The Many Faces of Sexual Harassment

Sept. 28, 2010

Stay Out of Trouble by Writing It Down

One of the best defenses against sexual-harassment claims is to have an existing company policy against such acts and to make certain all employees know about the policy.

Stay Out of Trouble by Writing It Down

One of the best defenses against sexual-harassment claims is to have an existing company policy against such acts and to make certain all employees know about the policy.

Although there are numerous methods that can be used to share such information with employees (a classroom-type meeting with sign-in sheets for attendees, for example) another way to do it is to include the policy and procedures in an employee handbook. This section of the handbook should include the following. The recommendations are meant to be only guidelines and are not all-inclusive.

Equal Employment Opportunity Policy that contains statements such as, "XYZ Company is committed to providing equal employment opportunity for all persons regardless of color, religion, sex, marital status, national origin, citizenship status, disability or age."

Policy Against Harassment: For instance, "harassment is a violation of Title VII of the 1964 Civil Rights Act. Strict compliance to this policy applies to all employees of XYZ. Company."

Recognizing Harassment: "Harassment may be declared as unsolicited, offensive behavior that inappropriately refers to activities of a person. A superior need not be the exerting party in order for it to be considered as harassment."

Management Responsibilities: "The management of XYZ Company strongly disapproves of harassment and will not tolerate it in any form."

Procedure for Filing a Complaint: This section should provide step-by-step instructions on who to contact, such as the Human Resource department for XYZ Company, if there is harassment. It's also a good idea to include a toll-free hotline telephone number.

Investigation: For example, "a representative of XYZ Company, or an appropriate person, will investigate each charge of harassment by gathering information from all concerned."

Confidentiality: For instance, "any complaint about behavior, which may be considered harassment, will be kept confidential to the best of XYZ's ability."

Human-resource experts advise small companies that may not have an HR department to have an attorney draft a policy statement against harassment. Also, many associations are a good resource for information, video and other materials that might be helpful.

Source: Cajun Constructors

Take Prompt Action, Properly

Complaints of sexual harassment must not be casually dismissed, and prompt action must be taken. No other area of employment law requires employers to be as proactive as this does. The following are guidelines for investigating allegations:

Interview the accused individual first. That person should be given the opportunity to respond to all charges.

Conduct interviews in private, including those of witnesses. Have a third party, such as a human-resource person, present as a witness.

Document the investigation. Written statements should be obtained from all, including witnesses.

Apply the policy consistently. The same person should have overall responsibility for handling all claims.

Upon completion of the investigation, take appropriate action. Because the alleged conduct often occurs in private, with no witnesses, even the most thorough investigation may be inconclusive. Several outcomes are possible.

False accusation. If the allegation is proven false, serious discipline in warranted. Discipline is appropriate only when it is clear the complaint was made maliciously.

Inconclusive investigation. The alleged harasser should be reminded of policy and warned against retaliating against the complaintant or witnesses. The victim should be encouraged to report harassment if it recurs. If necessary, the two employees should be separated from each other.

Harassment proven. The discipline should be in proportion to the offense. Disciplinary measures should include an oral or written reprimand, probation, suspension, transfer to another location, or termination. The harasser should be educated on what constitutes sexual harassment and warned that a recurrence or retaliation will result in immediate termination.

Source: AEMP

In Latin, it's quid pro quo. In English, as it pertains to sexual harassment, quid pro quo translates into an unwilling employee forced to exchange sexual favors for such amenities as job promotion, pay increases, a larger office with a window, better working hours, or any other work benefit.

A second type of sexual harassment in the work place is a hostile work environment that is rooted in conduct of a sexual nature that is so severe or pervasive that, in the judgment of "a reasonable person," it creates the hostile or abusive working environment. Another factor that defines a hostile work environment is much more slippery — the victim's subjective perception that the environment is abusive.

Sexual harassment, in the eyes of Uncle Sam, has been interpreted under Title VII of the Civil Rights Act of 1964 as a form of sex discrimination. Said another way, any fleet professional "asleep at the wheel," or any employer for that matter, can be sued for quid pro quo, hostile work environment, or sex discrimination. Regardless of the legal terminology that hauls you into court, learning the hard way comes complete with high price tags and time-consuming involvement in sensitive issues.

Sexual harassment can take on almost any form that you can imagine. Sam Houston, CEM, division chief for the City of Jacksonville's fleet management division in Florida, says, "it can be a phrase someone makes unintentionally, yet comes across as having sexual connotations, a joke that someone tells, a picture displayed in the shop, or video or e-mails sent to various people. When it comes to what is considered sexual harassment, it's just wide open."

Although recognizing that the definition of sexual harassment and its interpretation may range all over the lot, keep in mind that such acts, says Houston, are not necessarily committed against women all the time. Sexual harassment can be against males as well.

From an employer's point of view, there are two schools of thought on determining which of these two evils — quid pro quo or hostile work environment — is the most troubling.

Joey Fontenot, human resource manager for Cajun Constructors, wasn't the least bit hesitant when he says quid pro quo is worse. "That's because there is no defense to it," he says. "It happened, and if there is a tangible employment action, you're automatically liable for it. It's done. It's too late."

By comparison, he says, accusations of a hostile work environment — if you have quality procedures, processes and policy in place against sexual harassment and if you act quickly — give you an opportunity to take the appropriate action to correct the situation. "If that's done, the employer would not be liable," he says. "Also, a small, isolated incident that only happened once doesn't constitute a hostile work environment. It has to be more than just that."

The other school of thought, with just as much conviction, asserts that hostile work environment accusations are worse for the employer, mainly because the claim itself has a versatile and shifting nature. In fact, the U.S. Supreme Court has tried to corral the myriad of interpretations by drafting a list of factors that should be considered in determining whether a work environment is hostile or not.

Those factors include how frequent the discriminatory conduct occurs, the severity of the conduct, and whether it is simply an offensive remark or if it is physically threatening or humiliating. Another consideration is whether the conduct or innuendos unreasonably interferes with an employee's work performance. Also important is the effect this conduct has on the psychological well being of the employee. If the discriminatory conduct is severe enough, it doesn't have to be pervasive. But the more pervasive it is, the less severity is required.

"People who are not performing well can claim sexual harassment," Houston says. "They can say, you're picking on me because, for example, I'm female. So sexual harassment can take every corner turn in the world."

At Cajun, Fontenot has encountered that exact situation.

"We had a job in Oklahoma," and a female welder said she wasn't given an opportunity to make a weld before she was terminated," he said. "She believed she had two welds to prove herself. She was given three separate opportunities to make her very first weld and she couldn't make it, even in ideal conditions. So she claimed she hadn't been given an opportunity to bust two welds before she was terminated. She also claimed a male employee had busted more welds than she had, and he hadn't been terminated."

Fontenot says that, from a quality standpoint, both clients and Cajun require that welding be tracked "very, very closely, including by a third-party welding inspection." Because of that, he says, the company had documentation that showed what the woman said about the male employee was not true. "What saved our behind was documentation, documentation, documentation."

Both Houston and Fontenot have experiences where the victim was male, rather than female. In the incident that occurred at the public fleet in Jacksonville, a male employee's name was found on a list of predators (child molesters) on the Internet.

"Someone started printing up all kinds of material about child molestation and posting it all over the place," says Houston. "They were doing it under cover and at night. It got really bad, and we couldn't find out where it was coming from."

Houston says the postings weren't something that popped up on e-mails, but were actual painted posters that were hung up all around the building. "There are sick people on both sides," he says.

Houston told the night-shift supervisor that it had to be stopped, or "somebody is about to get in trouble. There's going to be an investigation and there's going to be all kinds of trouble."

The male employee whose name was on the predators list eventually told Houston why he had been placed on that list. The employee claimed he hadn't done anything and that he had a falling out with a girlfriend. As retaliation, "the lady the employee was visiting got her young daughter to say the employee had touched her," Houston says. "He never went to prison, but they still tagged him a predator."

Houston told the night supervisor to explain the circumstances to his staff. "I told him to knock it off," says Houston, and soon the entire issue went away.

In Fontenot's situation, two male employees formed a friendship outside the work place. One employee, who Fontenot described as "a big, tough construction guy" made a pass at the other employee's wife. The other employee was just "a little scrawny young kid," says Fontenot. The alleged harasser made remarks full of sexual innuendos to the young kid.

"It intimidated the younger guy, and he reported it," Fontenot says. "It just so happened that we couldn't substantiate the claim and it was never proved that it occurred on the job. The point is that sometimes outside situations or relationships spill over into the work place. It was a hairy situation."

Fontenot, who has been with the company for five years, was named human resource manager at Cajun two years ago. Although he has handled a number of complaints and claims of discrimination and harassment, most of them were handled in-house and never reached the EEOC. He had never encountered any sexual-harassment claims until these two incidents happened. Both of them, he says, occurred at the end of last year.

The outcomes of the accusations by the female welder and the young construction worker are still not settled. Both cases are slowly winding their way through legal channels.

"It just so happens that even though HR didn't find out until after they were filed, we had no change in damage control. We were fortunate that we had very good cases in both incidents," says Fontenot. "We did our homework. We did our investigation, and we had back-up documentation."

If there was anything that should have been done differently, he says, it was the fact that the human resource department did not find out about either incident until it was reported to the EEOC. "You never want to find out that way," Fontenot says. "Had we known earlier, maybe we could have done something to correct the situation. Finding out about the incident too late takes our advantage away. I'd rather handle the problem on the front end than on the back end."

Staying out of the legal badlands isn't always possible for employers. There are certain basic steps that companies can take to circle their wagons against attack.

First of all, establish a company policy that clearly states the company will neither tolerate sexual or any other kind of harassment nor will it tolerate discrimination of any type.

"The second part of that is to make sure your employees are briefed on that policy and that they understand where the grey areas of sexual harassment are," Houston says. "You have to avoid those grey areas."

To make sure employees know what the policy is at Cajun, Fontenot says, "we post our policy against harassment in our employee handbook. The policy states clearly what harassment is, then it goes into a procedure for filing a complaint. It gives employees an avenue for doing that. Also, on our jobsites, we have these policies and procedures posted," he says. "That way, you give every employee every opportunity to let the right people know what the problem is.

"That is one of the most critical things from a human-resource perspective," he says. "Your managers and supervisors need to be trained in sexual harassment, to know what it is, to recognize it, to detect it and, if they think they see a possible problem, to bring it to our attention. The sooner we know, the longer we have to take appropriate action."

Houston says another key to staying out of trouble lies in educating employees. "Like any other area that might come under scrutiny," he says, "you want people to be briefed on sexual harassment and you should have them sign a statement that acknowledges that they have been briefed."

The best approach to such education, Fontenot says, is face to face. A classroom environment allows you to discuss past incidents that may have happened within the company. It also gives you a platform on which to show videos or hand out materials. But most importantly, it creates an opportunity to start a dialog with employees.

Although it is difficult to gather supervisors in the same place at the same time, he says, "they all have concerns. I guarantee you that if someone has ever supervised, he's had a human-resource issue. There's no doubt about it. If you get them in there you'll get a dialog flowing."

Also, he added, have attendees at the meeting sign an attendance sheet so you can document that you did the training. "That's another ace in your pocket if you're trying to defend yourself," he says. "By doing this you can show that, in the last five years, for instance, you did the training and it included sexual harassment."

In that training," says Fontenot, "you need to emphasize what harassment is, that it can be male on male, and doesn't have to be against only females. One thing I can't emphasize enough: Teach them documentation, documentation, documentation, especially out in the field."

Fontenot says he understands that field supervisors don't like to document, "because, with the attitudes out there, if you confront someone and document it, that person will turn against you from the get-go." He pointed out, however, that the documentation doesn't necessarily have to be in writing. "If a supervisor verbally disciplines an employee, have another supervisor witness it."

Cajun is structured so that each division has a safety manager with a staff. Those safety managers, in conjunction with human resources, conduct harassment classes.

Of course, many small companies don't have a human-resources department or safety managers who can assume such responsibilities. Yet they need to protect themselves against sexual-harassment claims just as much as do larger organizations.

"If the company is just establishing a sexual-harassment policy, consult an attorney to help draft the policy," Fontenot says. He also suggested that the company have a representative join a professional association, such as the Society for Human Resource Management, that can provide resources such as training materials and can identify vendors who can supply quality films and videos to help train employees.

"Use your head before you open your mouth," Houston says, "because it's a very sensitive world out there. People are looking for ways to get others in trouble or put them on report. The other part of that is that people have different attitudes, different minds and different personalities. The bottom line is, you have to respect all those personalities and different twists that people have. Treat them with dignity and watch yourself."