Power of Attorney - November 2000

Sexual Harrassment in Today's Workplace

by Kathleen J. England, Kristina S. Holman

Huge verdicts! TV shows and movies! Sexual harassment is everywhere! Can an employer lose millions for one off-color joke? It depends. In the 1990s, Anita Hill testified in Congress about alleged degrading treatment by then-Supreme Court Justice nominee Clarence Thomas, and America started talking about sexual harassment. Harassment of any kind hurts your business. It can have serious financial impact; undermine morale and disrupt operations; distract management and rip apart the workplace; and cause you to lose good employees. Prevention is the key. It may prevent the harassment in the first place or allow bad situations to be fixed quickly before they turn into expensive lawsuits.

Federal law and state law prohibit sex discrimination by employers with more than 15 employees. The sexual harassment has to: be "severe" and/or "pervasive;" be directed at someone because of his or her sex or use sexual terms to cause humiliation; be unwelcome; and interfere with someone's ability to do his or her job. The victim need not suffer severe mental distress.

In 1980, the U.S. Equal Employment Opportunity Commission (EEOC) issued its definition of sexual harassment, and courts still use it. Recent U.S. Supreme Court cases focused on the "power" of the harasser to be able to commit the harassment, and have imposed significant obligations on the employer. An employer is absolutely liable for harassment committed by a supervisor or manager if the harassment results in a tangible employment detriment (e.g., firing, demotion, transfer, or failure to promote). If there is no tangible detriment, then the employer may be able to avoid liability by establishing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities. An employer is liable for co-worker or customer harassment if the employer knew or should have known about it and did nothing.

Important points to remember:

• Sexual harassment is an abuse of power.

• Men or women can be victims or harassers.

• Some sexual conduct is welcome. Harassment is unwelcome, and must also be severe and may include language.

• Most victims don't report it immediately - they hope it will stop.

• Men and women have different views about what is offensive.

• If harassment occurs, the employer must recognize it and make it stop.

• Employers are liable for retaliation against a truthful complaining victim.

• Liability may include back pay, emotional distress damages, punitive damages and attorney's fees.

Courts use the perspective of a reasonable person of the victim’s gender. Courts will use a "reasonable woman" if the victim is female, and then decide whether the conduct is offensive. Conduct some men may consider acceptable may actually offend many women. Research studies show that the common "male view," which is not shared by most women, depicts sexual harassment as "harmless amusement." Since women are disproportionately victims of rape and sexual assault, they "may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive," said one court. Courts look to the totality of the circumstances - an employer should use the same analysis when conducting an investigation.

What Employers Should Do

Be proactive. An employer can prevent harassment or minimize liability by confronting it and dealing with it immediately. Ignoring these issues will not make them go away. Following a few simple steps will help accomplish this goal:

1. Have an easy-to-understand, written, zero-tolerance policy against all harassment.

2. Have an easy-to-understand complaint procedure.

3. Management should lead by example.

4. Don’t blame the victim.

5. Train all employees about sexual harassment, especially supervisors.

6. Have trained human resources people deal with complaints and training.

7. Encourage employees to report problems.

8. Investigate all complaints carefully and confidentially (including rumors). Don’t promise secrecy, and be fair.

9. Discipline all offenders appropriately and quickly. This decision should be made by a manager far above the accused.

10. Remedy whatever harm has been done to the victim.

What Employees Should Do

1. Don’t harass anybody.

2. Report all instances of harassment, whether you’re a witness or victim.

3. Learn about the complaint procedures; use them.

4. Cooperate in any company investigation; tell the truth at all times.

5. If you are a victim, file charges with the Nevada Equal Rights Commission or the U.S. EEOC. Do so quickly so you don’t lose the right to file a lawsuit.

Conclusion

Employers should protect themselves and their employees by confronting discrimination and bias problems head-on. The law requires that every American workplace be free of illegal discrimination. Effective anti-discrimination policies and prevention training can go a long way to eliminate discrimination and protect employers from huge losses, whether in human terms by losing good employees or in monetary terms by losing huge lawsuits.

Kathleen J. England, Kristina S. Holman
Kathleen J. England is a partner and Kristina S. Holman is an associate with the Las Vegas law firm of Kummer Kaempfer Bonner & Renshaw, where they both specialize in litigation in the firm’s employment practices group.