelines for businesses. Women started to come out and file claims against their employers.
That started opening companys eyes. They needed to protect themselves from these harassment claims. Companies needed to implement policies in order to keep them from being liable. Sexual harassment presents an ongoing and growing risk to businesses operating in the U. S. The time is now for businesses to begin to manage their risk in the area more wisely.
Preventing sexual harassment requires an investment of time and personnel. Companies will benefit from increased worker productivity. From a business perspective, a company only stands to gain if it takes a no-nonsense, hard-line position on sexual harassment (Holmes, p. 114). As far as the victim, they need to keep their eyes and ears open and file a claim. Without these pioneer women, there would be no sexual harassment policies. Women will follow by example.
Sexual harassment is slightly getting better, but more companies have to start getting involved with this issue. Sexual harassment in the workplace is a problem that is pervasive, perfidious and not easily cured. Sexual harassment, by law, consists of deliberate and unwelcome sexual advances, unwanted request for sexual favors, and certain other offensive conduct of a sexual nature. Sexual harassment may be committed by men or women in many different roles, such as that of boss, client, co-worker, military superior, or teacher. However, a large majority of cases involves the harassment of women by their male bosses or fellow employees.
By its nature, it involves the most embarrassing and intimate of details. Sexual harassment usually involves people in positions of power (usually men) doing and saying offensive things, normally to women under their dominion. These factors make coming forward with complaints of sexual harassment a stressful task. Investigations into claims of sexual harassment as well as victims and witnesses must be treated while promoting full disclosure of improper conduct and prompt resolution of valid complaints. According to Collier & Associates law firm in Dallas report that sexual harassment claims increased two hundred percent in 1995 and judgments excluding attorneys fees averaged $ 200, 000. It has been estimated that ninety percent of all sexual harassment claims are bona fide (Holmes, p. 127).
Title VII of the Civil Rights Act of 1964 made sexual discrimination in the workplace illegal; however, sexual harassment was not defined until the 1980 s when the EEOC formulated guidelines to define sexual harassment. According to the EEOC guidelines, behavior that is considered sexual harassment exists when one of the three elements are present: Unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature. Employers have a duty to maintain a working environment free of harassment. Employers are liable for harassment by supervisors regardless of whether the employer knew or should have known of the harassment.
Employers are responsible for acts of harassment by co-workers where the employer or supervisor knew or should have known of the conduct and failed to take immediate and corrective action feasible to the offense. The quid pro quo and hostile work environment are the two distinct forms of sexual harassment recognized by the EEOC and the courts. The most common form of sexual harassment is the quid pro quo. The essence of a quid pro quo claim is that an employer who has the authority to alter employment opportunities propositions a subordinate for sexual favors in order to keep their job or receive a promotion. The conduct must be sexually oriented and unwanted.
The sexual demand must be interpreted as a proposition for sexual favors in return or exchange for tangible job benefits. Quid pro quo is a Latin phrase meaning one thing in return for another. In hostile environment harassment, the offender does not demand a sexual exchange. Instead, a pattern of behavior makes the victims job so unpleasant that the persons work is affected. The harassment may consist of asking sexual favors, making sexual comments, telling sexual jokes, or displaying pornographic pictures. The hostile environment must be sufficiently pervasive to alter the conditions of the victims employment and create an abusive working environment.
The victim need not be subjected to harassment for any extended period of time; one act of severe conduct may be sufficient to prove a hostile work environment. However, that act has to be quite severe in nature. (Lewis, p. 105) The more severe the conduct, the less pervasive the conduct needs to be to create a hostile working environment. One rape would be enough; one dinner invitation would not. Trivial unwelcome sexual conduct, such as asking for a date is not actionable unless it is pervasive. Unwelcome d intentional touching of intimate body areas is sufficiently offensive to alter the conditions at work. Sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not be established as a hostile environment.
The victim has to show an intangible loss such as emotional stress in order to maintain a lawsuit under the hostile work environment. The EEOC has recognized two different types of hostile environments in the work place. The first type is when the conduct is intimidating or offensive. The second one is when the conduct interferes with work performance. The employers liability for claims of sexual harassment depends upon who committed the act and whether any type of remedial action was taken. It is very important that an employer takes immediate action upon a complaint of sexual harassment.
The longer the employer waits the harder it is to resolve the matter in house or in court. There are ways that employers can help eradicate sexual harassment in the work environment. They not only need to find solutions but, have an obligation to take preventive measures. The steps that managers can take are by developing and communicating a sexual harassment policy that should prohibit the two types of harassment defined already. Also, implement a fair...
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