OK behavior to most people can get employer into trouble.

Sexual harassment: What many people believe is OK behavior can get employer into trouble

By Rebecca Bovenmyer, Contributing Editor
Smart Workplace Practices

A Christmas party for your employees and their spouses. Seems innocent enough, right? But, at the party "grab bag" gifts are exchanged. An employee receives a sexually inappropriate gift that was put into the "grab bag" by one of the spouses. The next day the employee approaches you and complains about the gift.

Could you be held responsible if the employee wants to file a sexual harassment charge?

Yes, according to Darlene Orlov, president of Orlov Resources Management, Inc., a 20-year-old training and human resources management consulting firm. Orlov is also the co-author of a new book, What Every Manager Needs To Know About Sexual Harassment.

"The employer has a responsibility to protect his or her employees from unwanted sexual communication or advances from anyone that they would meet in the course of doing business," says Orlov.

This responsibility extends even to company parties, business trips, or any other company function.

"If the employee got a gift of a sexual nature from the spouse of another employee, even though that other individual is not employed, it becomes the employer's responsibility to protect the employee," states Orlov.

This is one of the many reasons why Orlov recommends all companies, regardless of size, implement a comprehensive sexual harassment training program. From the delivery person to the president of the company.

"Not only is it the legal thing to do," says Orlov, "it is the right thing to do. Because any employer can be held liable. You cannot escape liability because you think everyone likes it or because no one has complained."

The key thing that an employer wants is a workplace where people feel comfortable.

"Defense (against sexual harassment) is really a policy. Training people, even if it's only a one-hour training program. They need to be made aware," explains Orlov.

Twenty years ago, if a waitress was ogled by a customer, she was expected to "put up with it." "Now it is an awareness thing," says Orlov. "People used to endure things that made them uncomfortable. Now they are saying 'Gee, I don't have to do that'."

There are also economic reasons for having a sexual harassment policy. We all read about the cases of sexual harassment that go to court. What we don't read about are all of the claims that are settled out of court. Orlov says that they are very large. The pre-litigation cost, the depositions are enormous.

Employees also need the policy as a guide...what to do if there is an incident of sexual harassment.

Orlov states that "one of the things a plaintiff's lawyer would ask is, 'Did you tell anyone where you work (about the sexual harassment)? If the answer is 'Oh, they don't care' or 'My boss participates in it,' then there are no means for that employee to get it addressed internally." Employers need to have the steps for reporting an incident clearly stated in the sexual harassment policy.

Another preventative for sexual harassment is the "zero-tolerance" policy. Orlov explains: "Zero-tolerance is an environment where you don't permit the kind of inappropriate comments and behaviors that kind of 'lead up' to unlawful behaviors. The theory is that if you don't allow people to be abusive and obnoxious to each other...tell dirty jokes and say things of that nature...then the conversation will never rise to the level where it is actually sexual harassment."

"According to the law, sexual harassment at the workplace involves things of a sexual nature that are severe and pervasive. One joke in not sexual harassment. At some point it becomes intolerable. What organizations are saying is, 'We're not going to tolerate one. We're not going to tolerate one calendar, one joke, one comment. Because we know that sets the tone for problems,'" says Orlov.

How does an employer protect employees from becoming victims of sexual harassment?

1. Empower people to speak up...train them how to speak up if there is a problem. Because it can be resolved on the spot if someone just basically says "Quit doing that" and the person listens, gets it and stops.

2. Give the employee someone to report it to if they are not comfortable addressing it on their own.

To protect an employee from an accusation of sexual harassment, Orlov recommends employers "guide them in preventing the behaviors that could lead to a problem."

Another problem becoming prevalent is that of retaliation charges being brought against employers even when a sexual harassment claim is later proven to be without merit.

Orlov clarifies: "Someone brings a charge of sexual harassment and the charge was disaproved...no sexual harassment was found. But, the company is found guilty of retaliation. What happens is that even if sexual harassment did not occur, the fact that someone was bothered by the behavior of another person could cause a manager to take some type of retaliatory action. For example: Let's assume someone is not a good performer, now they bring a claim of sexual harassment. Now the manager says, 'Well, they're not performing up to standard, they're not coming to work on time. I'm going to start writing them up.' The manager does this after the sexual harassment claim so it naturally looks like retaliation for a sexual harassment claim. Even though there may not have been sexual harassment of the behavior did not rise to the level of being unlawful. The company is still responsible for actions of someone who deliberately tried to retaliate against someone who brought a claim."

Hostile work environment...does this mean employees assaulting other employees? It is not quite that drastic. Orlov says, "A hostile work environment is one in which things of a sexual nature rise to a level of interfering with someone's ability to do their job." This is where the zero-tolerate policy comes in...making sure that everyone knows that you do not tolerate anything of a sexual nature in the workplace.

Orlov explains that sexual harassment and sexual discrimination are not the same thing. "Sexual harassment is discrimination based on gender. Someone not given an opportunity because they are a woman or because they are a man. Sexual harassment if a form of sexual discrimination. It relates specifically to things of a sexual nature."

If an employee comes to you can complains that coworkers are using rude and offensive names for another coworker, should you be worried about a sexual harassment claim? According to Orlov, technically, no. "Calling someone stupid or saying they're incompetent is not sexual harassment, perse. But if an employer permits that kind of disrespectful, abusive environment, then it's a short distance from calling someone stupid to calling them a name that may be derogatory and gender-related."

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