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: If organizations become liable for harassment that wasn't reported, they will be obliged to monitor employee conduct more closely. Is this possible for large or multi-national companies?
Carol Connor Flowe responds:No. It isn't always possible for large or small companies. Chief Judge Posner of the Seventh Circuit Court of Appeals addressed this point quite succinctly in his opinion in the Burlington case:
Romantic encounters, including romantic encounters between supervisors and supervised, are a fact of the workplace. Title VII does not purport to forbid them, and would be quixotic if it did. Many happy marriages have grown out of such encounters. Some of the encounters are abusive from the start, and some start well and turn ugly and engender charges of sexual harassment that sometimes have and sometimes lack merit. The words, the gestures, the other behaviors that differentiate the fully consensual relationship from the coercive relationship will often be invisible to the supervisor's superiors. . . . It is facile to suggest that employers are quite capable of monitoring a supervisor's actions affecting the work environment. Large companies have thousands of supervisory employees. Are they all to be put under video surveillance? Subjected to periodic lie-detector tests? Trailed on business trips by company spies?
Chief Judge Posner's comments raise a point sometimes neglected in this debate — that sexual harassment is, in a very crucial way, unlike any other form of discrimination. It is always unlawful for a supervisor, for example, to hire or fire on the basis of race, sex, religion, age, or national origin. But if a supervisor makes a sexual advance to a co-worker, it is unlawful only if it is unwelcome or offensive. As a consequence, as Chief Judge Posner notes, the company must differentiate between consensual and coercive relationships — a task that will often be virtually impossible. For this reason alone, the company should be liable for unremedied sexual harassment only if the employee reported the harassment or there is otherwise a factual basis for concluding that the company should have known about the harassment.
Ellen Bravo responds:
See #1 for the distinction between management and non-management personnel. Employers have a high level of responsibility for supervisory personnel since they act in the company's behalf. The key to ensuring proper conduct is in three areas: screening people before they're hired, training them well in the company's values and the law, and monitoring their behavior on the job. One way to do this last is employee input in annual performance reviews. Employers should also do regular anonymous surveys, asking staff in a confidential manner to let them know if any problem behavior is going on that they should know about. Finally, if top management communicates in ways that are clear and familiar that they really do want to know about misconduct, no matter how high up the perpetrator may be, and if they demonstrate through action that they walk their talk, those who are targets of harassment or other illegal behavior will more easily come forward..
Employers regularly set objectives and find ways to measure whether those objectives are being met. Ending discrimination should be among the company's core goals. Developing standards that must be met and holding individual managers accountable for those standards is simply a responsible way to run a business.