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 claims. 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. But, 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 workplace harassment, surveys demonstrate that many businesses operating in the United States have yet to address the problem. Although businesses know sexual harassment 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 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.” 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.
Educate. 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.
Third, companies need to provide all employees with examples of behavior that they consider inappropriate.
Report. Provide a reporting system, make all employees aware of that system and 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.
Plan. Companies should have investigative procedures in place. Once a company has received a complaint, 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.