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CASE STUDIES IN SEXUAL HARASSMENT

 

Sexual harassment is one of the most frequently-discussed topics in employee relations today. There is good reason for that: no other kind of claim has quite the scare and shock value that a sexual harassment claim carries. That is because most people associate sexual harassment with sexual overtures, unwelcome touching, or outright assaults on an employee. Such actions are usually accompanied by promises of favorable treatment at work or by threats of unfavorable treatment. However, that form of sexual harassment is rare compared to the much more frequent situation of a hostile work environment. A hostile work environment, as far as sexual harassment is concerned, arises from any conduct in the workplace that has the purpose or effect of unreasonably interfering with a person's work performance or creating an intimidating, hostile, or offensive working environment. In many ways, employers have a harder time dealing with the latter type of sexual harassment because it can be so hard to spot, whereas the former variety of sexual harassment, the so-called "quid pro quo" harassment, is fairly easy to recognize. This article is intended to highlight some cases that illustrate both types of harassment.

 

Not all interesting cases arise in court. One of the cases most illustrative of both types of sexual harassment was an unemployment claim. A female employee who had been discharged from her former employer filed for and received unemployment benefits, a decision which the employer appealed. At the Appeal Tribunal hearing, the employer's president stated that she fired the claimant for not going directly to her with complaints of sexual harassment from a male supervisor and for allegedly circulating a petition to get rid of him. The claimant stated that she was unsure of the employer's chain of command and procedures for reporting complaints such as hers. She took her complaints to a supervisor in the marketing department, who told her to go to yet another manager, who the claimant thought was the alleged offender's direct supervisor. That manager assured the claimant and a co-complainant that their jobs would not be endangered by their reports.

 

To justify her dismissal of the claimant, the president submitted a copy of the employer's progressive disciplinary policy, which stated in part: "Inability or unwillingness to work harmoniously with other employees calls for two written warnings followed by discharge." The president did not follow that policy, stating at the hearing that she felt the claimant's failure to go directly to her was serious enough to merit discharge.

 

The Commission ruled that neither of the employer's two stated reasons for firing the claimant were grounds for disqualifying her from unemployment benefits. The employer had no firsthand evidence to prove that the claimant circulated a petition to get rid of the alleged harasser, so that charge went nowhere. The charge of failing to report sexual harassment directly to the president was unsuccessful for several reasons.

 

First, the employer never refuted the claimant's testimony to the effect that the supervisory structure of the company and the correct procedures for reporting sexual harassment were never made clear to her. Second, the employer did not rebut the claimant's testimony to the effect that she did not feel the president would be receptive to such a complaint, in view of the president's comment at one point that the claimant and other female employees could celebrate Halloween by reporting to work unclothed and serving as "pull toys" for the alleged harasser.

 

Third, a female supervisor testified at the hearing and admitted that the claimant had informed her of the alleged harassment, yet she failed to report the complaint to the president and, according to the claimant, even told the claimant to "blow it off". That same supervisor also admitted that she herself complained once to the president that the same alleged harasser had touched her inappropriately at work. Of course, this testimony was not much help to the alleged offender, who was at the hearing, but who gave only a vague and not very credible denial of sexual harassment against the claimant.

 

Fourth, the president acknowledged that she did not discuss the allegations of sexual harassment with the claimant before discharging her. That shows that the employer gave the claimant no chance to explain her side of the situation and possibly show why discharge would not be the best thing to do. If she had done that, she might have had a chance to reconsider before putting her company at risk.

 

Fifth, in explaining the reasons for firing the claimant, the president mentioned that the claimant had "turned her in to the EEOC". The fact that the president considered the EEOC complaint important enough to mention in conjunction with various reasons for firing the claimant only highlighted the problem with the employer's basic position with regard to sexual harassment. Making a complaint to EEOC can in no way be considered an act of misconduct. Even if an employer were to adopt a rule prohibiting employees from consulting EEOC, such a rule would be void, i.e. unenforceable as against public policy. In fact, it is a violation of the Civil Rights Act of 1964 to discharge a person in retaliation for filing an EEOC claim.

 

Finally, the employer did not give a satisfactory explanation for why it did not follow its own progressive disciplinary policy in the claimant's case. Even if the claimant had intentionally ignored a known policy, the disciplinary policy called for two written warnings prior to discharge. The claimant was fired for a first offense, no prior warnings having been given. The employer did not explain how the claimant could or would have known that the stated policy would not apply to her.

 

Lessons to be drawn from this case:

  1. adopt a clear policy on sexual harassment

  2. educate all employees on the various forms sexual harassment can take and on the harm it can cause

  3. have an organized procedure for quickly and effectively dealing with such complaints and ensure that everyone knows about it

  4. follow not only the sexual harassment policy, but also the disciplinary policy - if conflicts exist between the two policies, be careful how you resolve them

  5. set the example for the employees - the best policy in the world will be useless if management lets employees see through its actions that it does not take the problems seriously, or worse, as in the president's case, if management is part of the problem.

 

Bottom line: if the employer in this case had taken a different attitude toward the sexual harassment complaints of the claimant and had had a clear and effective policy in place to deal with such problems, the claimant may not have felt she needed to turn to the EEOC for help. Letting employees know you are more interested in preventing sexual harassment than in protecting the company's position if it occurs is probably the best thing a company can do for itself to avoid trouble with agencies such as the EEOC.

 

One of the most well-known sexual harassment cases in recent decades was that of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), decided by the U.S. Supreme Court. The Supreme Court held that a sexual relationship is "involuntary", even if the victim fails to make a complaint until after leaving the employer, if the relationship is unwelcome. A supervisor with the bank propositioned the female plaintiff in that case, his subordinate, during her first year with the bank. Fearing she would lose her job if she refused his advances, she went along with a sexual relationship for two years. Among other things, he fondled the plaintiff in front of other employees, followed her into the restroom when she was there by herself, and even exposed himself to her on some occasions. She did not report the problem to higher management because she was afraid. The Court held that the plaintiff could recover damages from her employer by showing that the harassment was 1) unwelcome and 2) severe enough to create an "abusive working environment". The plaintiff in this case won on both counts.

 

It is possible to win a "quid pro quo" harassment case. A case involving the U.S. Postal Service held that an employer can fight a claim by showing that the decision affecting the employee was reached for legitimate business reasons and was without any input from the alleged harasser.

 

In the area of "hostile work environment", courts have also ruled both ways. Isolated harassing comments, even though offensive, will not necessarily support a sexual harassment claim. Harassing comments, if repeated and having a demonstrably harmful effect, may well cause liability. By the same token, a single attempt to date a subordinate was insufficient to establish liability. Courts are in agreement that continually subjecting an employee to lewd and derogatory language will make an employer liable for damages.

 

In another interesting case, an employer was held liable for harassing actions committed by some of its male employees toward a female employee. They had made unwelcome sexual advances and remarks toward her. A lower court had ruled that she could not have been offended by such conduct, since she had once posed nude for a motorcycle magazine. The appeal court reversed that ruling, reasoning that since the female employee considered the male workers' conduct unwelcome, and since a reasonable woman would have considered such conduct offensive, it made the employer liable. This is only one of several rulings that make it clear that courts apply what is known as a "reasonable woman" standard, which differs from the reasonable person standard in that if a woman is the victim of the harassment, what matters is what a reasonable woman in such a position would think of the conduct in question.

 

It used to be that an employer that did not know about acts of harassment committed by its workers would be protected from liability as long as it acted quickly to deal with the problem as soon as it found out what had happened. That view has changed over the years to make an employer strictly liable for the acts of its managers and other supervisory personnel. Now, in order to escape liability for a manager's or supervisor's harassment against an employee, an employer needs to show not only that it took prompt and effective action once it learned of the harassment, but also that its policy discourages acts of harassment, makes it clear that such conduct is outside the scope of employment of any employee, encourages reporting of such acts, and provides an effective way of dealing with the allegations. An effective policy and effective enforcement of the policy can help an employer escape liability in case of a lawsuit. Courts are in agreement that a policy for resolving sexual harassment complaints is ineffective if the one making the complaint has to first go through the alleged harasser to do it.

 

Some illustrative court cases:

  1. a female flight attendant complained about harassment by a pilot. The airline investigated fully, issued the pilot a written warning and advised him to stay away from the flight attendant, and concluded that some of her allegations were baseless. The court held that the employer acted reasonably and was not obligated to believe every one of her accusations.

  2. in another case, the employer promptly investigated the plaintiff's allegations against a coworker and placed the harasser on 90-day probation with a written warning. The plaintiff sued the employer, claiming the employer should have taken harsher measures. The court ruled in the employer's favor, reasoning that the employer had acted reasonably and was not obligated to fire the offender to escape liability.

  3. on the other hand, a court ruled that an employer who knew of obscene cartoons depicting the plaintiff failed to act reasonably when he waited until she complained to take the offending pictures down.

  4. also, one spectacular case of incredibly bad judgment involved an employer which fired the plaintiff, a waitress, after she complained of sexual harassment by a cook. The employer reasoned that it was easier to replace a waitress than a cook. Needless to say, the employer lost.

  5. in a case showing that an employer may be liable for the acts of its customers, a waitress was sexually harassed by several male customers, all personal friends of the restaurant owner. The waitress told her employer she would not wait on those people in the future and that she had consulted an attorney about her legal rights. The employer fired her, despite the fact she had always been a satisfactory employee. The EEOC ruled that the employer had the ability to remedy the situation, but failed to do so. He could have told the customers that such conduct would not be tolerated in the future and could have relieved the waitress of the duty to wait on them. The employer's failure to take any corrective action made it liable on the waitress' sex discrimination charge.

 

In a case ideally suited to teach how not to handle a sexual harassment situation, Lipphardt v. Durango Steakhouse of Brandon, Inc., 86 FEP Cases 1409, (11th Cir. September 28, 2001), a restaurant employer managed to do just about everything as wrongly as it could be done, and in so doing showed how important common sense is in the area of employee relations. A restaurant's manager and a subordinate employee, a female server, carried on a consensual relationship for a while, but then the subordinate broke off the relationship. Thereafter, the manager refused to work with her, but still sought encounters with her, brushing up against the server on several occasions in a sexual way, threatening to hurt her and her child, and on the final occasion confronting her in the office and propositioning her. They argued for about a quarter of an hour, after which the server was able to leave, but when she later went to her car, he followed her out and prevented her from closing her car door, while begging her to reconsider the breakup. On the following day, the manager asked the server whether she would report his behavior, which she did, telling the general manager, a second manager, and a regional manager. She even requested a transfer.

 

Here's where the plot thickened: the female employee went on vacation, whereupon the general manager told the manager that the general manager's supervisor was considering firing both the manager and the server. ("No, no", you whisper, "not the server - fire the manager!" Alas, they cannot hear you...) At the trial (of course, there was a trial - remember, this article is about managers who did not do the right thing), the harasser testified that the general manager asked him whether he could tell him anything that would justify getting rid of the server, since the employer would rather not fire him, but instead wanted to "get rid of the b----". ("No, no", you shout, "it's not too late - this is a no-brainer - fire the manager!" Sadly, they still cannot hear you...) The harasser then obligingly told the general manager about the server giving away food for free in order to get free tans at a salon. (Aahhh, yes, the last refuge of a desperate manager - dig just deeply enough to find something, anything, to use against an employee and then lower the boom - there's no chance anyone would view that as a trumped-up charge, right?)

 

The general manager recommended that the regional manager terminate the server based upon that report, even though neither of those two higher managers had bothered to confirm the manager's report about the food giveaways. Unfortunately for the employer, the evidence at the trial showed that the employee giving away free food was someone else and that the manager, desperate to save his own position, had not actually witnessed the server doing such a thing. In other words, he based his report on secondhand, hearsay statements from others.

 

The female server won her lawsuit charging the employer with illegally retaliating against her for filing a complaint about sexual harassment. As the court observed, just because the server and the manager had had a consensual relationship in the past, their prior history did not give the manager a "free pass" to harass the server at work later. In addition, the court held that the jury could properly conclude, as it did, that the harassment crossed the border between personal animosity, which is not illegal, and sexual harassment, which is illegal.

 

Lessons to be learned from this case:

  1. consider having a policy forbidding excessive fraternization between supervisors and subordinates, as well as between any two coworkers to the extent that their relationship spills over into the workplace and has the potential to reduce anyone's productivity;

  2. you don't need a law to tell you that regardless of whether a manager is acting against employees out of personal animosity or sexual harassment, the manager is bad news;

  3. don't ever try to do a favor for a loser like the manager in question, because at the ensuing trial (and with a loser like the one in this case, you just know there's going to be a trial!), the manager will turn around and bite your hand by testifying that you offered to "get rid of the b----" for him;

  4. if you have to ask around for reasons to fire someone, that's probably a good sign that you don't have enough to go on, so you'd better forget it;

  5. if you do decide to listen to what a known "toucher" tells you about one of his victims, at the very least try to independently confirm his story before using it as the basis for discharging the victim; and

  6. before you fire someone, if you hear a little voice telling you to "be careful", please listen to that voice and bounce the situation off of someone else who can advise you from a neutral, professional standpoint!

 

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