Recent U.S. Supreme Court rulings on sexual harassment seem to have confused employers. Large and not-so-large businesses are asking: What must we do to reduce the chances of being successfully sued in harassment cases?
The high court decisions, which were announced in late June, reaffirmed that an employee who spurns a come on from the boss but encounters no adverse on-the-job consequences still can claim sex harassment. However, employers can defend themselves in such cases by proving that they "exercised reasonable care to prevent and promptly correct any sexually harassing behavior," the opinions said. The aggrieved employee, the court added, must have "unreasonably failed to take advantage of any protective or corrective opportunities."
Alas, the decisions are not especially helpful in assisting businesses develop or re-shape their anti-harassment policies or grievance procedures. As if to further confound the situation, the high court said that such measures aren't necessarily required "in every instance as a matter of law."
Employment law experts foresee years of litigation over the meaning of "reasonable care." Bewildered and more than a bit nervous, waste company owners shrug their shoulders. "It's hard to judge what we have to change," says the human resources supervisor for a 300-employee hauling and disposal firm. "The company has a strict policy against sexual harassment, but we simply have no choice except to rely on our managers and supervisors to carry the message and crack down where necessary."
Two years ago, the directors of a Midwestern waste company asked a senior executive to resign after they received complaints from a number of women in the organization. Apparently, the firm had a grievance procedure for handling harassment claims against immediate supervisors and mid-level managers, but no policy or mechanism for channeling complaints aimed at top officials. Senior officers now are covered under a procedure where the company's general counsel personally undertakes an investigation.
For the most part, company policies remain silent or deficient on how to get the directors' attention when a member of senior management is accused of sexually harassing a subordinate.
Responsible businesses will correct such omissions and deficiencies in an effort to respond in good faith to the albeit vague standards set by the Supreme Court.
Part of such a response may include a second look at in-house sex-harassment training programs and complaint procedures. Every employee, from the clerk to the CEO, should undergo periodic, company-specific training on gender awareness issues. Still, it's one thing for an organization to develop and publicize an impressive code of conduct for all employees without exception. It's another to convince workers that the employer truly is committed to unflinching enforcement.
Too often, a valued top executive who sexually harasses a subordinate can sidestep punishment or career-threatening consequences whenever the company can convince the victim to transfer to another department, perhaps sweetening the offer with a small pay raise or nominal promotion.
The Supreme Court rulings send a strong signal to both the public and private sectors: Organizations must redouble their efforts to eliminate sexual harassment. Reports and complaints must be thoroughly investigated. Offenders must be disciplined or, where appropriate, sacked.
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