When the U.S. Supreme Court’s gavel pounded a year ago, the message resonated throughout companies across America: Employers as well as individuals will be held accountable for incidents of sexual harassment in the workplace.
Two June 26, 1998, Supreme Court rulings–Burlington Industries Inc. vs. Ellerth, and Faragher vs. the City of Boca Raton–were landmark cases, establishing that an employer is liable for a sexually hostile environment, even if it knew nothing of the particular illicit behavior.
But the court added that companies could avoid liability by establishing workable procedures for dealing with sexual harassment. And on June 21 of this year, the U.S. Equal Employment Opportunity Commission issued new workplace harassment guidelines to help companies comply with the court ruling.
How do you know your employer is heeding the Supreme Court’s warning and taking sexual harassment seriously? The EEOC says these are the key points to look for:
– Distribution to all employees and enforcement of a written anti-harassment policy;
– Detailing, in writing, the procedure for employees to make a formal complaint, without fear of retaliation;
– Including the policy in the company handbook and permanently posting it on bulletin boards; and
– Training all employees on the types of conduct that violate sexual harassment policies.
“If a company doesn’t have a decent policy in place or has no impartial investigation procedure, nothing will make this problem go away,” says Ellen J. Vargyas, legal counsel for the EEOC in Washington, D.C. “The shift in where the law is going now is helping make a lot of progress. The court was trying to create a structure of responsibility on both sides, so we could get to the bottom line: less harassment in the workplace.”
Explains Ellen McLaughlin, partner and chair of the labor and employment practice group representing employers at Seyfarth, Shaw, Fairweather and Geraldson in Chicago: “Since the Supreme Court ruling, many companies have refined their policies and have renewed their focus on training managers and non-managers to let them know what conduct is inappropriate in the workplace,”
The EEOC’s recommended steps, though not law, would help employers prove that they took reasonable and necessary steps to prevent and discourage sexual harassment in the workplace. On the flip side, an employee is responsible for reporting the alleged harassment through internal reporting procedures. If the employee does not follow procedures–except based on fear of retaliation from the company–the employer might not be held liable for workplace harassment.
Employees can judge how their organization treats sexual harassment in several ways:
– Has a complaint against a supervisor been ignored by senior management?
– Did the company not effectively implement its written procedures in the past and was it found liable in court?
– Observe how others were treated when filed a complaint: Were they taken seriously? Was justice swift?
While it’s difficult to document how many sexual harassment incidents occur in the workplace every year–many nationally known companies prefer to settle out of court when an executive is guilty of misconduct–experts agree that sexual harassment more often occurs today in smaller offices.
Workplaces with a small number of people aren’t expected to have written harassment policies, but must, according to the EEOC guidelines, at least orally communicate the policies and grievance procedures.
“Small offices are often more informal and usually don’t have a human resource infrastructure,” explains Carl Robinson, managing partner of Organizational Psychologists, a Chicago-based consulting firm specializing in human resources management. “But in a large or small organization, when a company is not acting professionally, it creates a climate where individuals use bad judgment and gives them a sense they have permission to be loose.”
All employers must conduct an impartial investigation of every complaint and take swift and appropriate action if a harasser is found guilty. The EEOC and legal experts recognize, however, that even the most well-written and fully communicated policies won’t always stop a boss from sexually harassing underlings. That’s why victims who report harassment via internal reporting procedures must watch out for their future.
“When you complain, you’re crossing over that line, and there’s the potential of retaliation,” says Patricia Motto of Chicago-based law firm Patricia Motto and Associates, which specializes in employment law.
Because companies tend to have powerful legal forces behind them, Motto and Martin Dolan, of Dolan and Shannon P.C., advise employees to file the complaint with the knowledge of an outside ally, who can help explain and protect your rights. Retaliation by unprofessional companies could include firing, negative references, demotions, altering your personnel file and physical threats.
Begin, they say, by documenting your complaint to the company in a formal memo, reporting all facts and fears and identifying witnesses, if any.
“(Companies) can’t keep your name anonymous,” says Motto. “No matter how it gets resolved, when Jane complains about Jim, it will get out. Then, there will be people in the Jane camp and people in the Jim camp. Even though Jim is gone, Jim’s friends will still be there.”
For large and small companies, an internal company investigation involves fact gathering from the accuser, the accused and witnesses, says McLaughlin, the attorney who represents employers. Companies also investigate external circumstances that may have influenced the complaint: Is the accuser about to be terminated? Did he or she just receive a bad performance review? When the investigation determines harassment took place penalties range from firing to suspension to sensitivity training.
If a victim feels the correct action wasn’t taken or the investigation was unfair, experts advise seeking legal or government help immediately.
“Most companies try very hard to do a thorough investigation and get to the bottom of it ,” McLaughlin says. “We want to encourage (people to file complaints) internally. Companies would rather deal with any inappropriate behavior internally themselves than to see it go to the government.”
But lawyers defending sexually harassed victims don’t agree.
“Keeping information internal–sweeping it under the rug–only puts a Band-Aid on the problem,” Dolan says. “The potential harassers need to see the effects of the crime. Those who were too scared to come forward (to the company) know that the only way the harassment is going to stop is to use the law.”
Where to turn
U.S. Equal Employment Opportunity Commission, 312-353-2713, www.eeoc.gov.
Illinois Department of Human Rights, 312-814-6200, www.state.il.us/dhr.
Legal Assistance Foundation of Chicago, 312-341-1070.
Chicago Bar Association’s Lawyer Referral Service, 312-554-2001, www.chicagobar.org.
