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- @128 CHAP 5
-
- ┌───────────────────────────────────────────────┐
- │ SEXUAL HARASSMENT IN THE WORKPLACE │
- └───────────────────────────────────────────────┘
-
- The Clarence Thomas-Anita Hill drama. which replaced
- afternoon soap operas and kept millions of glassy-eyed
- Americans glued to the small, glowing boxes in their
- living rooms for several days in the fall of 1991, has
- brought the issue of sexual harassment to a new and
- heightened level of awareness among the public. While
- sexual harassment as such is not mentioned anywhere in
- Title VII of the federal Civil Rights Act, the Equal
- Employment Opportunity Commission (EEOC) and the courts
- have long accepted such harassment as being illegal and
- discriminatory. In addition, many states have adopted
- specific laws banning sexual harassment.
-
- Because of the recent upsurge in litigation involving
- sexual harassment claims, it behooves you to take a fresh
- look at your firm's policies regarding this subject.
-
- Employers need to be keenly aware of their potential
- liability for sexual harassment in the workplace, another
- increasingly significant area of the anti-discrimination
- laws, under Title VII of the Civil Rights Act. While, as
- noted, the federal Civil Rights Act does not specifically
- refer to sexual harassment as a form of discrimination,
- the courts and the EEOC have long defined it as such.
- Under the body of law that has been built up, there are
- two types of sexual harassment under Title VII, as it has
- been interpreted over the years:
-
- . One is sexual harassment of the type where "tangible
- job benefits" are granted or withheld based on an
- employee's receptiveness to unwelcome requests or
- conduct:
-
- ┌───────────────────────────────────────────────┐
- │ EXAMPLE: A male supervisor tells a female │
- │ employee to meet him at the swimming pool on │
- │ his sumptuous estate on a Saturday afternoon │
- │ to discuss a business contract. She refuses │
- │ to meet him at his place, and later receives │
- │ a bad rating from him for "bad attitude and │
- │ unwillingness to work weekends," which costs │
- │ her a raise or promotion. The female employee│
- │ in such a case has been denied a "tangible job│
- │ benefit" due to sexual harassment most likely.│
- └───────────────────────────────────────────────┘
-
- . The other type is sexual harassment involving a
- hostile work environment; that is, a situation in
- which the work environment is oppressive and is
- hostile to members of one sex, where such conditions
- either unreasonably interfere with the individual's
- work performance or create an intimidating, hostile,
- or offensive environment. This type of harassment may
- not have any economic effects on the complainant, and
- management or supervisory personnel may not be involved.
- Even so, the employer who allows such a condition to
- persist may still be liable if management was aware of
- the harassment by co-workers (or even by customers)
- and fails to take appropriate actions to remedy the
- situation.
-
- ┌───────────────────────────────────────────────┐
- │ WHAT TO DO? Merely having a firm policy that │
- │ prohibits sexual harassment at your company │
- │ will not automatically stop such activity or │
- │ protect the firm from liability if harassment │
- │ occurs, but the absence of such a policy makes│
- │ such conduct somewhat more likely to occur and│
- │ will also tend to strengthen an employee's │
- │ claim against you if your firm is sued for │
- │ allowing such acts to occur. │
- │ │
- │ SUGGESTED APPROACH: Adopt a sexual harassment│
- │ policy that not only prohibits such conduct, │
- │ but which also sets up a grievance mechanism │
- │ for employees who are victims of any such │
- │ harassment and communicate this company policy│
- │ strongly and clearly to your employees. │
- └───────────────────────────────────────────────┘
-
- Note that, in addition to federal civil rights case law, the
- statutes of many states, or the regulations of many state
- civil rights commissions, now specifically prohibit sexual
- harassment in the workplace, and some of these laws go well
- beyond the protections afforded under federal law.
-
- @CODE: CA
- Also, the California Government Code (Section 12940(h))
- expressly prohibits sexual harassment by employers and by
- others where the employer knows of the situation and fails
- to take immediate and appropriate action to correct it.
- Employers must take all reasonable steps to prevent sexual
- harassment from incurring, including verbal, visual and
- physical harassment, as well as unwanted sexual advances.
- @IF000CA]While you have no employees now, you will need to be highly
- @IF000CA]cognizant of these requirements, as a California employer,
- @IF000CA]if you do hire employees in the future for your business,
- @IF000CA]@NAME.
- @IF204CA]Since you have @EMP employees, these requirements are fully
- @IF204CA]applicable to @NAME.
- @IF204CA]
- @IF204CA]Be aware that, under California law, you can not only be sued
- @IF204CA]by the party who claims to have been harassed, but if one
- @IF204CA]employee sues another for sexual harassment, the employee who
- @IF204CA]is the target of the suit may also sue you for indemnification
- @IF204CA]of his or her costs in defending the suit, on the basis that
- @IF204CA]the lawsuit arose out of performance of duties as an employee.
- @IF204CA]Thus, even if the harassment claim is groundless, and gets
- @IF204CA]nowhere, you, as the employer, may still be left holding the
- @IF204CA]bag, when the accused employee sues you for indemnification
- @IF204CA]for his or her costs of defending the legal action. In short,
- @IF204CA]heads you lose, tails you lose, as employer, when any sexual
- @IF204CA]harassment claim arises at your workplace. The only cure is
- @IF204CA]prevention.
-
- @CODE:OF
- @CODE: HI
- Also, the Hawaii State Civil Rights Commission interprets
- Hawaii's fair employment law to prohibit sexual harassment
- on the same basis as the EEOC rules. (Hawaii AR Sec.
- 12-23-59(a)-(f).)
-
- @CODE:OF
- @CODE: NM
- Also, the New Mexico Human Rights Commission considers
- sexual harassment to constitute sexual discrimination
- under the New Mexico Human Rights Act. Harassment includes
- unwanted or repeated physical or verbal action to pressure
- an individual for sexual activity, including sexual advances,
- contact, verbal or nonverbal suggestions, innuendos or
- ridicule. (NM RR Sec. I.A.27 a.1.)
-
- @CODE:OF
-