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Business Journal

Santa Rosa, Ca Serving Sonoma and Marin counties Vol. 7 No. 23;March 14, 1994
Reprinted from the Business Journal
Copyrighted 1994 by Sloan Publication, 5510 Skylane Blvd.
#201 Santa Rosa, CA 95403 (707) 579-2900

Sexual harassment: Prevention and
remedies for a difficult problem

By Randal M. Barnum

In the two years since the Clarence Thomas hearings, sexual harassment charges filed with the Equal Employment Opportunity Commission have increased 69%. Ninety percent of the nation's largest corporations have had claims or complaints of sexual harassment filed against them. More than one third were eventually sued; a quarter have been sued repeatedly. One large company estimates that it loses, on average, $6.7 million per year in sexual harassment related costs including legal costs, absenteeism, decreased productivity and high turnover. Thus, employers need to take precautions to avoid legal exposure and related costs associated with this problem.

Taking effective action to prevent sexual harassment in the workplace begins with an understanding of what constitutes sexual harassment.

Defining the problem

While there are common misperceptions about what constitutes sexual harassment under the law, which defines prohibited conduct very broadly, sexual harassment can include not only physical contact of a sexual nature, it also includes unwelcome sexual advances; requests for sexual favors; and derogatory posters, cartoons, drawings, jokes, or innuendo. Recent law has defined sexual harassment as that conduct which is offensive or abusive to a "reasonable woman." Also, a complainant need not establish the existence of a psychological injury to maintain a claim for sexual harassment.

Nevertheless, there are actions that an employer can take, both before and after a complaint arises, that can significantly reduce its exposure for claims of sexual harassment.

Effective prevention

An effective sexual harassment prevention program should include the following components:

Developing a written policy

An effective policy includes a statement of the company's commitment to a harassment-free workplace, a specific description of the kinds of behavior that are prohibited, and acknowledgment that sexual harassment can be perpetrated in same-sex situations and by women, as well as men.

The policy should also include a complaint process, a promise of no retaliation for submitting complaints, and an investigative procedure that preserves as much confidentiality as possible for the parties involved. Also included should be a list of disciplinary actions, ranging from reprimand to termination if sexual harassment is found to have occurred.

It is also advisable to include a statement that any malicious false complaint will also be punished and a description of how the company will deal with harassment by nonemployees such as customers or vendors.

The complaint procedure must include several people of both sexes and different ages designated to receive complaints. That way, it's more likely that the complainant can report to a person with whom she or he will feel comfortable in making a complaint.

Also, a complainant should not be limited to reporting to his or her immediate supervisor. Sometimes the harasser is the immediate supervisor. Case law has held that a policy that only allows a report to the immediate supervisor will not protect an employer from liability. If your company is not large enough to permit multiple people to handle such complaints, consider retaining an outsider to receive and handle them. This could be someone with a human resources, legal, or counseling background.

Training programs

A written policy alone is not enough. Everyone from management down should participate in initial and refresher interactive training programs. These programs should explain what sexual harassment is, how to use the company's complaint policy, how investigations will be conducted, possible disciplinary actions, how the company will treat incidents of outside harassment, and other issues that cannot be explained in a written policy.

Studies indicate that men and women have different attitudes about the welcomeness of sexually oriented conversations, jokes, pictures, and behavior in the workplace. These attitudes can be aired in training programs. This is also a place to communicate how harmful sexual harassment can be to the victim, even when it is strictly verbal.

Additional specialized training should be provided for investigators. For example, the first interview should not be a cross examination. Rather, it should be designed to obtain facts in a nonjudgmental, nonthreatening manner.

A prompt and thorough investigation

An employer's ability to protect itself does not end with efficient and effective policies and training programs. Under both federal and California law, the liability of an employer may depend upon whether it takes "immediate" action in response to a complaint of sexual harassment. Thus, once an employer becomes aware of such a complaint, it should investigate it promptly. The employer should designate one or more employees who have training in sexual harassment claims to interview both the alleged harasser and the complainant thoroughly. Each party should feel that his or her version of the story is fully heard and considered. The investigator must be an impartial party who will not unduly favor the claims of the complainant or the alleged harasser.

It is also important to keep an accurate account of the investigation. Included in the report should be accounts of all interviews taken, as well as any disciplinary action. The record will help the employer in any subsequent action taken by the alleged harasser challenging the disciplinary action. Also, if the complainant is not satisfied with the results of the investigation, the written record may justify the employers action in a subsequent inquiry.

As a guideline, the goal of a sexual harassment investigation should be to determine exactly:

The investigation must be "immediate, thorough, objective, and complete." Even if a claim appears frivolous, it should be treated as valid until established otherwise. Do not unnecessarily disclose information to witnesses or others. If there is more than one allegation, treat each incident separately. To avoid charges of defamation, the employer should never publicize the results of the investigation as an example to others.

After the investigation

After the investigation, the employer must evaluate the evidence to determine the extent to which the conduct was unwelcome and its severity, pervasiveness, and frequency. Once the employer makes its determination, the results must be communicated to the complainant, to the alleged harasser, and, as appropriate,  to all others directly concerned. The nature of the employer's response, of course, will depend on the results of the investigation.

If the investigation reveals that sexual harassment has occurred, the employer is obligated to take reasonable action to prevent the harassment from continuing. Considering the severity, frequency, and pervasiveness of the conduct, the employer's options could include issuing an oral or written warning, placing the harasser on probation, or termination. Any form of discipline short of termination should be accompanied by a written warning that similar misconduct in the future may result in immediate termination.

After the above steps have been taken, be sure to find out that what you did worked. Be sure that no one is being retaliated against, and talk to the victim to see if there have been any further problems.

Weighing the costs

Eliminating sexual harassment presents special challenges to businesses in the current legal environment.

Although liability from a lawsuit is only one part of the cost of sexual harassment, related costs are substantial. Although the time, effort, and the cost of implementing an effective sexual harassment policy are considerable, the economic and social costs of not doing so are potentially even higher.