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Preventing Sexual Harassment in the Workplace

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“Sexual harassment isn’t about sex.  It’s about power.  She has it.  You don’t.” These lines, made famous in the 1994 Michael Douglas / Demi Moore box office hit Disclosure, are not just part of a fabricated Hollywood script.  Sexual harassment is often about power and control. However, it’s important to remember that sexual harassment can take many forms, and lead to an array of legal problems for employers. 

According to the Equal Employment Opportunity Commission (EEOC), sexual harassment is defined as, “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.”    

The statistics continue to grow each year.  Over 13,000 sexual harassment cases were brought to the EEOC in 2004.  Contrary to popular belief, women are not the only ones who file charges.  The number of sexual harassment complaints filed by men has more than tripled in recent years.  In fact, men filed 15% of 2004’s claims.

In some instances, these cases could have been avoided if employers had taken the proper steps to stop sexual harassment before it even started.  As outlined in the Workforce ManagementOops, I did it Again: Ten Most Common Managerial Mistakes That Lead to Litigation,” attorney Maxine Neuhauser of Epstein Becker & Green stresses that training is of utmost importance.  “Supervisors need training about how to handle difficult situations – what to say, whom to turn to for assistance, and what not to do.  Failing to provide management training is shortsighted, and with the rise of potential individual liability, unfair to a company’s supervisors.”

Another crucial mistake, according to Neuhauser, is dismissing inappropriate behavior as simply, “boys will be boys.” “Jokes, emails and passing comments when considered individually may be of little consequence.  Accumulated and viewed as a whole, however, they can be used to show pervasive misbehavior that has converted a professional workplace into a frat house.  That a harassing employee may not intend to harass his co-worker does not constitute a defense nor does it create a shield from being sued.”  Employers who are aware of inappropriate conduct but do not take any steps to correct it are at serious risk of litigation and liability for damages.  

Employers may also be liable when a non-employee, such as a customer or vendor, harasses an employee.  This could provide a unique problem especially if the harasser’s business is vital to the financial success of your organization.

As noted in the HR MattersHarassment by Customers Puts You in Hot Water,” the EEOC Guidelines on Discrimination Because of Sex states that an employer may be responsible for sexual harassment by non-employees, such as customers or vendors, if the following two conditions are present. First, employers must either have actual knowledge of the harassment or reasonably should have known about the problem. Second, they must have failed to take immediate and appropriate corrective action. 

In the case of non-employee harassment, the HR Matters article recommends that after investigating the claims, employers should focus on limiting the degree of contact that the harassed employee has with the outsider.  It is imperative that this be discussed with the employee first, in order to come to an acceptable solution that won’t negatively effect the employee’s position.  Most importantly, however, if an employer finds that sexual harassment is taking place they must immediately do whatever they can to stop it.

At times, “Hollywood” and reality can overlap.  This past October, Bill O’Reilly, popular host of Fox News Channel’s The O’Reilly Factor, found himself embroiled in a high profile sexual harassment case. The suit documented, in detail, the alleged lewd and graphic verbal exchanges between O’Reilly and his accuser, Andrea Mackris, who worked as an associate producer on his show.  The cited quotations in the complaint may have read like the script of an NC-17 rated movie, but unfortunately for Fox News, it was allegedly far from fiction.  The case was eventually settled out of court for what was described by the media as a “multi-million dollar settlement.”