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August 2007
10 Questions From Our Clients About Sexual Harassment
QUESTION 1: One of our Human Resources consultants suggested that Title VII precludes any bawdy language in the workplace or any expression of anger or frustration toward another employee. HasTitle VII become a statute that governs all aspects of employee interpersonal interaction?
ANSWER: No. As the U.S. Supreme Court made clear in its 1998 decision Oncale v. Sundowner, Title VII is not a “general civility code.” The Court emphasized that Title VII is not designed to ensure a completely pristine working environment and is not intended to regulate all aspects of employee interaction. On the other hand, give some thought to whether you would want the “bawdy” language you referenced to be part of the back-drop presented to a jury when a sexual harassment claim based on more substantial conduct is alleged. Consider whether you would like to defend a supervisory employee who has engaged in sexual harassment and also carries the baggage of routinely venting his anger or frustration at his subordinates.
QUESTION 2:
It seems to me that behaviors that might be offensive in some circumstances might not constitute sexual harassment in other circumstances. Am I off base? Does “context” matter?
ANSWER: You are right on target – context does matter. Once again, in Oncale, the Supreme Court madethis point explicit. The example used by the Justices was a comparison between a football coach or player smacking another player on the rear as he is sent into the game, versus the same type of conduct directed by an executive at his assistant. The context makes a difference. Keep in mind that behavior will be judged by both a subjective standard (was the employee offended by the conduct) and an objective standard (would a similarly situated employee also be offended by the conduct). Both tests must be met before concluding the behaviors were harassing.
QUESTION 3:
Someone told me that, in the work environment, even repeating jokes heard on prime-time television sitcoms can lead to liability for sexual harassment? Say it ain’t so.
ANSWER: In a case out of Wisconsin this is precisely what happened, at least initially. A worker shared a joke he had heard on Seinfeld which, he conceded, was crude and referenced certain parts of a woman’s anatomy. This led to a multi-million dollar jury award which was highly publicized by the media as an example of the defects of our judicial system. Earlier this year, however, the Wisconsin Supreme Court reversed the jury award and rendered a decision for the employer. (This decision did not receive much, if any, media coverage.) Nevertheless, the bottom line is that it is not always appropriate to repeat in the work environment what is commonly heard on prime time television. The sensitivities of the audience should always be considered and a certain amount of common sense is a useful behavioral guide.
QUESTION 4:
There are a lot of jokes flying around on our email system. Could someone claim sexual harassment on the basis of these email communications?
ANSWER: Simply put, yes. Whether the emails alone would be sufficient to support a sexual harassment claim is difficult to predict. But what company wants to have to defend this type of lawsuit? Computers at work should be used for the company’s business, not for accessing pornographic Web sites or for circulating crude jokes. Keep in mind that more and more plaintiffs’ lawyers are requesting electronic communications as part of their discovery requests. Remember too that even though an email may have been “deleted,” it still may be retrievable from the computer’s hard drive or network server. As with any other type of communication, employees should consider whether they would be comfortable if their email messages were widely publicized or made part of a lawsuit.
QUESTION 5:
Can sexual harassment lawsuits be brought as a class action?
ANSWER: Yes. Although a class action sexual harassment lawsuit remains unusual, this type of litigation can be pursued by plaintiffs. One of the first class action sexual harassment lawsuits originated in Minnesota, at the Eveleth Mines, and had a long history in the courts before the plaintiffs ultimately prevailed. Another visible example of this type of litigation is the Equal Employment Opportunity Commission’s (EEOC’s) lawsuit against Mitsubishi in Ohio. While there may be difficult burdens for plaintiffs to overcome with regard to the Rule 23 class action requirements of numerosity, typicality and common questions of law and fact, if a sexual harassment class is certified, the potential exposure for defendants may be quite substantial.
QUESTION 6:
I work in the HR Group at our company. If an employee reports harassment to me but tells me not to do anything because she will handle it, shouldn’t I respect her wishes?
ANSWER: No, you should not. Once the employee has put you on notice of the harassment, you need to respond appropriately. Simply allowing the female employee to handle the situation herself, even if that is her request, is too risky. What if she is unable to address the situation successfully and further incidents occur? Would you be comfortable explaining your inaction to your boss or, worse yet, a jury, if she sued the company six months later? Another scenario that is even more problematic would be if another, different employee also experienced a problem with the same harasser. How would you respond to that plaintiff ’s attorney at your deposition when you were asked when you first learned that Mr. X had engaged in harassing behaviors at your worksite? How would you explain your inaction in these circumstances, especially if the second employee had been assaulted or subjected to other extreme conduct? The only prudent course is to explain to the first complaining employee that now that the company has been informed of the problem, it needs to conduct an appropriate investigation.
QUESTION 7:
Under what circumstances is it “reasonable” for an employee not to take advantage of the harassment reporting mechanisms offered by the company?
ANSWER: This is a tough question. It implicates the 1998 Faragher and Ellerth decisions, in which the Supreme Court established an affirmative defense for employers when an employee “unreasonably” fails to take advantage of the reporting mechanisms provided by the company. As the Supreme Court implied by its decisions, in some circumstances it is not “unreasonable” for an employee to fail to report the harassment. Although the judicial opinions on this topic do not provide clear guidance, a few principles are becoming evident. First, if the person engaged in the harassing conduct is a very senior executive (such as the CEO, CFO, or Vice President of Human Resources), courts may be receptive to the notion that it would have been futile for the affected employee to “report” the harasser. Second, if the company has not made a genuine effort to adopt and enforce its sexual harassment policies, the courts may conclude that the company only is paying lip-service to the issue and has not truly adopted a mechanism that employees are compelled to use. Third, if the company has not taken effective action in response to other complaints, and that fact is known throughout the company, the courts may conclude that the employee was not unreasonable in failing to report. As you can see, these situations are driven by the individualized facts each case presents. The bottom line for companies is to adopt an effective policy, publicize it to employees, and take appropriate action when a complaint is received. This is the best way to ensure that the affirmative defense will be available to your firm.
QUESTION 8:
Is the “affirmative defense” available to employers in every case?ANSWER: No. First, the affirmative defense created by the Supreme Court only is available where the affected employee has not suffered tangible economic harm. Thus, if the employee has been discharged, demoted, suspended, or experienced some other economic change in the terms and conditions of her employment, the affirmative defense disappears from the calculus. Second, keep in mind that the Faragher/Ellerth cases are federal cases. Although many state courts look to federal precedent when interpreting the parallel state law antidiscrimination statutes, this is not uniformly true. Moreover, some states have statutes or regulations that impose strict liability standards for sexual harassment committed by anagement-level employees. Even in the absence of “economic harm,” an employer in one of these states may not be able to convince a court to adopt the affirmative defense created by the Supreme Court.
QUESTION 9:
Some women put themselves in harms way and when the situation goes awry, they sue. Is that legitimate? Do employers have a defense to these types of claims?ANSWER: This presents a very difficult question, about which there likely will be considerable litigation in years to come. On one hand, it is unfair to blame the victim of harassment. On the other, there is a reasonable expectation that employees will use common sense and take appropriate steps to avoid putting themselves at risk. One way to take advantage of the Faragher/Ellerth affirmative defense is to show that the person claiming harassment failed “to avoid harm otherwise.” One federal circuit court focused on this language in dismissing a sexual harassment lawsuit because the plaintiff, who allegedly had been assaulted by her boss in his hotel room following a business meeting, put herself in the same situation just a few months later. Like the earlier incident (which she had not reported), the plaintiff stayed behind after a business meeting had concluded. She then went out with her supervisor, dancing and drinking until the early morning hours. At that point, she returned to his hotel room with him, where he again allegedly assaulted her. In dismissing her case, the district and appellate courts held that she had failed to “avoid harm otherwise.”
QUESTION 10: Our company has been hiring an increasing number of employees from foreign countries. Some of these individuals come from locations where there is not an especially enlightened attitude toward women in the workplace. Sometimes these negative attitudes toward women spill over in our work setting. Does this present a problem from a sexual harassment perspective?
ANSWER: Yes. Employers will not be successful when defending harassment claims by arguing that employees who engaged in offensive behaviors come from countries where such conduct would be condoned. Although you may be able to explain to the affected female employees that certain conduct was not intended to be offensive or that there are cross-cultural explanations for the behavior, the simple (and legally correct) retort from the affected employees could be that “intent” does not matter in sexual harassment law. Title VII proscribes conduct which has the “purpose” or “effect” of creating a hostile or offensive working environment. Thus, it is important to educate adequately all of your employees regarding acceptable standards of conduct, including employees who may come from a different cultural background.
Sexual Harassment – UPDATE
The US Supreme Court has made several recent rulings regarding sexual harassment in the workplace. Here is a brief summary of those decisions:
In a ruling in February 1998, the Court determined that same-sex harassment is illegal under federal law. That is, a woman who harasses another woman or a man who harasses another man is in violation of the law assuming that the other requirements of unlawful harassment are present.
In June of 1998, the Court clarified that an employer may be liable for its supervisors’ sexual harassment, even if it didn’t know about the misconduct. In some cases, an employer can defend itself by saying it took reasonable steps to prevent harassment on the job. These steps would include: having a clear policy against harassment, ensuring that all employees are aware of the policy, enforcing the policy, and providing reasonable means by which an employee can inform the organization of an incident of harassment.
The Court also determined that in some cases where an employer has taken reasonable care to prevent and promptly correct any sexually harassing behavior and where an employee fails to take advantage of the employer’s well-publicized complaint procedures, the employer can present these facts as a defense and may avoid liability.
In cases where a supervisor causes an employee to suffer a tangible adverse impact on his or her employment as a result of an incident of sexual harassment or as retaliation for reporting such an incident, the employer may still be found liable even if it has taken affirmative measures to end workplace harassment.