What does the government say is illegal sexual harassment?

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When is an accusation of sexual harassment
really illegal sexual harassment?
Sample policy on sexual harassment...
What isn't harassment can cost you
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When is an accusation of sexual harassment really illegal sexual harassment?

By John Skipper
Contributing Editor
Smart Workplace Practices

Quick, now. Suppose a manager in your workplace did what President Clinton was accused of doing to Paula Jones. What is your responsibility? Remember, you don’t have the luxury of hiring a special prosecutor who can investigate it for years. In a sense, you’re the special prosecutor — and the judge and jury as well. But if you’re not careful, it could be you rather than your employee who winds up in court.

Here’s the scenario. Your manager is speaking at a hotel convention. A woman who works for him is taking registrations at a desk in the lobby. She gets a message that your manager wants to see her in his hotel suite. She goes to his room where he asks her to perform oral sex on him. She refuses, and leaves in disgust. The next day....or the next month....or the next year, she calls a press conference and announces she is suing him for sexual harassment. It is your job to sort out the facts. (You’re the special prosecutor, remember?)

Was this an example of woefully poor behavior — or was it sexual harassment? The answer, it seems, is still evolving because it is a relatively new kid on the legal block, brought into the limelight during the Clarence Thomas confirmation hearings during the Bush administration.

Some points are clear, though. Sexual harassment is a form of discrimination. Popular columnist Ellen Goodman calls it "the sex part of sex discrimination." It violates federal law in two areas: educational settings and in the workplace. Legal analyst John Leo describes it as the "sleep with me or you’ll lose your job’’ exploitation. But the law takes it a little further than that.

In the workplace, sexual harassment has been defined as "unwelcome sexual conduct." The definition prompted Judith Lichtman of the Women’s Legal Defense Fund, to lament: "That implies that people get one free pass. How else do you know it’s unwelcome?"

In the situation involving your manager and his employee, the latest U.S. Supreme Court rulings (June '98) means illegal sexual harassment may exist

Sample policy on sexual harassment...

The Complete Employee Handbook Made Easy manual (available from Employers of America) contains sample language on the topic of sexual harassment. The sample policy covers these items which the new Supreme Court decisions now make essential if an employer wants a defense: Notice that the employer prohibits sexual harassment...clear definitions and examples of sexual harassment...and a procedure for the employee to follow when an employee experiences harassment.

The Complete Employee Handbook Made Easy (covering 101 topics in 304 pages, with a computer disk) is available for a FREE 30-day review.

The government says sexual harassment is sexual attention that is:

• Unwelcome and unwanted. •Affecting the victim’s physical and emotional health and interfering with the ability to do a job. •Perceived by the victim to mean that submission is a condition of employment or advancement.

Another potential workplace example: Jane is a good employee who sits next to Ralph. One day, Ralph puts a calendar on his desk that has a nude pin-up in full view. The photo makes Jane uncomfortable and she tells Ralph first, and then she tells you that it is bothering her. A week later, she complains to you again.

There are two red flags here: (1) Her emotional health as well as her comfort and probably her job performance, may be affected by the refusal to take down the calendar. (2) She’s made it clear that the conduct is unwelcome.

Here are some tips on what to do if an employee reports an incident of sexual harassment to you.

Take all complaints seriously so your employee sees that you are sincere, unbiased and non-judgmental.

Talk with the employee but also make sure you get a written account of what happened and specifically, what constituted the harassment.

Respond quickly to the complaint. If you have a human resources manager, turn the information over to that person immediately. If you don’t have someone like that on staff, consult an attorney.

Steven Bahls, dean of the Capital University Law School in Columbus, OH, suggests that the first step toward preventing sexual harassment complaints is to watch your own behavior.

Since a disgruntled employee might someday charge you with sexual harassment, says Bahl, you can make sure any such charge would be groundless. Here’s how: Never touch your employees without permission. Never be demeaning to people, particularly with reference to gender. Never treat employ-ees as potential dates. Never get romantically involved with an employee. Never make suggestive comments. Always make sure that compliments contain no innuendo. Always keep your office door open when meeting with someone of the opposite sex.

Frances Lynch, a judge in Tucson, AZ, tells employers if you want to avoid a sexual harassment lawsuit, the best advice is to take all complaints seriously and investigate them promptly. Handle your investigation discreetly to avoid office gossip. Tape record interviews if possible or have a witness present. Interview both the complainant and the accused with compassion, the judge advises, because you must remain impartial until you know the truth.

What isn't harassment can cost you

That's right. Even when NO harassmennt affected an employee, it can trigger damages against an employer.

The case, Leibovitz v. New York City Transit Autority: Diane Leibovitz, working for the Transit Authority, heard that other women (but not her) were being sexually harassed...she complained to managers. (She never directly witnessed the harassment.) But management delayed several months before investigating the complaint.

A federal judge upheld a $60,000 award to Leibovitz...saying management's delay in investigating sent a message to Leibovitz that the Transit Authority condoned sexual harassment.

Lynch also suggests that you do exit interviews with any employee leaving your company for any reason. In the course of the interview, ask if the employee ever encountered sexual harassment. If the answer is "yes," act on it immediately. If the answer is "no," and you have it in writing, you have some protection against a complaint ever being lodged by that former employee.

Smart Workplace Practices: To prevent sexual harassment complaints:

If you don’t have a policy prohibiting sexual harassment, develop one and make sure it is included in your employee handbook. Define harassment, state that the employer won’t tolerate it and make sure employees understand it’s OK to blow the whistle on someone.

Make sure your employees know what they should do if they experience sexual harassment.

Be observant in your workplace. If you take steps to stop inappropriate behavior, no matter how innocent it may seem, you may save yourself from far more serious problems.

Don’t forget the three most important parts of any investigation of alleged sexual harassment: Document, document, document.

Give your supervisor tools, training to protect against sexual harassment, other employee-connected headaches

Give you supervisors and managers the skills and tools to protect themselves and your organization from sexual harassment lawsuits and other employee-related problems and lawsuits. Result: Less risk to your organization. Less stress for you and for your supervisors. You increase your protection by reducing the chances that supervisors' mistakes and misstatements could lead to sexual harassment and other legal actions.

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