Monday, July 05, 1999

Fine line on harassment

Court cases fault companies for poor communication

The Cincinnati Enquirer

        While U.S. courts haven't been able to define sexual harassment — preferring instead to keep it a you-know-it-when-you-see-it issue — they have gotten specific on who gets the blame when harassment has clearly taken place. And often, it can be the company management.

        Two U.S. Supreme Court decisions are driving companies into their attorneys' offices and meeting rooms to make sure their sexual harassment policies are adequate and that employees are aware of them, said David Peck, an associate in the labor and employment law department at Cincinnati's Taft Stettinius & Hollister law firm.

        Without that communication, employers can be held liable for a worker's harassing actions, according to the late 1998 Supreme Court rulings. In both cases, individuals who claimed to be victims of sexual harassment had not taken advantage of employee programs to get it corrected. But they said they didn't know better.

        And that's how the finger can still point to the employer.

Knowledge of policy
        In the first and most important of the cases — Faragher vs. City of Boca Raton (Fla.) — a lifeguard's supervisor harassed her. She quit and sued the city. The city said she never complained up the chain of command, as outlined in the city's policy. But the former employee said she'd never seen the policy.

        The high court found in favor of the former employee, in effect saying that a sexual harassment policy is useless if employees don't know about it, Mr. Peck said.

        “Not only does there have to be a policy, it's got to be well-communicated,” he said.

        Besides, the city's policy in this case said a complaint needs to be filed with the immediate supervisor. The problem was, the supervisor here also was the perpetrator.

        The court said a policy has to provide an alternative re porting method, to avoid a victim having to file a complaint with the accused, Mr. Peck said. He said even having the phrase, “or any other member of management” would protect the employer.

        “You want a number of people they can go to so they can get out of the chain of harassment and to any other supervisor they feel comfortable talking with,” Mr. Peck said.

        In reviewing clients' policies and ensuring their adequacy, Mr. Peck still gets the question: What constitutes sexual harassment? Flirting? Come-ons? Innuendo? Jokes?

        One form is clear: quid pro quo, the stereotypical “do this or else” proposition. But the other is a bit more ambiguous. What one person thinks is funny, albeit off-color, another may think creates a “hostile work environment.”

        Mr. Peck said it's not necessarily one dirty joke, or even two dirty jokes.

        “If there's any catch word at all, it generally has to be pervasive pattern,” Mr. Peck said. “One joke probably wouldn't do it.”

Steps employers should take
        Two late 1998 U.S. Supreme Court rulings clarified how employers can be held liable for sexual harassment committed by their supervisors. According to David Peck, an associate in the labor and employment law department at Cincinnati's Taft Stettinius & Hollister law firm, there are four main steps employers should take.

        • Make sure you have a policy banning sexual harassment.

        • Make sure that policy is adequate. It should say sexual harassment will not be tolerated; it should have a reporting mechanism that is not limited to going through the immediate supervisor; it should say the company will investigate and take action quickly; and it should have an assurance that the employer will not retaliate against people making complaints.

        • Make sure the policy is distributed as widely as possible. Have a meeting, if necessary. Discuss the policy, post the policy and have employees sign it, verifying that they've read and understood it. “If someone doesn't read something they've signed, then it's their tough luck,” he said.

        • Make sure you, the employer, enforce the policy. Follow your own investigation procedures if a complaint is filed. “Report it. Take it seriously. Get the job done.”


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