Sexual harassment cases have moved
beyond the stereotype of the female
subordinate versus her male superior.
Today, your company can be sued by an
employee, male or female, who happens to
overhear vivid watercooler conversations
between two co-workers.
“The courts have expanded the definition
of sexual harassment, including behaviors
that previously were not actionable under
the sexual harassment laws,” says B. Allison
Borkenheim, attorney at law with Procopio,
Cory, Hargreaves & Savitch LLP. “The cost of
defending a case from the day a complaint is
filed through trial can be significant, even if
you defend the case successfully. If you don’t
prevail, in addition to your defense costs,
you’ll have to pay the victim’s legal costs.
Preventing the claim from happening in the
first place is the most cost-effective solution.”
Smart Business spoke with Borkenheim
about what CEOs can do to prevent and
defend sexual harassment claims.
What is sexual harassment?
Generally, sexual harassment refers to
unwelcome advances, requests for sexual
favors and other verbal or physical conduct
that unreasonably affects an individual’s
employment. Over time, the definition has
expanded to include conduct or behavior
that occurs ‘because of sex,’ but is not ‘sexual’ in nature. Claims for sexual harassment
can be brought for actions perpetrated by
supervisors, co-workers and, under certain
circumstances, third parties who interact
with employees.
What is the employer’s responsibility in preventing sexual harassment?
Employers are expected to prevent sexual
harassment in the workplace, and they can
be held liable if the employer (or supervisors)
knew, or should have known, about the
harassment and failed to take appropriate
corrective action.
What constitutes an effective sexual harassment policy?
Here are the best practices for administering an effective sexual harassment policy:
1. Have a written sexual harassment policy
that includes a statement of nontolerance for
the behavior, a plan for the employee to follow if he or she is harassed, and a process for
investigating claims of harassment. This is
required by law and is the first line of defense.
2. Include a nonretaliation policy as part of
your plan.
3. Communicate the plan both verbally and
in writing and have employees sign and
retain a copy, acknowledging receipt of the
policy and knowledge of the consequences.
4. Recommunicate the policy and have
employees sign a new copy each year.
What actions should CEOs take to enforce the
policy?
I often find that behind many cases is a victim whose feelings were hurt because no one
stopped to listen or sympathize. Besides having a written sexual harassment policy, here
are my other recommendations for CEOs:
1. Have good, solid human relations practices and open communications.
2. Appoint a policy enforcer, such as the HR
manager who can walk the halls and personally observe and monitor employee behavior.
3. Address inappropriate behavior before
someone complains.
4. Personally attend sexual harassment
training and train all employees.
5. Implement a no-dating policy for supervisory staff or require that dating employees
inform management about their relationship.
6. Don’t be afraid to take corrective action
if it’s called for. Consider using third-party
investigators in cases of alleged supervisor
harassment to ensure objectivity.
7. Don’t discriminate when investigating or
assigning discipline; don’t protect a highly
valued employee at the expense of enforcing
your policies.
8. Don’t retaliate against the person who
complained about the harassment. It is illegal
and provides the employee with another
cause of action to pursue.
9. Screen new hires carefully. Conduct reference checks and spend time with prospective employees asking behavioral interviewing questions so you know if they are not only
a technical but also a cultural fit.
Where are sexual harassment claims filed
and how does the jurisdiction affect the
defense?
Claims can be filed in federal court under
Title VII of the Civil Rights Act of 1964, which
prohibits discrimination in employment.
There are effective defenses to federal
claims. Several consider an employer’s policies to prevent sexual harassment. Liability
may be determined by the reasonableness of
the actions taken by the employee. For
example, if the employer had a preventive
policy and the employee unreasonably failed
to take advantage of it, then the employee
likely will not be able to recover damages.
Claims filed in California under the Fair
Employment and Housing Act (FEHA) are
more difficult to defend because an employee’s failure to follow an employer’s complaint
procedure may not result in a complete
defense to all liability. Also, California courts
tend to be more generous with awards. On
the positive side, in California an employee
can only recover ‘reasonable damages,’
which excludes those damages the employee
could have avoided with reasonable effort
and without undue risk.
B. ALLISON BORKENHEIM is an attorney at law practicing in employment counseling and litigation with Procopio, Cory, Hargreaves
& Savitch LLP. Reach her at (619) 515-3280 or [email protected].
