When is a company liable for a sexual harassment claim?
April 30, 1998
in this forum:
Why should a company be liable for a harassment claim that was not reported? How can a business craft a harassment policy when the law remains murky? How do you define policies to meet standards a multi-cultural group will accept? Can large companies effectively monitor their workers? Is there a backlash against sexual harassment policies? Viewer comments. The Online NewsHour asks: The legal definition of sexual harassment still seems murky. How can businesses craft harassment policies if the courts haven't clearly defined what it is?
Carol Connor Flowe responds:I don't agree that the legal definition of sexual harassment is murky. It is quite clear, for example, that sexual harassment has occurred if a supervisor conditions job benefits on the grant of sexual favors ("you have to sleep with me if you want that promotion") or if an employee suffers adverse job consequences because she rebuffs a sexual advance. It is equally clear that sexual harassment has occurred where an employee, because of his or her sex, is subjected to a barrage of sexually oriented jokes and comments, improper touching, or other threatening, intimidating or hostile acts so severe and pervasive to alter the terms of his or her employment and create an abusive working environment. Employers have little difficulty crafting policies that define and unequivocally prohibit sexual harassment.
Where the law does gets murky, however, is when the courts are required to apply these legal definitions to the facts of a particular case in determining whether the company should be liable. In Burlington Industries v. Ellerth, for example, the case that was argued last week in the Supreme Court, Kimberly Ellerth alleges that a supervisor told her in a telephone conversation that he wouldn't discuss her request for a particular assignment unless she told him what she was wearing. No one would seriously dispute that this comment, if made, was entirely inappropriate. The question, though, is whether Burlington should be held legally liable for the supervisor's improper comment. Was this quid pro quo harassment, that is, was the supervisor conditioning a job benefit on the grant of a sexual favor? If so, most courts would hold Burlington automatically liable, without regard to the steps Burlington had taken to eliminate sexual harassment from its workplace. If not, i.e., if the comment were not construed as quid pro quo harassment, but rather was considered part of a "hostile work environment" harassment claim, most courts would not hold Burlington liable, because the company did not know about the alleged harassment, and there was no basis upon which a court could have concluded that the company "should have known" about the supervisor's misconduct.
We are all hoping that the Supreme Court will eliminate at least some of the murkiness in this area when it issues its decision in the Burlington case later this year.
Ellen Bravo responds:
The definition of sexual harassment is not nearly as murky as some have made it out to be. Here's the simple definition we use at 9to5: sexual harassment is behavior of a sexual nature at work that is unwanted, offensive, usually repeated, and makes it harder to have or do your job. It's very different from jokes, flirting or romantic involvement that is genuinely mutual and fun. Unlike consensual behavior or compliments, which make the person feel good, harassment makes the person feel bad -- demeaned, humiliated, angry, scared, or uncomfortable.
Employers should craft policies based on the criteria of dignity and respect. A supervisor might scream indiscriminately at all employees -- that could be legal, since the person doesn't treat any group differently, but that doesn't make it right.
The good news is we know how to prevent sexual harassment or stop it quickly should it occur. What's needed is the following:
a strong commitment from top management; education and training that's down-to-earth and interactive so employees can get clear on what's appropriate and what's not, including how to communicate when someone has been offensive; if that communication doesn't work, a choice of trained personnel to report the problem to; procedures that take every complaint seriously but guarantee due process to the accused; a prompt and effective investigation where appropriate by specially trained staff; if the complaint is found to have merit, progressive discipline appropriate to the offense -- not lighter because the person is high-ranking, not stronger than called for; follow-up with the person harassed, the perpetrator, the manager, and the work group if necessary; regular assessment, including evaluation of managers and an annual anonymous survey.