What You Need to Know About Sexual Harassment

By Peter J. Preston

In recent years, sexual harassment has been in the news and caused a substantial amount of controversy for political leaders and other top officials. But you may never think that this type of harassment can also exist at small companies, or even worse, your company. As a small business owner, you are responsible for knowing the laws and keeping your employees protected.

Defining Sexual Harassment

For sexual harassment to occur, a hostile work environment must first be established. The U.S. Supreme Court requires a plaintiff to show that the workplace was permeated with “discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

What does that mean in plain English? Courts hear cases every day that have endless varieties of factual situations. That makes it hard to provide a simple, one-size-fits-all definition, but one court described the definition above as a “middle path between any conduct that is merely offensive and requiring that the conduct cause a tangible psychological injury.” In other words, “while offhand comments and isolated incidents are insufficient to constitute harassment under [the law], Title VII comes into play before the harassing conduct leads to a nervous breakdown.”

Case Study

The law does not limit sexual harassment to improper touching in the workplace, or even to inappropriate comments. In a case called Munroe v. Compaq Computer Corp., email was part of the alleged harassment. Examining that case may help you understand what you need to do to make sure your company is not accused of fostering a sexually hostile environment.

In the Munroe case, the employee claimed one of her co-workers began making sexual advances toward her, becoming increasingly offensive over time. She tried to ignore the comments, but when he persisted, she told the co-worker to not talk to her. He continued, sending her at least three sexually suggestive emails, and once left a bottle of wine, makeup and a nightgown in her locker, with a note containing sexually suggestive comments. In addition, he occasionally grabbed the employee, and once used his body to block her exit from a room.

Some time after these activities occurred, the employee complained to her direct supervisor, who did nothing in response. The supervisor laughed when he read the offending emails, and deleted them from her computer. His advice was to speak to the co-worker and resolve the problem on her own. The supervisor also harassed the employee, making lewd comments, referring to his lack of a sex life at home, asking her to wear a skirt to work so he could stand below her while she was working on a ladder and asking her to go home with him.

The company had an anti-harassment policy in place, which prohibited sexual harassment. Under the policy, anyone receiving a complaint of harassment was to treat the issue seriously and take appropriate steps. A separate sexual harassment policy required supervisors and managers to report complaints to a specified national office of the company’s. That policy also provided a 24-hour hotline to receive complaints, which could be anonymous if the employee so chose.

Ultimately, the employee reported to the HR department that her supervisor and co-worker were harassing her. The HR employee immediately contacted an in-house attorney, who encouraged her to stay on and assured her that the company would conduct a thorough investigation; she declined and resigned. The attorney conducted an investigation over the next two weeks resulting in the co-workers termination, and prompting her supervisor’s resignation.

After initial reluctance, the employee returned to work within two months, but filed suit alleging sexual harassment. The company filed a motion for summary judgment, asking the judge to determine the case did not warrant a jury’s attention and should be dismissed.

The court ruled the employee had presented enough evidence, which, if true, amounted to a hostile environment based on sexual harassment. To defeat the employee’s claim, therefore, the company had to show it a) took reasonable care to prevent and correct harassment and b) the employee failed to take advantage of the mechanisms the company put in place to remedy harassment.

If an employer has issued an anti-harassment policy with a complaint procedure that will typically be sufficient to show the employer took reasonable care to prevent harassment. In this case, the employer clearly had done so. However, the employee argued the company did not exercise reasonable care because it allowed the harassing supervisor to remain in place despite past allegations – prior to this employee’s – against him.

Since the employee reported the harassment from her co-worker to her supervisor and the supervisor not only refused to do anything about the complaint, he laughed about the emails and told the employee to work things out for herself, the company was responsible for knowing about the alleged harassment complaint, and failed to take corrective action.

On a motion like the employer here filed, the court is required to accept the employee’s allegations as true. In doing so, the court found a sexually hostile work environment existed, and the employer had failed to establish it did anything to stop it. The practical effect of that ruling is the case proceeds to trial by jury.

• Your business simply must have a policy that condemns sexual harassment and provides multiple methods by which victimized employees can report harassment.
  
  
• That policy must be enforced. If an employee uses that policy in reporting harassment and your company does nothing in response, you may as well have had no policy at all.
  
  
• Managers have to know to pass complaints through the proper channels, even when the alleged harasser is a co-worker and not a supervisor.

The expense of having counsel prepare or update a company handbook to include an appropriate anti-harassment policy will be rewarded the first time such a claim is made against your business!



Peter J. Preston is an attorney at the Chicago office of Sedgwick, Detert, Moran & Arnold LLP.

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