Employers must remain vigilant
According to a recent poll cited in the Wall Street Journal, 46% of women believe they have experienced sex discrimination in the workplace. And the number of sexual harassment claims filed with the Equal Employment Opportunity Commission (EEOC) in 2011 totaled 7,521.
What does this show? Employers should not be fooled into dismissing or ignoring the potential for sexual harassment claims. The problem simply is not going away, at least not anytime soon.
Be aware that there are two basic types of sexual harassment claims. “Quid pro quo harassment” occurs when employment decisions are determined by whether or not a person submits to sexual advances or demands. “Environmental harassment” represents unwelcome sexual conduct that creates an intimidating or offensive work environment.
According to the EEOC, a single incident or isolated incidents of offensive behavior generally do not create a hostile environment unless the conduct is severe. Although both types of harassment have been recognized as being actionable by the courts, environmental harassment is generally more difficult to prove.
An allegation of sexual harassment is strengthened if the complaint is contemporaneous. Note: The EEOC considers a complaint to be contemporaneous even if the worker does not notify the employer about the unwelcome conduct until the worker quits his or her job.
Once the company receives notice of a complaint, it should investigate the situation, even if the employee did not communicate displeasure at the time of the alleged harassment.
Is the employer automatically liable for a supervisor’s actions? No. Each case is decided on its own merits. Nevertheless, the EEOC guidelines provide that an employer will be held responsible for the unreasonable acts of its employees, regardless of whether the acts were authorized or forbidden and whether the employer knew, or should have known, of the occurrence.
How does an employer determine whether the behavior is reasonable or not? This can be difficult. For instance, there may not be any witnesses to the alleged event (or series of events) or the witnesses could be biased. In some cases, the complaining worker may be accused of encouraging the conduct. In others, the employee may have “played along” out of fear or intimidation.
To avoid potential problems, employers should maintain an environment free of sexual harassment. In the event a claim occurs, follow these steps:
- Obtain a specific description of the event from both parties.
- Ask for the names of any witnesses.
- Collect all the other relevant facts (e.g., how long the conduct has been going on and whether the alleged victim has shown disapproval).
- Keep records of the meetings.
- Find out what course of action the alleged victim is seeking.
- Check to make sure that unwanted conduct has stopped.
- When it is appropriate, respond with action.
Finally, try to educate all employees about sexual harassment issues. If your company has not yet established a grievance procedure for complaints, it should do so promptly. Spell out the policy in the company manual.
In this case, it is far better to be safe than sorry. Do not think that sexual harassment cannot occur at your firm. Take the necessary precautions to protect your interests.