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It can happen at any time. The wrong word, the wrong insinuation, the most “harmless” gesture or off-color joke. Given an infinite amount of throwaway conversations and enough time, even the most “sensitive” workplace can become guilty of sexual harassment through inaction, forgetfulness, or lowered radar. You may not think you have a problem until you find yourself defending your actions and your ignorance in court. But by then it might be too late.
Sexual harassment in the workplace continues to be a legal problem, despite its quiet disappearance from the cultural landscape. Businesses that pride themselves on a relaxed and comfortable environment – such as pizza places – can be especially at risk. An atmosphere where employees are encouraged to let their guard down and where managers are expected to be jovial and hip may provide extremely fertile ground for sexual impropriety. This kind of environment may not take the time to outline clear rules, properly educate managers, or establish clear channels for redressing grievances -- and it may suffer legally because of it. The problem of sexual harassment hasn’t disappeared, and according to the numbers, people still haven’t gotten the message about what constitutes appropriate workplace behavior. Since 2000, the EEOC has handled over 25,000 sex discrimination charges a year! During the 1990’s, U.S. employers paid collectively nearly $1 billion to resolve harassment claims, much of it coming from their insurance providers. Financial settlements are also growing due to Civil Rights Act amendments allowing victims to recover for pain, suffering, and punitive damages. A partial recap should ring alarm bells:
All organizations should involve their human resources departments in developing and adhering to policies and processes of managing risk in sexual harassment complaints. If a business is too small to have a human resources department, then it should make sure that at least some percentage of time and money is being allocated to educating workers and managers, and someone in an administrative position should be responsible for the anti-harassment program
The common thread that runs through the high dollar payouts cited above is the company’s failure to either communicate or enforce a policy regarding sexual harassment. In each case, the company had a valid sexual harassment policy. In none of the four examples did the company follow the policy when confronted with complaints. Furthermore, in several of the cases, managers at the mid-level tried to stifle or hide the complaints. In a recent New Hampshire case, Madeja v. MBP Corporation, the state Supreme Court upheld a $600,000 jury award in a co-worker sexual harassment and retaliation case. The case offers important guidance from a risk management perspective about how to better defend against sexual harassment claims. For reasons of “low productivity,” the victim was fired eight days after making a sexual harassment complaint against her co-worker, despite an acceptable performance review less than three weeks earlier. To make matters worse, the supervisor who terminated her was tainted by his own sexual harassment of another subordinate employee which occurred during his investigation into the victim’s complaints. He was later fired. In this situation, the employer undermined its own defenses by failing to fully investigate the initial complaint and did not take appropriate action against the harasser who even admitted responsibility for some of his conduct. Nor did the company’s supervisors notify human resources as required under the company’s own sexual harassment policy. In fact, management left human resources (perhaps intentionally) in the dark about the timing of the termination decision and the complaint of sexual harassment, probably to keep it from discovering that the termination was retaliatory. The employer argued it made good faith efforts to comply with Title VII, and that it had a sexual harassment policy in place and conducted regular training. However, the court found that “the mere existence of an anti-discrimination policy [or training] does not automatically satisfy the good-faith requirement. A defendant must also show its sincere commitment to enforcing its policy.” A case against a nationwide breakfast chain resulted in a similar outcome. The judge specifically stated that because the severe and pervasive sexual harassment of the plaintiff was either done or condoned by the top officers and executives of the chain (including the President, six Vice-Presidents and Executive Vice-Presidents, and several Area and Regional Managers and Assistant Vice-Presidents, with a human resources manager among them), the case justified an award of more than 8 million dollars. In order to avoid large awards, it is paramount that a company communicate its policy to its employees so that they can know how to take advantage of it. The procedures for dealing with a complaint should be clear, anonymous, and guarantee fast results. Managers implicated in claims should not also be responsible for investigating them. Furthermore, the policy and the appropriate response to complaints must be thoroughly and rigorously communicated to all managers OFTEN. An effective sexual harassment policy shouldn’t just be talked about at hiring and promotions. It should be something that never has a chance to be forgotten. Pizza places have ovens, and ovens mean fire drills. Sexual harassment complaints should be practiced as often as fire drills. After all, a sexual harassment suit can be much more expensive and damaging than a building burning down. A fire elicits community sympathy, whereas a damaging sexual harassment suit can mean the end of goodwill -- and a profitable company -- forever. – PMQ – |