Rulings help clarify sexual harassment

Egregious sexual harassment usually brings titters from those who hear about it. It's easy to recognize and condemn someone for obviously offensive sexual remarks, or blatant unwelcomed sexual behavior. But most sexual harassment isn't so blatant, and figuring out whether it has taken place and an employer should be liable for it isn't so easy.

For example, is it sexual harassment when employees are sitting around talking about the Starr Report and making jokes about cigars?

The answer is, "It depends." But two recent rulings by the U.S. Supreme Court have helped clarify the responsibilities of employers in sexual harassment cases. They also make it more imperative than ever for companies to understand the nuances of sexual harassment in the workplace, said Kathy Cooper Franklin, an attorney with Littler Mendelson in Seattle. In a case involving Burlington Industries, for example, an employee quit her job after enduring numerous offensive remarks and gestures from her supervisor. Although she never complained about the harassment, and she was never fired or demoted, the Court still held that she had a right to sue her employer. An employer can be held liable for a supervisor's harassing actions even if the employee who was harassed didn't suffer any actual negative work consequences, said Franklin. "That's a huge change in the law," she said. In the Burlington Industries case, the court held that even though the employee wasn't fired or demoted, the offensive remarks and gestures could be construed as threats to deny the employee tangible job benefits, such as a promotion. In a second case involving the city of Boca Raton, Fla., the Court ruled that an employer can be liable for the actions of one of its supervisors, even if it never knew about the supervisor's misconduct. In the Boca Raton case, a lifeguard sued the city for failing to protect her from lewd remarks and offensive touching by her supervisors. The lifeguard never complained, but finally quit. An appeals court found the city was not liable, but the Supreme Court reversed that decision, Franklin said. Although the two cases actually expand liability for employers, they also make it more clear how companies can protect themselves and their employees against such claims, she said. First, a company has to have a solid harassment policy, and the policy has to be distributed, she said. They also have to have a clear, anti-retaliation policy so employees won't be afraid to come forward with allegations. Many companies have policies, but they're stuck in a supervisor's manual somewhere and employees never get to see them, she said. Next, companies need to invest in some kind of training to help employers and supervisors understand harassment. "Training is the only way to get this problem to stop," she said. And if a company gets sued, it's "also been a company's ticket to get out." Finally, companies need to respond quickly and effectively to investigate complaints, she said. All these actions will help reduce the incidence of harassment at work. They also put a company in much better shape if it has to defend itself in a sexual harassment case, she said. Sexual harassment suits can be very expensive, she said. M&M candies cost one company $3.7 million, when an employee sued because her supervisor made a game of dropping M&M's into her breast pocket. Ultimately, such suits come down to the judgment of ordinary people, she said. "The fact of the matter is we don't get to the U.S. Supreme Court with most cases," she said. "We get to juries." Juries have decided that even single remarks can constitute severe harassment, she said. It depends on the context. One reason sexual harassment is difficult to eliminate is that it encompasses such a wide range of behavior. At one end of the spectrum are socially acceptable actions, such as hugging or flirting. When repeated and unwelcomed, they can constitute harassment. At the other end of the spectrum are severe behaviors, such as rape or vulgar remarks, that only have to happen once to constitute harassment.

Copyright 1998
Provided by ProQuest Information and Learning Company. All rights Reserved.