Yesterday, Jake complimented Sarah on her “sexy” new hairdo. Today he patted Marianne on the shoulder and thanked her for wearing a “revealing” new outfit. As for Deborah, the regional vendor rep: Jake has been pressing her for a date to “get better acquainted.”
Maybe Jake is a top-performing employee, and maybe the women always seem to play along with his chatter. But the fact remains that Jake is a ticking time bomb. His comments are creating a hostile work environment that can affect morale and lead to a costly sexual harassment lawsuit. The recent nationwide headlines about misdeeds in high places should remind everyone that a toxic workplace can threaten the bottom line.
“Ignoring the issue of sexual harassment can lead to disaster on many levels,” said Joseph Harkins, a shareholder in the Washington, D.C. office of San Francisco-based Littler, the world’s largest employment law practice representing management. “Businesses can be subject to costly financial settlements, damaging morale issues and negative publicity.”
Beware the Risk
People often think of sexual harassment in terms of quid pro quo: a supervisor offers someone a job or a raise in return for a sexual act. But in today’s workplace, most sexual harassment stems from a much more insidious problem.
“Statistically, most complaints in recent years are not for quid pro quo harassment but for environment claims such as inappropriate comments and jokes,” Harkins said.
That’s why Jake, in our opening scenario, poses such a threat.
The issue has become more acute as employees have become more willing to speak up about people like Jake.
“We have come to a tipping point in society where people are starting to believe individuals who say they were sexually harassed,” said Valda Ford, CEO of Omaha-based Center for Human Diversity. “And that’s a good thing. Before, it was too often a case of ‘he said, she said.’ But now, people will no longer deal with these indignities.”
The financial cost of sexual harassment lawsuits is top-of-mind for many business owners. And the cash involved can certainly be substantial: While federal law caps compensatory damages at $300,000, most state laws have no such ceiling.
“It is popular for plaintiffs to sue under state law for the unlimited damages,” Harkins said.
And the financial costs don’t end there, he added: “Most statutes include fee shifting provisions, so a prevailing employee’s attorney fees are paid by the employer. It’s not uncommon for attorneys’ fees to come to a quarter of a million dollars, on each side.”
Moreover, transgressors can incur personal responsibility.
“Some state laws extend liability for general sexual harassment to the individual,” said Bob Gregg, co-chair of the employment practice law group at Boardman and Clark LLC in Madison, Wisconsin.
This is especially the case if the harassment involves touching and groping, which can be deemed assault and battery.
“Individuals can also be held liable for defamation if they spread false information, or make mocking comments, about a person’s sexuality,” he said.
Finally, individuals can be held personally liable for sexual harassment against third parties, such as customers, suppliers or public visitors to the workplace.
Don’t think only big employers are at risk.
“Federal anti-discrimination law covers businesses with 15 or more employees,” Harkins said. “And most states have similar laws that cover even smaller ones.”
Beyond financial loss from lawsuits and settlements, an organization with unchecked harassment can suffer a costly loss in staff morale.
“Sexual harassment is a form of bullying,” Ford explained.
And bullying, she said, can take a toll on performance.
“Instead of being productive, a harassed individual becomes constantly afraid of encountering another comment, another inappropriate touch, another arrival of that creeping feeling of ‘here we go again.'”
The harm can affect the employer’s reputation.
“Abused individuals will likely go into a protective stance when asked by a prospective employee about working at the company,” Ford said. “They will try to find some way to alert the person about the abusive environment.”
In contrast, she added, satisfied and secure employees are great recruitment tools.
“There is no marketing better than someone saying, ‘I love where I work,'” Ford said.
How can you protect your business? Gregg said an organization can mount a sexual harassment defense by showing two things: First, that it took reasonable care to prevent and correct harassment; and second, that the plaintiff did not take advantage of corrective opportunities the employer had established.
While those general guidelines are important, Gregg pointed to two exceptions. The first is any quid pro quo act, such as an individual being promoted in exchange for a sexual favor or being terminated for refusing one. The second is any act by a top-level executive.
“If I am a top manager, then my acts are perceived by the courts to be those of the organization itself,” Gregg explained.
This exception is a particular danger to smaller businesses, where just about any manager or supervisor might be perceived as a top-level manager.
With those guidelines in mind, here are some practical steps recommended by attorneys:
- Step 1: Create good policies
“The No. 1 step for protecting your business is to write policies that prohibit sexual harassment and promote a respectful workplace,” Gregg said. “And don’t just bury them somewhere in your employment handbook. Communicate them in employee orientations, and continually emphasize them in staff meetings.”
- Step 2: Establish a reporting procedure
“Designate properly trained individuals to whom complaints can be made,” said James McDonald, Jr., managing partner at the Irvine, California, office of Fisher & Phillips.
He warned against the common mistake of requiring complainants to report incidents to supervisors, who may not have the requisite training or may themselves be offending parties. And bear in mind, many people refrain from reporting incidents out of a fear of retaliation.
So who should play the role of reporting point? Larger organizations may assign properly trained individuals in the human resources department. Smaller ones may contract with an independent HR service firm. But how about the very smallest businesses – those that can’t afford the full-time services of an outside organization?
“Some human resources consultants provide fractional services for smaller clients,” McDonald said. “They might, for a reasonable fee, provide an individual on-site for two days a week and offer availability by telephone hotline on other days. That resource can make all the difference when an incident occurs.”
- Step 3: Train your personnel
The most carefully designed policies will only work if supervisors are trained to identify and respond appropriately to incidents of sexual harassment.
“We all have to be educated,” Ford said. “Plenty of people make mistakes from simple ignorance. They just do not know what they are doing.”
All levels of personnel need training on company policies and on the established channels for reporting incidents. And everyone needs to understand they are expected and encouraged to come forward with complaints.
“Plenty of people encounter sexual harassment but hesitate to take action,” Ford said. “That’s because they have always lived in an environment where saying something about the problem makes you a coward or not able to keep a stiff upper lip.”
- Step 4: Respond quickly to complaints
Take prompt action when individuals report harassment.
“One of the biggest errors employers make is not listening when people raise issues,” Gregg said. “Employers often don’t take reports seriously.”
Your business benefits when quick responses to complaints help establish credibility in your prevention program.
“People are more prone to utilize internal resources to resolve problems if their employer has a record of prompt and effective action when harassment is reported,” McDonald said. “On the other hand, if an employer has not taken sexual harassment reports seriously, people are more likely to use outside attorneys to sue when harassment occurs.”
Involve the Complainant
Investigate each complaint thoroughly, interviewing any third-party witnesses. And find out what corrective action the complainant deems appropriate.
“While you don’t want the complainant to decide what action is taken, you do want to get that person’s input on whether termination or a lesser remedial measure is appropriate,” Harkins said.
Complainants may have any number of reactions to what they have experienced.
“Sometimes, they say the harassment was not severe but they reported it because they just wanted the organization to know about it,” Harkins said. “Sometimes, they just want to have a discussion or just have the person counseled. And still other times, they ask that a person be terminated for making a single, unfunny joke.”
If the remedial action does not satisfy the complainant, Harkins suggested involving the person in any new training that the company will be introducing to the workplace. That can help to provide a broader base of knowledge so that focus is taken off the individual and put onto an overall improvement in the environment.
Communicate your seriousness about the issue by actively monitoring your workplace for violations.
“Don’t just wait for complaints to be filed,” Gregg said. “Be proactive.”
Make sure all supervisors realize they have a duty to take action when a questionable event occurs.
Such monitoring should include behavior that might not yet be illegal but that has the potential to escalate, Gregg said.
“When a person is nasty, surly and engaged in behavior that is disruptive and abusive, speak up and say you expect the individual to be civil,” he said.
Indeed, attorneys recommend being alert to any activity that reflects disrespect for others or creates a hostile working environment. That includes making crude comments or reinforcing gender stereotypes.
A proactive stance may require a change in basic mindset.
“Most supervisors are reactionary,” Ford said. “They are not accustomed to working on creating an environment where if something inappropriate is said, there is an opportunity to discuss what happened, why it is inappropriate and then move on to improving behaviors.”
“Things get worse because management has issued an unspoken ‘OK’ to bad behavior,” Ford said.
Beware of Fraternization
Supervisors need to understand the risks involved in blurring the line between business and personal relationships.
“Managers and supervisors can have friendly relationships with subordinates, but they should not be friends with subordinates,” McDonald said.
Failure to maintain professional distance, he said, can lead to situations that may not appear initially as harassment but could result in such charges down the road.
What are some signs of danger?
“The subordinate may start to feel he or she can take liberties such as texting the manager after business hours about personal problems,” McDonald said. “Or the subordinate may ask for advice on relationships or financial issues, ask to borrow money or invite the supervisor to a social outing with a friend. These kinds of liberties can create situations that backfire on the manager.”
Backing off in such instances is a wise idea. And so is a reluctance to go one step further and engage in a dating relationship with a subordinate. (For more on this topic, see the section at the bottom of this article, “Workplace Dating: Yes or No?”)
While a conscientious employer can go a long way toward creating a respectful workplace, it’s easy to let the ball drop in the rush of daily business.
“Employers tend to make several common errors,” Harkins said. “One is not repeating training frequently enough. Sometimes they will do a large training session and then ignore the issue for five or ten years.”
A second mistake is not escalating complaints high enough in the chain of command.
“Higher level people, including those in human resources or in the legal department for those businesses which have them, should review every reported incident,” he said.
Smaller organizations should have top executives handle the complaints.
A third mistake is giving a harasser too many chances.
“Sometimes a second chance is in order,” Harkins said. “Perhaps an ordinarily well-behaved person commits an aberrational infraction, or there are some questions about proof.”
Other times, a complainant will ask that a person not be fired for a single infraction.
“In such cases, an employer might take other remedial action,” Harkins said. “But if there is a second incident of harassment, the employer should move to termination.”
While every business wants to avoid the financial penalties resulting from sexual harassment, there’s more at stake than simply avoiding costly lawsuits.
“People are often concerned about the legal liabilities for sexual harassment, and that aspect of the problem has certainly been making the headlines recently,” Gregg said. “But legal liability should not be what drives the topic. It should be the realization that a respectful workplace leads to higher profitability.”
Employees are more productive when they are not sidetracked by the need to protect themselves from sexual advances, Gregg said.
“Create a respectful workplace not because the law makes you do it, but because it’s to the benefit of your organization and your employees,” Gregg said.
Workplace Dating: Yes or No?
Dating between supervisors and subordinates is a fact of life in many workplaces. What seems like a harmless relationship on the surface, however, can lead to disaster.
Bad things can happen when a workplace romance comes to an end.
“If a manager breaks off a relationship, the subordinate may start to view it as non-consensual from the beginning,” said James McDonald, Jr., managing partner at the Irvine, California, office of Fisher & Phillips. “And if a subordinate breaks it off, any later enforcement of an organization’s usual rules and standards may be interpreted as a form of retaliation.”
Either situation can spark a sexual harassment lawsuit. To lessen the danger, attorneys advise employers to draw up clearly defined fraternization policies.
“Organizations are free to establish any policies they want regarding workplace dating,” said Bob Gregg, co-chair of the employment practice law group at Boardman and Clark LLC in Madison, Wisconsin. “Some employers state that no one may date any co-worker or any supervised employee. Others allow consensual relations, but require the parties to notify management, which can then assess any conflicts of interest.”
While blanket prohibitions obviate immediate dangers, they can also lead to secret romances with unreported conflicts of interest. And still more serious ramifications may occur later if the relationship turns nonconsensual and a state of undetected long-term sexual harassment finally comes to the surface.
“I personally do not like the ‘no one will establish a relationship with anyone here’ policy,” Gregg said. “It’s hard to enforce, and people think it’s draconian.”
So what’s a better idea? Gregg sometimes suggests a policy like this: “No one will use the workplace to make romantic advances, or to be overtly demonstrative. If you have a relationship with someone you supervise, or otherwise might have some impact on your work, we need to know promptly.”
To eliminate conflict of interest or favoritism, some individuals involved in romantic relationships may need to be transferred. That can be difficult at smaller organization with a limited number of unrelated departments.
“Smaller organizations have more issues resulting from romantic involvements,” Gregg said.
McDonald sometimes recommends employers go still further by requiring that involved parties sign a document formally agreeing to the following terms: 1) They acknowledge the relationship is consensual. 2) They agree to avoid a conflict of interest or the appearance of one. 3) They agree to not carry on the relationship in the workplace. 4) They acknowledge that the company has a policy against sexual harassment. 5) They understand the company procedures for reporting incidents of sexual harassment. 6) They agree to report any change in the relationship to a non-consensual status.
“I have never had anyone sign one of those agreements and then turn around and try to sue,” McDonald said.
No matter what policy your organization adopts, individuals in supervisory positions may want to think twice about engaging in workplace romances with subordinates.
“I can think of no faster way to end a manager’s career than to engage in a dating relationship with a subordinate that ends badly,” McDonald said. “A lot of managers have felt they could handle it, when in fact they couldn’t.”