Prevent Harassment Claims

Propelled in part by the Senate confirmation hearings of Clarence Thomas and Anita Hill's charges of sexual harassment, along with the ensuing public debate on the issue, Congress passed the Civil Rights Act of 1991. Its explicit inclusion of compensatory and punitive damages and jury trials in Title VII claims increased potential costs to employers who fail to prevent workplace harassment. Not surprisingly, there has been a sharp increase in the number of sexual harassment claims since 1991. Thus, aside from decreasing morale and productivity while increasing turnover, sexual harassment poses the very real threat of civil liability, including punitive damages.

Fortunately, through the use of effective training, policies, and procedures-the kind the Oregonian survey found largely lacking-employers can prevent such conduct in many instances and greatly limit their liability in many others.

WHAT IS SEXUAL HARASSMENT?
Sexual harassment is any repeated and unwanted verbal, nonverbal, or physical advance of a sexual nature. This includes looks, touches, jokes, gestures, innuendos, epithets, or propositions by someone in the workplace, which impede an employee's enjoyment or ability to perform his/her work or employment opportunities. This can take the form of a "friendly" arm around the shoulder or an "accidental" brush against the body. Sexual harassment does not, however, include isolated instances where one employee asks another for a date and, once turned down, does not continue to pursue the matter. Notably, such claims may be brought by employees of either gender based on conduct by supervisors, coworkers, or even nonemployees of either gender. The Supreme Court has explicitly ruled that employees may state valid same-sex sexual harassment claims. Moreover, such harassment need not be motivated by desire, but may be driven by simple hostility toward persons of a particular gender in the workplace.

Sexual harassment is a recognized action on both the federal level under Title VII and state level in both Oregon (ORS § 659) and Washington (RCW § 49.60). All three use the same basic analysis, thus the following discussion applies equally to each jurisdiction. In addition, each statute includes a retaliation provision which makes it illegal for an employer to retaliate against an employee because he or she initiates a complaint. Likewise, each provides for an award of attorneys' fees to a "prevailing party" (these provisions invariably apply only to prevailing plaintiffs). One significant difference between the statutes is to whom they apply.

While Title VII only governs employers with fifteen or more employees, RCW 49.60 applies to those with eight or more and ORS 659 covers all employers. Similarly, while Title VII requires a plaintiff to exhaust his or her administrative remedies by filing a complaint with the EEOC before bringing suit, RCW only requires administrative exhaustion in some cases and ORS 659 never requires such steps.

There are two general types of sexual harassment. The first is the conditioning of a tangible job outcome on submission to requests for sexual favors or conduct of a sexual nature. This is commonly referred to as "Quid Pro Quo" harassment. The basic nature of such claims is self-explanatory. The second and more prevalent type is "Hostile Environment" harassment. In a hostile environment claim the employee has not necessarily suffered any tangible employment action, but he/she has endured offensive behavior that was severe or pervasive enough to alter the conditions of the employment.

Hostile environment complaints make up the majority of claims. To be actionable as "hostile environment" harassment, the conduct need not seriously affect an employee's psychological well-being or lead the employee to suffer injury. Rather, the standard requires an objectively hostile or abusive environment as well as the victim's subjective perception that the environment is abusive.

Whether an environment is sufficiently hostile to be actionable requires consideration of all the circumstances rather than any singular factor. Because of the highly fact-specific nature of the claims there are no magic numbers or facts that will definitively determine which situations are "severe" or "pervasive" enough to be actionable. Nonetheless, the Supreme Court has identified four factors that are considered in determining whether the conduct complained of objectively altered an employee's terms or conditions of employment. They are: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance. The purpose of these factors is to distinguish environments which are merely "unpleasant" from those that are actually "hostile."

Courts examine the conduct in context, not as isolated acts, and determine under the totality of the circumstances whether the harassing conduct is sufficiently severe or pervasive to alter the terms or conditions of the plaintiff's employment and create a hostile working environment. Although the accompanying high degree of uncertainty may deter some plaintiff employees from bringing claims, employers are stuck with the same uncertainty in trying to investigate and defend those claims that are filed.

Generally, single incidents are not actionable as hostile environment claims unless there is significant physical contact, and even then the conduct must be extreme. For example, our 9th Circuit recently found one troubling incident of physical touching insufficient to be severe or pervasive. In Brooks v. City of Mateo (2000), a senior 911 dispatcher trapped Brooks, another dispatcher, between her chair and desk while she was taking a call and forced his hand underneath her sweater and bra. The 9th Circuit held that Brooks did not state a valid claim, noting that the EEOC Policy Guidance requires a single incident to be "extremely severe" to support such a claim. The court found persuasive the fact that Brooks did not allege that she sought or required hospitalization nor suffered any physical injuries. It concluded that "(n)o reasonable woman in Brooks' position would consider that Selvaggio's misconduct had altered the terms or conditions of her employment." This is not to say, however, that such an act could never constitute harassment or that a different court would have found such conduct actionable. Indeed, just months after Brooks, another Circuit court concluded that three similar instances did indeed create a hostile environment.

If there is a unifying theme among the hostile environment cases, it is simply that you just don't know if there is a valid claim until a judge or jury tells you there is. And that will only happen after extensive investigation and expensive litigation. Hence, there is an enormous importance in preventing such claims from ever arising to begin with.

WHAT IS MY LIABILITY FOR SEXUAL HARASSMENT?
Whether an employer will be liable for the harassing acts of others should be of primary importance to every employer. Courts make this determination based largely on the harasser's position and the type of employment action that has been taken.

Quid Pro Quo Harassment
When a supervisor conditions an employment opportunity on a sexual or social relationship, an adverse employment action in response to the refusal of the demand constitutes sexual harassment. Thus, if a plaintiff employee proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, the plaintiff conclusively establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable.

The bottom line for quid pro quo harassment is that once there has been a tangible employment action (e.g. firing, demotion, undesirable reassignment, refusal to promote...etc.) an employer is always vicariously liable.

Hostile Environment Harassment created by Supervisors
Where a supervisor with immediate or successively higher authority over the plaintiff employee is the source of an actionable hostile environment claim, an employer is vicariously liable to the employee. If there has been a tangible employment action then the employer has no defense to the liability.

If, however, there has been no tangible employment action taken, then the employer may raise the so-called Faragher-Ellerth defense to the liability. The employer will be required to make a two-part showing. The employer must prove: (1) that it took reasonable care to prevent and promptly correct the harassing behavior; and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. This defense offers a highly effective and proactive means to prevent harassing behavior altogether and to avoid liability if it should occur. It is discussed more thoroughly below.

Hostile Environment Harassment created by Coworkers
If a plaintiff employee has stated a hostile environment claim on the basis of actions taken by coworkers, the employer will be liable if it knew or should have known of the conduct. This is subject to one simple defense: an employer will not be liable if it can show that it took immediate and corrective action.

Corrective action must be reasonably calculated to end the current harassment and deter future harassment from the same offender or others. At the federal level, the 9th Circuit, unlike the other circuits, requires employers to take some form of "disciplinary action" against a harassing coworker as part of the corrective action. This may be a simple reprimand or a letter in the offender's file, but might go so far as suspension or reassignment. The legal adequacy of the particular response will depend upon the seriousness of the particular harassment. In addition, the selected remedy must target the harasser and not the victim. It is not enough to simply reassign the harassed employee as part of the remedy. Likewise, a remedy that leaves the victimized employee worse off is ineffective per se.

Hostile Environment Harassment created by Nonemployees
An employer may also be liable for the acts of nonemployees (usually customers or clients) where the employer knew or should have known of the harassment and failed to take swift and appropriate corrective action. Absent such a response, courts conclude that the employer has ratified or acquiesced in the customer or client's demands and will hold the employer liable for such conduct.

For example, one court recently held an employer liable for harassment based on the sexual advances made by a high-level executive of one of the employer's most important customers. The court upheld the jury's verdict in her favor, concluding that the employer "not only acquiesced in the customer's demands, but explicitly told her to give in to those demands and satisfy the customer."

Likewise, the 9th Circuit has confirmed that an employer may be held liable for sexual harassment on the part of a private individual, such as a casino patron, where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective action when it knew or should have known of the conduct. Reasonable corrective action in these cases, quite logically, is whatever action protects the employee from the complained of conduct or prevents it from occurring again.

Liability to Other Employees Where a Harassed Employee Submits to a Quid Pro Quo Demand
Here's a unique spin. Where employment opportunities are granted because of an employee's submission to an employer's or supervisor's requests for sexual favors, the employer may be held liable under Title VII for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity. So, if a supervisor promotes a female employee because she submitted to requests for sexual favors, other employees that were qualified for the promotion, both male and female, may sue the employer under Title VII for sexual discrimination.

This does not mean that an employer will be liable where a supervisor is having a consensual relationship with an employee and promotes her over other qualified employees. Rather, the employer may only be liable where the relationship results from harassing behavior. Thus, simply promoting one's paramour is not actionable conduct in the majority of courts that have encountered this claim.

WHAT CAN I DO TO AVOID LIABILITY?
Employers are in the difficult position of running a profitable business while monitoring the social behavior of their employees (and possibly others). Nonetheless, as with most ailments, the best remedy for sexual harassment is prevention.

The starting point in preventing harassment is a well-written policy. In addition, comprehensive training of all employees, especially those with decision making authority, and effective grievance and investigatory procedures are also vital. A sexual harassment policy should do the following:

1. State the employer's philosophy on sexual harassment and its commitment to responding to circumstances suggesting sexual harassment, even lacking a formal complaint.


2. Define "sexual harassment" thoroughly.


3. Assure that employees that file complaints or provide information regarding such complaints will not be retaliated against and that such information will remain confidential.


4. Delineate a meaningful complaint procedure. If possible, it should make people of both genders available to handle a complaint.


5. State the consequences of violating the policy.


6. Provide ongoing educational and training programs.


7. set forth the rights of those against whom complaints have been made. An employer should provide every employee with a copy of the policy and the complaint procedure, and it should redistribute the policy periodically. In addition to providing each employee with a copy, the policy and complaint procedure should be posted in a central location and incorporated into employee handbooks, which should include a signed acknowledgement of the contents.

Vigorous enforcement of the sexual harassment policy is vital to its success. First, only if everyone is aware of the policy and believes it will be enforced can it actually prevent harassment to the fullest extent. Second, a widely understood policy encourages potentially harassed employees to come forward at an early date, which provides management a chance to promptly take corrective action before irreparable injury occurs to any party involved. Finally, reducing harassment has been shown to improve productivity and prevent absenteeism, low morale, adverse publicity and legal penalties that result from such claims. One oft cited study found that approximately 24% of harassed women use leave time to avoid a harassing situation.

Further, among the women in this group that choose to simply ignore the situation, the study found a 10% drop in the productivity of the victim and a 2% drop in the victim's coworkers that were aware of the situation. A well-enforced policy makes simple economic sense in the end.

Next, an employer should train its employees in every aspect of sexual harassment, especially supervisors and any others with significant decision making authority. The first reason does so is to simply prevent quid pro quo types of harassment. Once such harassment is proven there is no defense. Further, if an employee gives in to such demands, the door is open for other employees to file claims if they were adversely affected. Second, comprehensive training is important so supervisors will promptly and properly respond to complaints or known
incidents of coworker or nonemployee harassment. Only then can liability be avoided in these situations.

Finally, training is imperative if an employer seeks to use the affirmative defense to vicarious liability for a hostile environment. As noted above, where a supervisor creates a hostile environment an employer is vicariously liable unless it can make out a two-part defense.

The first element of the defense is that the employer exercised reasonable care to prevent and promptly correct any harassing behavior. In examining this element, courts expect employers to provide regular and comprehensive training to their employees as part of their preventive efforts.

This training should explain, among other things, the types of conduct that violate the employer's anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn in any way of alleged harassment; and the prohibition against retaliation against those who file complaints. For supervisors and managers, annual training should be provided.

In addition to developing a comprehensive policy and thorough training, once a complaint has been filed an employer must investigate the charges properly. In the age of the Faragher/Ellerth defense, investigations are a key element in avoiding liability. Careful investigation is a principal means by which an employer can prove it took reasonable means to correct any harassing behavior-the first element of the affirmative defense. In addition, an effective investigation is the best point at which to accomplish the second prong of the defense-proving that the employee failed to take advantage of corrective opportunities provided by the employer. An exhaustive investigation should reveal exactly what the complaining employee did and did not do.

Investigations should begin promptly, but not be rushed to completion. Courts examine the timing and scope of an investigation carefully. Allegations of sexual harassment should be treated similarly to other types of misconduct. When possible, employers are wise to use both male and female investigators so as to ensure a fair analysis of the facts and assessment of witnesses' credibility. The investigatory process should be perceived as fair to both the alleged victim and harasser. If the process appears sloppy or biased the employer runs the risk of losing its defense. Further, if the investigation is seen as unfair, the alleged harasser may bring suit for any unwarranted employment actions. Such employees have brought suits for breach of employment agreements, breach of implied-in-fact agreements, defamation, infliction of emotional distress, and gender discrimination based on allegedly inadequate investigation of charges.

The 9th Circuit's recent decision in Montero v. AGCO Corp. (1999) is illustrative of the importance of a thorough policy and proper handling of a complaint. Citing its sexual harassment policy and response to an allegation of harassment, the employer effectively avoided vicarious liability for harassment. The policy provided a clear definition of sexual harassment, identified whom employees were to contact if subjected to harassment, described the disciplinary measures that might be used, and made clear that retaliation would not be tolerated.

The plaintiff employee testified that upon hiring she received a handbook that contained the policy. She also stated that during her tenure two other packets regarding the company's harassment policy were distributed to her and other employees. Two days after contacting her human resources manager with the allegations, the manager flew to her office to investigate the complaint. Within a week one of the alleged harassers was terminated and two more disciplined. The human resources manager then met with all the employees in the office and made clear that retaliation would not be tolerated. As a result of these expeditious efforts the employer avoided potential liability.

Another recent decision is illustrative of what not to do. In Molnar v. Booth (2000), a court found that an employer's policy, complaint mechanism, and response defeated its affirmative defense. While the company had a general policy barring discrimination on the basis of race, color or sex, it had no policy aimed specifically at sexual harassment. Nor did its policy provide employees with any guidance about handling such harassment. The employer also failed to effectively investigate the plaintiff's complaint. As a result, the employer was vicariously liable for the harassing behavior of a supervisor.

CONCLUSION
Sexual harassment continues to be a pervasive problem in many workplaces. Even worse from an employer's viewpoint, liability for such conduct has continued to expand to the point where an employer can be held accountable for the actions of not only those it employs, but also its clients and customers. Further, sexual harassment claims rarely come alone. They are usually accompanied by additional claims of retaliation, emotional distress, and various other claims of discrimination. Recent developments in the courts have also, however, provided for, and indeed mandated, proactive solutions to sexual harassment. Carefully crafted policies, thorough employee training, and meticulous investigations are invaluable means to not only prevent such detrimental conduct, but to insulate an employer from liability should it ever occur.