Handling Sexual Harassment In The Workplace

Handling Sexual Harassment

Handling Sexual Harassment in the Workplace Steve Sung MBA 675 The Legal Environment of Business Professor Kevin Sawatsky September 15, 2008

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Abstract Sexual harassment is a common and harmful misconduct in the workplace. Potential solutions lie in two areas: prevention and correction. The most common forms of prevention include adopting sexual harassment policies, providing training and establishing formal complaint processes. While prevention is the most effective way to handle sexual harassment, proper correction can reduce damage to the minimum if an actual incident does occur. When a complaint for sexual harassment is reported, the incident should be promptly investigated and the harasser should be reasonably disciplined and advised not to show retaliation. Providing counselling is helpful to eliminating similar incidents in the future, and purchasing insurance adds another layer of protection to the organization.

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Handling Sexual Harassment in the Workplace Background Sexual harassment is one of the most common workplace misconducts. It is also among the most offensive and demeaning torments an employee can undergo (Englander, 1992; Ford & McLaughlin, 1988). In 1994, Statistics Canada published a report that states over 2 million Canadian women had experienced sexual harassment in the workplace (Johnson, 1994), and in 2007, the U.S. Equal Employment Opportunity Commission (EEOC) received over 12,000 charges of sexual harassment (Sexual harassment. 2008). Sexual harassment is so prevalent that, some estimates suggest that as many as one of every two women will experience this type of misconduct at some point during their working lives (Fitzgerald & Ormerod, 1993). Among the victims of sexual harassment, it is not uncommon to find men. In fact, among the charges that EEOC received in 2007, 16 percent were filed by males. Sexual harassment is prevalent in both public and private sectors, and is worse in smaller firms (Fitzgerald, Drasgow, Hulin, Gelfand, & Magley, 1997; Poe & Courter, 1998). The impact of sexual harassment in the workplace cannot be overlooked. Sexual harassment causes damages to both the victim and the workplace itself. Among the women who have been sexually harassed, 63 percent of them reported adverse physical symptoms and 94 percent experienced emotional distress (Crull, 1982). Symptoms that victims experience include decreased job satisfaction, lowered organizational commitment, ill physical and mental health, and even signs of post-traumatic stress disorder (Willness, Steel, & Lee, 2007). The presence of sexual harassment in the workplace makes it difficult for employees to focus on their work, and indirectly impacts their work performance, such as increased absenteeism and turnover rate, and decreased morale (Fitzgerald et al., 1997; Schneider, Swan, & Fitzgerald, 1997). Some estimated that it cost an organization on average of $22,500 per person affected in terms of productivity alone and up to multimillion dollars of total damage (Willness et al., 2007; Winkelmann, 2005).

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Aside from protecting employees' well-being, an organization should effectively handle sexual harassment for two other reasons. First, sexual harassment is a highly repeated behaviour. Most victims of the harassment are subjected to extended patterns of offensive behaviour rather than isolated incidents (Schneider et al., 1997). In 75 percent of all cases, the offence will continue to escalate if it is ignored (Responding to sexual harassment in the workplace. 1993). Second, an employer who knew or should have known about the conduct underlying the hostile work environment but did nothing to prevent it, correct it or acted too slowly faces liability risk (Sexual harassment. 2008). In the case Meritor Savings Bank v. Vinson (1986), the employer was held liable for not responding to the misconduct, but in Minix v. Jeld-Wen, Inc. (2007), the employer was not held liable because a sexual harassment policy was in place. Sexual harassment occupies the largest portion of all the potential claims brought under an employment-practices liability policy or endorsement (Truesdell, 2007). It is also a widely researched topic. This paper will share the best practices to handle sexual harassment in the workplace suggested by experts and scholars, but first, challenges in dealing with sexual harassment will be briefly mentioned. Challenges One of the major challenges that organizations face is employees' hesitancy in reporting sexual harassment incidents. Several studies have shown that the estimated report rate is as low as 20 percent (Peirce, Rosen, & Hiller, 1997; Ware & McClellan, 2005). Some victims also have the tendency to report passively (Bowes-Sperry & O'Leary-Kelly, 2005). There are two major reasons that contribute to this phenomenon. The first reason is victims worry about their career and personal risks associated with reporting the incidents, and the second one is related to company policies, which includes skepticism that complaints would be taken seriously and harassers would be punished; employees may also question the fairness and length of investigation. In some cases, the victims simply were not aware of

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the existence of corporate policies on sexual harassment or were discouraged by the nature of the policies (Peirce et al., 1997). It is important to overcome these challenges in order to effectively handle sexual harassment in the workplace. Potential solutions lie in two areas: prevention and correction (Winkelmann, 2005). Prevention Prevention is the most effective way to handle sexual harassment in the workplace (Sexual harassment. 2008). One article even uses the phrase “the best defense is no offense” to describe the effectiveness of prevention (Winkelmann, 2005). The most common forms of prevention to sexual harassment are adopting sexual harassment policies, providing appropriate training sessions and establishing formal complaint processes. Sexual Harassment Policy Sexual harassment policy not only prevents the occurrence of sexual harassment incidents, but also protects an organization from being liable to damages caused by these incidents. A sexual harassment policy should be written in clear and simple English, and specifically tailored to that company's particular business and employment circumstances (Haggard & Alexander Jr., 1994). A well-written policy against sexual harassment should contain: definition of sexual harassment; clear prohibition; investigation procedure; information on making an internal complaint; a non-retaliation statement; and possible disciplines (Haggard & Alexander Jr., 1994; Peirce et al., 1997; Raphan & Heerman, 1997). Other provisions may be useful include: confidentiality; special duties of managerial personnel; and harassment conducted by non-employees such as clients or contractors. A well-written policy is useless unless it is enforced and committed throughout the workplace. This can be achieved by several ways. Including the policy in the employee manual and continuously posting it around the workplace help both new and old employees become aware of its presence (Haggard & Alexander Jr., 1994; Truesdell, 2007). It may also be helpful to attract employees’ attention

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by periodically changing the layout and color of the poster. Another way to put the policy in use is by requiring employees to sign forms acknowledging their awareness of the company's tolerance and methods of dealing with sexual harassment (Hamer & Petrides, 2004). Finally, if an organization already has a sexual harassment policy implemented and adopted, a recommendation is to audit and revise it once in a while (Peirce et al., 1997). Training An organization can also facilitate prevention of sexual harassment by sponsoring trainings (Bordeaux, 2002; Raphan & Heerman, 1997). These trainings can be used to educate employees about dealing with sexual harassment and its consequences. Training as such can take place in the classroom or on the Internet, and employees should be re-enrolled into these sessions periodically to refresh their memory. The employer needs to be aware of the appropriateness of these trainings. For example, in a company's training session, a hostile working environment was simulated by asking male employees to slap on female employees' buttocks. One male employee later sued his company for sexual harassment by forcing him to participate in this activity. It was difficult for the employer to prove that the plaintiff had not experienced harassment by participating in this training session, and the court ruled that the employer created a hostile working environment by simulating one (Raphan & Heerman, 1997). Channel for Complaints Establishing a formal channel for reporting sexual harassment would encourage employees to report sexual harassment incidents and discourage the misconduct. Features of a sound complaint channel include top management support for enforcing sexual harassment policies and commitment by the corporation to privacy and anonymity, and implementation of fair and supportive investigative processes (Peirce et al., 1997). Employers should have several people within the organization to whom the employees can report the misconduct to. It is recommended to designate these people from the Human Resource department with at least one person per gender (Haggard & Alexander Jr., 1994). One

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advantage of having more than one person to handle the reporting is to avoid situations where the person to whom the employee is supposed to report to is also the harasser. It is also helpful to have multiple avenues for complaints, both informal and formal, and mediation approaches should be in place as well (Zippel, 2003). Correction An employer should take all the necessary steps to prevent sexual harassment in the workplace. Although this seems to require a lot of work as mentioned in the previous section, dealing with an actual incident requires even more resource and energy, not to mention the unpleasantness suffered throughout the process and possible damages. When sexual harassment does occur, the first priority is to get the harassment stopped; second, the victim must be made whole; third, harasser must be disciplined (Peirce et al., 1997). It is important to follow the procedure outlined in the policy. This section lists some tips for organizations to appropriately correct a situation caused by sexual harassment. Investigation When a complaint for sexual harassment is reported, the investigation should begin as quickly as possible. The investigation process needs to be prompt and thorough, and it may assist the process by temporarily transfer the harasser, victim or witness to another department or shift (Haggard & Alexander Jr., 1994). If the harassment is of a relatively minor nature, the investigator may resolve the issue informally; however, if the employee has a serious complaint or is determined to file one, the investigator must have the employee put the complaint in writing (Haggard & Alexander Jr., 1994). During investigation, the investigator might also want to examine the complainant's motive as well as the allegation (How to investigate (and help prevent) sexual harassment. 2002). The employer may be held liable if an investigation for sexual harassment complaint was not dealt adequately. In the case Coyne v. Home Office (2000), the judge stated that there was no material difference between the failure

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to prevent harassment and the failure to deal with a complaint of harassment properly. Discipline Establishing disciplinary actions to the harasser is necessary to stop the misconduct and prevent future incidents in the workplace. The EEOC views discipline in terms of proportional punishment; for example, a person making a few off-color remarks but having no prior record could be verbally reprimanded or warned, but severe or persistent behaviour should probably be dealt with by suspension or even termination of employment (Sexual harassment. 2008). Discipline the harassers may be graduated based on the harasser's history and the level of severity of the harassment, but all forms of reprimands should be documented. Deciding the degree of discipline can be critical. In Minnich v. Cooper Farms Inc. (2002), although the employer had responded to an employee's misconduct by investigating the incident and disciplining the harasser, the court still ruled there was a dispute of fact about whether the employer’s disciplinary actions were reasonable in light of the repeated harassment by the same employee. This case is a useful reference for employers when they are dealing with repeated sexual harassment conducted by the same employee and deciding the degree of punishment to act upon. Employers must respond to sexual harassment with appropriate discipline so that repeated misconducts can be minimized, and they should also recognize that employees with a history of harassment also create liability risk. Retaliation The fastest-growing area of employment litigation is retaliation, and it is one of the factors that contribute to a low reporting rate for sexual harassment complaints (Frieswick, 2007). Retaliation can come from either the harasser or the employer, and can be acted towards either the victim or witness (Zachary, 2008). The harasser should be warned not to retaliate in any way against the complaining employee or witnesses, and not to even discuss the matter with them. In a survey conducted by Peirce et al. (1997), over 66 percent of respondents would be encouraged to report harassment incidents if

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they were not required to confront the harasser. Retaliation coming from the employer can hurt the employer himself or herself even if a sexual harassment policy has already been adopted. In the case Morris v. Oldham County Fiscal Court (2000), although the harassment was not severe enough to hold the employer liable, the court ruled that the employer was liable for showing retaliation. Given the consequence of retaliation, it is important that after a sexual harassment complaint is reported, the employer should avoid any forms of retaliation to the employees involved. Counselling After a sexual harassment complaint is reported, the employer may take this opportunity to educate the harasser by providing counselling services. The counsellor can reemphasize the company's anti-harassment and zero-tolerance policy, and explain its enforcement standards and larger legal consequences that may follow (Training or punishment: Which path should you take? 2001). The purpose of counselling is to raise awareness of this type of misconduct as well as other offensive behaviours that are sensitive and may be misinterpreted in the workplace. Some organizations also encourage counselling the victims to rebuild their trust and mental state suffered from the incident (Iwahashi, 2005). Insurance coverage Ever since Anita Hill v. Clarence Thomas, the most publicized sexual harassment case in two decades, sexual harassment claims have increased dramatically (Altman & Lavelle, 1998). More employers have sensed that the demand for sexual harassment coverage is greater than before, and started to seek protection from lawsuit by acquiring insurance. As this paper has pointed out so far, employers today face all types of liability risk when it comes to sexual harassment. For those employers who have purchased liability insurance, to best defend their organizations when an incident of sexual harassment occurs, they should notify the insurance companies immediately (Altman & Lavelle, 1998).

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Conclusion The challenge before employers and managers today is to develop strategies or find ways to enhance the old ones and to protect the organization from sexual harassment complaints. Effective prevention and correction mechanisms can reduce the occurrence and damage of sexual harassment to the minimum. Oftentimes sexual harassment arises from gender or power inequalities. It may be helpful to consider the degrees of these factors when designing an approach to handle sexual harassment in a specific organization. It would also enhance the usefulness and effectiveness of an organization's approach to handle sexual harassment by studying other organizations that have successfully reduced or eliminated problems caused by this harmful misconduct.

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