A few months ago, we posted an
excellent piece detailing some of the important things an employer should
try to do to avoid a sexual harassment claim, including how to appropriately
respond to one. Apparently, that message hasn't quite seeped in to
certain employers out there - at least if the latest wave of sexual harassment
cases in the news is any indication.
The first of those came a few weeks ago when the Fourth
Circuit Court of Appeals - which covers West Virginia - reversed a sexual
harassment ruling which had been issued in the City of Baltimore's favor.
In that case, Okoli v. City of Baltimore, the plaintiff's boss forcibly
kissed her, propositioned her to have sex with him in a jacuzzi, fondled her,
asked her sexually explicit questions about whether she was wearing underwear
and would come to work without it, and described a threesome he experienced.
All of this happened over a four month period and,
perhaps not surprisingly, the plaintiff objected to or reacted with disdain
each time it occurred. Later, after the plaintiff rejected his advances a
final time and then filed a sexual harassment complaint, he fired her.
Under these circumstances, it's no surprise the Fourth Circuit Court ruled as
it did. A situation with that type of verbal and physical conduct,
objected to by the plaintiff, and occurring over that short a period of time,
is likely to work against the employer almost every time.
The Okoli opinion, however, was nothing compared
to the Complaint that was lodged in Utah around the same time. In Anderson
v. Lone Peak Controls, the Complaint - a copy of which can be found here - alleged that the plaintiff's direct supervisor
repeatedly asked her if he could see her breasts. He also hit her on the
buttocks more than once and gave her unsolicited hugs. Perhaps not
surprisingly, he additionally viewed pornography in the office and sent
pornographic jokes and e-mails to the plaintiff. Further, he told the
plaintiff he was installing a shower in the office for them, told her what he
liked to do sexually and asked for her preferences, and described to her in
great deal how to make 'sex cake'.
It gets worse, folks. Ms. Anderson's supervisor
also asked her for oral sex on several occasions and, if that wasn't enough,
not only did he issue a work schedule which included 'mini-skirt Monday (no
panties allowed)', "wet t-shirt Wednesday", and "no bra Thursday", he also
actually asked the plaintiff to sign a document permitting him to sexually
harass her in any way he wanted!
Any guess as to how that case is likely to turn out
(settle)? Yes, this stuff still goes on in workplaces. Somehow.
Obviously, making sure your supervisors aren't engaging
in the idiocy involved in the two cases described above is a good start for
employers to avoid these types of claims. Beyond that, having a good
sexual harassment policy should be the next goal, as we suggested a few months
ago. But what does a good sexual harassment policy include?
First of all, any such policy shouldn't just prohibit sexual
harassment; it should prohibit harassment of any kind. In addition, the
policy needs to state in very broad terms what type of behavior is prohibited
and unambiguously state that such conduct won't be tolerated. Further, it
needs to set forth a complaint and investigation procedure and that aspect of
the policy should account for the situation where an employee's direct
supervisor or someone in HR - to whom the employee might typically report such
conduct - is the harasser. Moreover, when complaints are lodged, they
must be dealt with promptly and in a way which not only serves to put a stop to
any harassing behavior, but also protects against retaliation.
Another critical thing an employer needs to do in order
to try and avoid situations like those in the Anderson and Okoli
cases is train their employees on their sexual harassment policy. This is
something we talked about a few months ago as well. Get your employees
together and explain to them the types of conduct which are prohibited by
law. Teach them how to properly respond to complaints, or who to go to in
order for a prompt response to be undertaken. Then train them
again. Documenting all of your training is a good thing to do, too, by
Now, sometimes the train will run away from you and no
matter what you do, rogue employees are going to engage in obnoxious and
offensive behavior. And other times, employees who advance these claims
will have already shot themselves in the foot. For example, an employee
lost what may have been a credible sexual harassment case in Pennsylvania last
month after she was determined by a federal court to have used explicit
language and e-mails with sexual jokes and innuendo, so that an environment
where she was subject to comments about her "tan and smooth" legs, about her
"beat me, bite me" shoes, about her being called "darling" and "hon", and about
being told she was "foolish not to use her assets" was not considered hostile
and unwelcome to her.
Those detours aside, sexual harassment remains a very
real risk for employers and addressing it before you end up in court takes
effort. Still, employers dealing with sexual harassment - like with many
other HR headaches - are better served putting time in on the front end than
they are paying their lawyer on the back end.
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