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: Have you sensed any backlash recently against sexual harassment policies? Is the public now concerned that these policies have gone too far in regulating office behavior?
Carol Connor Flowe responds:I'm not sure there's been a backlash against sexual harassment policies as such, but there may be some backlash against the whole concept of sexual harassment. In my view, much of this is the result of false allegations made by employees — usually, but not always, women — who claim sexual harassment after receiving a negative job evaluation or being discharged. Although false claims are made in every area of the law, sexual harassment claims seem to carry an especially onerous connotation for the person accused. And because sexual harassment almost always occurs in private, false claims of sexual harassment may be more easily made. These false claims, however, can have pernicious results. There have been numerous anecdotal reports, for example, of male executives who avoid business travel with female colleagues, for fear that they might be exposed to a false claim of sexual harassment. Some male managers, whether consciously or subconsciously, may avoid hiring women after they or their companies have been falsely accused of sexual harassment.
More innocently, both men and women have become increasingly nervous about normal workplace interactions. Virtually all of us have known, at some point in our working lives, an avuncular or motherly supervisor who, as a matter of personal style, would never mete out either criticism or kudos without a hug or comforting squeeze of the arm. Because there was nothing at all sexual or amorous about these gestures, their employees readily tolerated, if not welcomed them. Today, however, few supervisors would risk these kinds of kindly gestures, for fear that an employee might contend that he or she finds them unwelcome or offensive and make a claim of sexual harassment.
Ellen Bravo responds:
A significant portion of the public is concerned -- not because sexual harassment policies have actually gone too far, but because certain commentators and policymakers have managed to spread that message. Think how much coverage there was of the 6-year-old boy suspended for kissing a classmate on the cheek -- clearly an over-reaction on the part of some school official and the exception, not the rule. Had the same coverage been given to the horrific level of sexual harassment in the schools and some of the innovative programs designed to deal with it, we'd all be a lot better off.
Similarly, the media gave a lot of attention to the so-called "Seinfeld case." Most people heard that a man won $26 million after being fired for sexual harassment when he told a joke about a Seinfeld episode to a female co-worker who filed a complaint. In fact, there was no joke; the woman wasn't a co-worker; she never filed a complaint; and the man wasn't fired for sexual harassment. The main portion of the penalty related to the Seinfeld episode -- $1.5 million levied against the woman involved -- has already been overturned. The Seinfeld hook, alas, made snappier copy than the facts -- even if truth was sacrificed in the process.
People are confused and concerned about what constitutes sexual harassment. Good training can clear up most of their questions and establish a basis for ongoing communication. But we need to be clear on the starting-point. While some companies have done an excellent job combating sexual harassment, many have not. Sexual harassment takes a huge toll -- on business costs, on productivity and on individual lives. It's bad business and needs serious attention.
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