HOW
TO PROTECT YOURSELF AND YOUR COMPANY AGAINST SEXUAL HARASSMENT
CLAIMS
Numerous
articles have been written concerning the law governing
sexual harassment in the employment environment. Most
of them address how to draft sexual harassment policies,
how to conduct sexual harassment investigations and how
to remedy meritorious complaints. Unfortunately, few
employers do much to educate their executives, managers
and other employees as to claims avoidance strategies
other than to promulgate their sexual harassment policy
in an employee handbook. Years of litigation have demonstrated
that this is not enough. What follows, then, is some
practical advice distilled from defending various and
sundry sexual harassment claims and lawsuits. The advice
applies equally well to women, who themselves are facing
such claims with greater frequency today. And, by the
way, the following thoughts also apply to attorneys in
their personal conduct as well as that of their clients.
Point
one: Read your employer's sexual harassment policy
and make sure you understand it.
As
a starting point, your employer's written policy regarding
sexual harassment should address some of your basic concerns,
such as what is viewed as sexually harassing conduct,
and what personal relationships are "forbidden". Before
entering into a personal relationship with an employee,
or more realistically, when one realizes that a working
relationship has turned into a personal one, determine
what that policy provides regarding such matters.
Point
two: While Title VII of the Civil Rights Act of 1964
does not make sex or sexually related conduct arising
out of workplace relationships unlawful, your employer
may have a different view
Contrary
to the impression of some, Title VII does not forbid
all employee personal relationships, even those between
individuals who are in different levels of the same "chain
of command", but that does not preclude your employer
from doing so. Thus, many businesses have strict no fraternization
rules. Those rules may be separate from your company's
sexual harassment policy, so you had best review all
the provisions of your handbook that may be relevant
to your relationship with a particular individual.
Point
three: If in doubt, seek advice, if only "hypothetically".
Your
employer may have no written policy, in which case it
is exposing itself to greater risk of liability and you
may be left in a quandary as to whether a particular
consensual relationship will be frowned upon, or worse.
You have a choice. You can ask the person who would likely
be in charge of determining whether specific conduct
was proper or improper. In that case, be prepared to
be bound by the "decision". Alternatively, you can assume
the relationship would or would not be of concern, as
well as the risk that flows from making that assumption.
Trust me, the former course, though perhaps awkward,
is almost always preferable.
Point
four: A relationship or conduct that was consensual
can later become objectionable and, it follows, unlawful.
As
we painfully learn, usually somewhere around 7th or 8th
grade, the sustenance of every personal relationship
is subject to the vagaries of two people. For our purposes,
we are assuming that you are happy to continue with the
relationship or conduct at issue, but the object of your
affections is not. Again, you realize that had you chosen
not to become involved, things would not have reached
this delicate juncture, but here you are. What should
you do? The neatest, if not easiest alternative, is to
cease and desist. The most dangerous course of action
is a full court press predicated on the thought that
he/she is protesting too much. Once again, life is full
of risks. "The usual risks of the desert [are]:
rattlesnakes, the heat, and lack of water" (Frank
Clancy). The usual risks of pursuing someone who is unwilling
to be pursued is a claim of sexual harassment, a finding
that you engaged in such harassment, and the loss of
your position. Be sensitive to the fact that a relationship
may become non-consensual. Think before you act.
Point
five: While many employers are concerned about "false" claims
of sexual harassment, if they have to make a judgment
call, they generally will err on the side of the "victim."
John
F. Kennedy observed that sometimes life is unfair, and
this is but one example of that view. Frankly, it is
usually much easier for an employer to defend against
a claim that it acted improperly in concluding someone
harassed another than for that employer to demonstrate
that an allegation of sexual harassment was fraudulent
or frivolous. Thus, in close cases, such as those involving
circumstantial evidence favoring the complainant (e.g.,
during the investigation another individual says he/she
was subject to similar harassment as is being claimed),
the tendency is for the claim to be credited. This risk
acts, or should act, as a wet blanket to many otherwise
budding relationships. Of course, one may adhere to another
view: "Life if not for the faint of heart!" The choice
is yours, just factor in the potential consequences in
making your calculus.
Point
six: Those persons who appear most receptive to and
perhaps even demonstrably invite personal relationships,
particularly those expected to be of short duration,
are often the same individuals who are most likely
to file sexual harassment claims.
After
defending against numerous sexual harassment claims,
particularly those that go to litigation, certain patterns
emerge. Unfortunately, we live in a society where children
are too frequently the subject of abuse, including sexual
abuse. The number of sexual harassment claimants who
disclose histories of such abuse exceed the numbers one
would expect if there was no causal connection. That
is not proffered as a defense to unwanted sexual conduct.
In fact, such a history of prior sexual abuse or "misconduct" may
be factually irrelevant and, in any event, inadmissible
in a sexual harassment suit. The simple point is that
if anything, there is a positive correlation between
a person's being extremely overt in his or her sexual
behavior and the potential for that individual to file
a claim when a relationship does not yield the desired
results. Also, anyone who assumes that an act is consensual
if it is procured through another's consuming copious
amounts of alcohol deserves to learn otherwise. Enough
said.
Point
seven: The tendency today is for employers to apply "zero
tolerance" to sexual harassment. Thus, like it or not,
the punishment may not necessarily fit the crime.
Perhaps
because the job of policing the workforce for manifestations
of sexual harassment is not particularly pleasant, and
perhaps also because the potential for large damage awards
is greater in sexual harassment cases than most other
types of employment claims, many employers have either
expressly or implicitly adopted zero tolerance policies.
Pursuant to those policies, an objective bystander might
feel that the punishment meted out in instances of provable
sexual harassment is often draconian when measured against
the nature of the misconduct. On the other hand, from
the employer's perspective, a company would never have
to get to the question of whether the punishment fits
the crime if its employees complied with the workforce
rules governing sexual harassment. In any event, you
have little if any recourse if you believe your employer's
reaction to a few dirty jokes, a couple of love letters
and a few touches here and there warrant your termination.
Point
eight: There is a bottom line to all this.
Camille
Paglia in Sex, Art, and American Culture, opined that "You
have to accept the fact that part of the sizzle of sex
comes from the danger of sex. You can be overpowered." Whether
or not she had in mind the danger of being swept up in
a sexual harassment lawsuit, the point is still valid.
The "danger" of sexual conduct in the workforce is significantly
greater than in years past. That no doubt does increase
the sizzle for those who are avid to take on new risks.
Our docket illustrates that there are enough of them
to keep the courts busy for quite a while. For those,
however, who are not interested in sizzle or are more
interested in retaining their jobs, you had best fix
on Ms. Paglia's admonition and behave accordingly.
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