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Human resource tools and information whenyou need them

SEXUAL HARASSMENT

A Business Time Bomb

William H. Truesdell 1998 The Management Advantage, Inc.

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Can you hear it? It may be in your own business establishment. Listen. ...Tic...Toc...Tic...Toc.

That same sound can be heard in thousands of small businesses across our country. It is the time bomb called "Sexual Harassment." Unfortunately, most business owners and managers have no idea that they are faced with this potentially explosive problem. They aren't less smart than managers in big business, they just don't have time to spend learning about such problems. Small business owners tend to manage problems as they arise: the supplier is late with deliveries again, one employee hasn't shown up as scheduled, and a customer wants a special order in half the normal time.

Yet, it is still there, if you listen. Tic...Toc.

Why is there so much attention paid in media stories and consultant advertising these days to the subject of sexual harassment? Somebody else must be having a problem, right?

The answer is, yes. Somebody else is having a problem. Their bomb exploded. The Equal Employment Opportunity Commission (EEOC) expects to handle double the number of complaints about sexual harassment it received last year. It could be your problem, too, if you happen to believe some of the myths which abound on the subject.

Myths are stories and beliefs created for convenience. They are the things we sometimes want to believe, rather than the reality of what is going on.

One myth about sexual harassment is that employers don't have a problem in their organization if they have had no complaints from any of their employees. In fact, very few cases of sexual harassment ever generate complaints to employers. Although most victims of this behavior are female, nearly all victims find it an extremely difficult subject to talk about. They frequently feel embarrassed about discussing incidents of harassment, often believing they will be viewed as having encouraged the behavior. Complaints are also limited when the harassment comes from supervisors or managers with power over the victim's employment. In a Redbook magazine poll last year, more than 88% of women workers surveyed said they had suffered sexual harassment on the job. It is not safe to assume you don't have a problem just because you haven't received any complaints. A strong program for prevention is necessary to avoid serious liability.

Another myth believed by some employers is that what they don't know won't hurt them. A landmark U.S. Supreme Court case, Meritor v. Vinson in 1986, said that employers may be held liable for sexual harassment even if the employer had no idea harassment was going on. So much for that myth.

And, in 1998, the U.S. Supreme Court issued a ruling in Oncale v. Sundowner Offshore Services, Inc. which said that sex discrimination consisting of same-sex harassment is actionable under Title VII.

Sexual harassment doesn't have to originate from supervisors or managers. It can come from co-workers and often does. What many people need to learn is that a court can hold them personally liable for fines if they are found guilty of such behavior. So, individuals as well as companies are at risk financially in these situations. That was made clear in 1981's Kyriazi v. Western Electric Company when a New Jersey appellate court upheld a lower court's findings.

Even when the harassment comes from someone who is not associated with your company, like a technician who comes to fix an office machine problem, your business can be held liable if you do not take immediate and appropriate action to prevent further harassment.

The U.S. Supreme Court has strengthened the definitions given to sexual harassment by the EEOC. That federal agency is charged with enforcing provisions of Title VII of the Civil Rights Act of 1964 which prohibits discrimination based on sex. Sexual harassment has been categorized as a form of sex discrimination. In California, the State has provided another enforcement agency to assure compliance with similar state legislation. The Department of Fair Employment and Housing (DFEH) accepts complaints concerning violations of these state laws. Both agencies conduct formal investigations and can take an employer to court if that is deemed necessary.

Avoiding this type of problem is possible by assuring you have a good prevention program in place. Businesses of all sizes need to be aware and concerned. Small businesses can least afford to spend the time and money required in responding to enforcement agency complaints or legal cases caused by sexual harassment. Yet, even small businesses are accountable for problems of sexual harassment. All companies need to create their own prevention program. Here's how we suggest you do that.

Preventing Sexual Harassment

  1. Establish a clear, detailed, written policy focusing on the issue of sexual harassment.
  2. Train all employees in types of unacceptable behavior and the risk of personal liability if they are charged in a sexual harassment suit.
  3. Survey work quarters for offensive written or photographic materials and eliminate them.
  4. Establish a complaint handling procedure which allows employees to talk with a management person other than their supervisor if necessary. Take all complaints seriously.
  5. Handle investigation of complaints with sensitivity for both the complaining employee and the person against whom the charges are leveled. Recognize that individual privacy rights must be protected.
  6. If charges are substantiated by the investigation, tailor your discipline of the employee to the offense. Discharge may be appropriate in certain cases.

If you need help understanding how these recommendations can be adopted within your organization, or how you should deal with a specific situation involving sexual harassment, call a consultant who specializes in personnel management issues or talk with your labor attorney. Either way, by spending a little for advice you can save a lot by avoiding large penalties and protracted court cases.

In any event, help your employees understand that sexual harassment will not be tolerated by your organization. Remember, SEXUAL HARASSMENT IS BAD BUSINESS.

Tic...Toc...Tic...

CHECKLIST OF TYPICAL RESPONSES

Sexually Harassing Behavior

Typical Responses of Harassers

Threats if advances are rejected.

"It's my word against (his/hers). Who are you going to believe?"

[Look for history of such behavior.]

Visually offensive photographs, magazines, calendars, or computer graphics.

"I have a right to have whatever I want in my private work space. No one has to come look at it."

[Get rid of it anyway. Employer can control what is in workspace.]

Verbally offensive behavior such as dirty jokes, lewd or suggestive remarks, unwanted invitations if constantly repeated.

I'm just trying to be friendly."

"Everybody thought it was funny."

[This is neither friendly nor funny. Employer must insist it stop or impose discipline.]

Unwanted bumping, touching, stroking, cornering, mauling, grabbing, kissing, hugging, pinching, gesturing of a sexual nature.

"Just initiating the new employee."

"I'm trying to make him/her feel welcome."

[Employer must put a stop to such behavior.]

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