United States: Avoiding Sexual Harassment Claims

Countless American companies have already faced claims of sexual harassment; countless others will face such claims in the near future. As the agencies who receive and investigate these charges have recently reported, claims of sexual harassment have increased dramatically and make up, in some jurisdictions, the biggest portion of new case filings. Such claims are often expensive to resolve and, while pending, can have a debilitating affect on company management and work relationships. Sometimes the negative effects on the workplace far outlast the dispute itself, and the cost of litigation may prove to be modest compared to the business costs of a real harassment problem. When harassment occurs in the workplace, employee morale and productivity will certainly diminish, managers will be distracted from dollar-producing functions, and in severe situations, company performance and profitability may decline.

High technology companies are no exception to this trend. Long hours, frequent business travel and pressure-cooker working conditions combine to create an environment in which companies must be eternally vigilant in order to avoid the business and legal consequences of sexual harassment claims. Not surprisingly, wise and responsible employers are taking precautionary measures.

The first step in an effective plan of prevention is to understand what constitutes sexual harassment and the scope of the employer's responsibility to prevent it. The following commonly asked questions, and their answers, are illustrative:

Does sexual harassment occur only when the victim has experienced unwanted physical contact or sexual advances? No. The United States Supreme Court and the Equal Employment Opportunity Commission have recognized that sexual harassment occurs in two ways: "harassment that involves the conditioning of concrete employment benefits on sexual favors, and harassment that, while not affecting economic benefits, creates a hostile or offensive working environment." Accordingly, even where there is no claim or evidence of "quid pro quo" harassment or unwanted touching, an employee can nonetheless prove harassment.

Is all conduct of a sexual nature in the workplace unlawful? No. The touchstone of whether harassment has occurred is whether the challenged conduct is unwelcome. In a hostile environment type claim, this means that the victim must demonstrate that a reasonable person would find the working environment hostile and abusive, and also that the victim perceived the environment as hostile. Examples of conduct that a reasonable person might find hostile or abusive include:

• repeated offensive sexual flirtations, advances, or propositions;
• continued or repeated verbal abuse or innuendo of a sexual nature;
• uninvited physical contact such as touching, hugging, patting or pinching;
• comments of a sexual nature about an individual's body;
• display of sexually suggestive objects or pictures;
• jokes or remarks of a sexual nature in front of people who find them offensive;
• prolonged staring or leering at a person;
• making obscene gestures or suggestive or insulting sounds.

The courts have stated that an isolated comment will not constitute harassment: "mere utterance of an . . . epithet that engenders offensive feelings in an employee" is not unlawful. Rather, the totality of the circumstances must be considered, including the frequency and severity of the offending conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee's performance.

An employee who claims to be a victim of harassment must also demonstrate that she or he was in fact offended. An employee can readily meet this requirement where the offending conduct has affected the employee's psychological well-being in a demonstrable way. But even when the employee has suffered no serious psychological injury, the employee may still show that the complained of conduct was offensive. If, however, the employee contributed by her or his speech or actions to a sexually charged atmosphere, the employee may be unable to show that she or he was in fact offended.

If the purported victim never complained to her supervisor or other members of management, can the employee maintain a claim of harassment? Yes. Current law does not require that a victim of sexual harassment first make an internal complaint before filing a claim. Where, however, the employer has promulgated an effective complaint procedure that encourages victims to come forward, the employee's failure to complain may seriously undercut the employee's efforts to show that the employee was actually offended. Of course, if the employer has no complaint procedure, the lack of complaint will have little impact on the employee's case. Similarly, the lack of complaint is likely to have little impact if the employer creates a procedure that turns out to require reporting to the person who may be doing the harassing.

Is the employer liable for the harassment by its supervisors even though the employer did not know that harassing conduct was occurring? In most circumstances, yes. Under federal law, an employer is automatically liable for the a supervisor's conditioning benefits upon sexual favors, and depending on the situation, an employer may be automatically liable for the hostile environment created by its supervisors. Under Massachusetts law, the impact on an employer is more severe: regardless of what it knew or should have reasonably known, an employer is liable in all circumstances for the acts committed by those on whom the employer confers authority.

In addition to developing an understanding about the nature of the problem, an employer intent on creating an effective plan to prevent harassment should do the following:

1. Formulate and distribute to all employees, at least annually, a sexual harassment policy, that includes the following:

• a clear statement of the employer's commitment to a workplace free of unlawful discrimination and harassment;
• a description of the type of conduct that constitutes harassment;
• a procedure for making complaints to designated persons in the organization;
• a procedure for investigating complaints of alleged harassment;
• an express guarantee that anyone who files a complaint will not be subjected to retaliation regardless of the outcome of the complaint; and
• a statement that anyone found guilty of harassment after investigation will be subject to discipline, which may include discharge where appropriate.

2. Make certain that all supervisors and managers understand what constitutes acceptable and unacceptable behavior; and

3. Carefully follow any policy that you promulgate.

Precautionary measures can not, of course, prevent all claims or lawsuits from being filed. They may, however, reduce possible filings and enhance the likelihood of litigation success. More importantly, they are certain to help create a more productive and focused work environment where employees are comfortable and secure.