Avoid a Time Bomb: Sexual Harassment
by Judith Lindenberger

Published in The Professional Woman’s Magazine Summer 2004, HR.com June 13, and HR Fact Finder August 2005

Over 53 charges of sexual harassment are filed with the Equal Employment Opportunity Commission every business day.

What have you done to prevent sexual harassment in your workplace?

During the Clarence Thomas Supreme Court confirmation hearings in 1991, sexual harassment was brought to the forefront when Thomas was accused of harassing an employee, Anita Hill. This was a wake-up call for companies.

Recently, news about the recruiting practices of some college athletic departments around the country has made front page headlines.

Sexual harassment is unwanted sexual or gender based behavior that occurs when one person has formal or informal power over the other.

Federal law recognizes two different sets of legal grounds for claiming sexual harassment. The first is quid pro quo. Under the quid pro quo form of harassment, a person in authority, usually a supervisor, demands sexual favors of a subordinate as a condition of getting or keeping a job.

Frequently, a quid pro quo situation does not exist. Many sexual harassment victims are never threatened with termination or lack of advancement. Rather, they suffer from a hostile work environment, which is the second ground for bringing a sexual harassment action. A hostile work environment occurs when unwelcome and inappropriate sexually based behavior renders the workplace atmosphere intimidating, hostile or offensive.

Despite widespread publicity about the perils of sexual harassment, surveys demonstrate that many businesses operating in the United States have yet to address the problem. Moreover, recent news reports indicate that sexual harassment has reached the highest levels of management. Although businesses know it exists, they appear unsure about what to do about it.

This may prove costly because these risks have substantially increased in recent years. In 1991, Congress amended Title VII to permit victims of sexual harassment to recover damages (including punitive damages) under federal law. In 1993, the Supreme Court broadened the reach of this law by making it easier to prove injury.

According to the U.S. Equal Employment Opportunity Commission (EEOC), in the past 10 years, the average jury verdict in a case of sexual harassment was $250,000, not including legal fees, court costs and punitive damages, making it the most expensive harassment complaint.

Failure to adopt a proactive and aggressive stance on the issues of sexual harassment in the workplace, however, can result not only in costly lawsuits, but also in loss of employee morale, decline in productivity, and an erosion of a company’s public image.

Companies that want to manage their risk prudently must act before a problem occurs. The EEOC encourages employers to “take all steps necessary to prevent sexual harassment from occurring.”

Two U.S. Supreme Court cases helped better define a company's responsibility regarding charges of sexual harassment. The two cases – Faragher vs. City of Boca Raton and Burlington Industries vs. Ellerth – gave birth to the Affirmative Defense Strategy. The Affirmative Defense Strategy is recognized in the courts as a way for companies to reduce their liability if they follow the training guidelines established by the EEOC.

The EEOC established a set of guidelines defining three primary elements a company must implement to demonstrate its commitment to providing employees with a safe work environment free of harassment.

1. Educate employees.
   
   To educate employees, companies need to explain what harassing behavior is and that it's not tolerated. First, companies need a comprehensive, detailed written policy on sexual harassment and should distribute it widely. Second, companies need to train supervisors to deal with sexual harassment and provide all employees with examples of behavior that they consider inappropriate.

2. Provide a reporting system and make all employees aware of that system.
   
   In order to provide an effective reporting system, make sure everyone knows who they can go to if they feel they're being harassed. An effective grievance procedure should also provide the complainant with alternative routes for reporting harassment.

3. Plan for action.
   
   Companies should have investigative procedures in place and look into the claim quickly. Once a company has received notice of sexual harassment, its liability may be reduced or eliminated depending on how promptly or effectively it responds. Prompt means precisely that under no circumstances should a company delay an investigation of sexual harassment more than a few days. Notably egregious sexual misconduct should be handled immediately.

Sexual harassment in the workplace presents an ongoing and growing risk to businesses operating in the United States. From a purely business perspective, a company only stands to gain if it acts proactively. Not only is it the right thing to do, it is the smart thing to do.

Judith Lindenberger is the Principal of The Lindenberger Group, a human resources consulting and employee training company located in Titusville, New Jersey. Since the 1980s, Ms. Lindenberger designed and conducted sexual harassment training for thousands of people. Recently, The Lindenberger Group launched a reasonably-priced, easy-to-implement Affirmative Defense Strategy that may reduce an organization’s exposure to liability with regard to sexual harassment. It includes web-based training for employees and managers, policies, tracking and a toll-free reporting hotline. To learn more, contact The Lindenberger Group at (609) 730-1049, info@lindenbergergroup.com or www.lindenbergergroup.com.

Copyright © 2006 by The Lindenberger Group, LLC. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.

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