Software Club 210: Light Red/Club_Software_210_Light_Red_Micro_Star_1997.iso/sba/f129.sbe

Text File | 1997-01-07 | 8KB | 178 lines

@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, a few years ago, 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
@CODE: MA
Also, recently enacted Massachusetts legislation required
all businesses with 15 or more employees to adopt a written
policy on sexual harassment by November 6, 1996.  The law
further requires all businesses with more than 5 but less
than 15 employees to adopt such a written policy no later
than January 1, 1997.  (Chapter 278, Massachusetts General
Laws)  A company's written policies must include, among
other requirements, all of the following:

  . A description and specific examples of what constitutes
    sexual harassment.

  . A statement that it is unlawful to retaliate against
    an employee for filing a complaint for sexual
    harassment or for cooperating in an investigations.

  . A statement that delineates the range of consequences
    for any employees who are found to have committed
    sexual harassment.

  . A description of the process for filing internal
    sexual harassment complaints.

  . The identity of person or persons to whom a complaint
    should be made.

  . The identity of appropriate Massachusetts and federal
    employment discrimination enforcement agencies, and
    directions on how to contact those agencies.

A copy of the written policy must be distributed annually
to each employee and to new employees at the time of hire.
The new statute also enco