Hello, and welcome to Team C’s final presentation, “What Employers Should Do to Minimize Liability in Sexual Harassment Claims” for OL681 – Leadership in Human Resources.

Overview While sexual harassment is one form of harassment, it is certainly the topic that receives the most attention from a legal and headline standpoint. Employers caught in harassment litigation find themselves subject to significant financial penalties, reputational damage, decreased employee morale, retention and productivity, and can make it more difficult to recruit top talent. It is not good for business. Therefore it is in an employer’s best interest to proactively maintain a harassment-free workplace. The EEOC (Equal Employment Opportunity Commission) defines sexual harassment as unwelcome sexual advances, requests for sexual favors and other physical or verbal conduct of a sexual nature. To be unlawful, harassment must typically be severe or pervasive and a pattern of behavior. There are two generally recognized forms of harassment: Quid pro quo (meaning this for that) involves a sexual advance or demand for sexual favors that can be traded for an employment outcome. The harasser is typically in a position of power over the victim. Hostile work environment is conduct that is “physically threatening or humiliating or that unreasonably interferes with an employee’s work performance” (Walsh, 2010). It can take the form of written, spoken and/or physical and includes comments, words and actions based on personal characteristics. While harassment has a formal definition, that most important element is how an action or situation is perceived by the victim. While behavior might cross the line as inappropriate, it is only harassment “based on the victim’s response, not the perpetrator’s intent” (Sramcick, 2010). It is important to note that while some situations may not result in either party being offended, a 3rd party who overhears maybe offended and have a valid harassment claim. The courts have defined four elements for a valid harassment claim. Harassment must be based on a protected class characteristic as defined under discrimination laws and statutes. It must result in tangible, adverse employment action that significantly alters employment status, such as a loss of a promotion or termination. The harassment must be unwelcome by the victim. As discussed, each person’s definition of unwelcome is different. Inappropriate behavior does not necessarily have to be harassment. The standards for employer liability depend on the type of harassment and the position of the harasser. In situations where leaders in the organization engage in harassing behavior, liability is automatically and unconditionally placed with the employer. When harassment occurs by a co-worker or other 3rd parties, liability is determined based on whether the employer knew or should have known about the harassment and then failed to take appropriate corrective action to address the harassment.

Statistics In 2011, almost half of all workplace harassment settlement dollars were tied to sexual harassment claims ($52.3 million) filed with the U.S. Equal Employment Opportunity Commission. Of the 11,364 claims filed, 16.3% were by men, a statistic that dropped .1 percent from 2010 (EEOC). Overall, claims dropped from 15,889 in 1997 to 13,867 in 2008 to their current number (11,364) based on the last available year for data, which is 2011. However, even with the drop, some gender discrepancies exist, including what is construed as sexual harassment. A study conducted for the research text, “Sexual Behavior at Work: Fun or Folly?” found that 25% of employees viewed potential harassment fun or flattering while half found it benign. In the same study, though, four times as many men as women found the behavior flattering (Berdahl, Aquino, 2009).

Harassment – Policies and Procedures The most effective weapon against sexual harassment is prevention. In order to minimize or prevent claims it is important for every organization to have a written policy and procedure that complies with state and federal laws. It is important that top management and the human resource manager work together in creating a effective plan that all employees can understand.

Harassment – Policies and Procedures In creating a plan it is important to include the legal definition of quid pro quo, hostile work environment, and sexual harassment. Employees need to know what is considered harassment and the policy should give examples. It needs to be clearly defined that the organization does not tolerate any forms of harassment and what are the consequences to an employee for harassing a co-worker. The policy should include an anti-retaliation provision for those employees who report harassment. Within the policy a written procedure should be outlined on how complaints are handled and to inform employees that an investigation will take place to determine if charges are correct or false with malicious intent.

Implementing Policy and Procedure Another effective option for companies is to collaborate with a specialized consulting firm and outsource training to companies such as the Biddle Consulting Group, a leading EEOC consulting firm. Providing full-day sexual harassment workshops is an effective way to expose employees to this topic. Whether it is in-house training or outsourcing to consulting firms, it is imperative that an organization correctly implements their policy and procedures in order to minimize the liability of sexual harassment claims.

Implementing Policy and Procedure   Effective implementation of the policy is as important as the policy itself.    The EEOC regulations require companies to implement a policy and procedure that establishes a clear response to and prevention of harassment. This policy should be distributed to all employees upon hire and on a regular basis.    Employee handbooks and visible postings are great ways to ensure the information is available to employees. It is recommended that employers implement through general staff meetings and then department meetings to communicate policy specifics and how they relate and affect each department.    Training is mandated for supervisors in many states, but it highly recommended for all employees. Content should be tailored for the specific audience and consistent messaging will drive the right behaviors.    Employee feedback is critical to continually improve the effectiveness of the content and the training process. 

Balancing The Scale The balancing act of advocating against sexual harassment while limiting an employer’s liability is a delicate check and balance. On one side of the scale the employer should educate and communicate employees to the company’s zero tolerance for behaviors that can be construed as sexual harassment. All complaints must be taken seriously and immediately investigated. Once the investigation of the alleged conduct is completed, its findings and subsequent corrective actions should be implemented at once. The scale’s other side recommends the employer have an established policy & procedure in place, communicate it to new hires and review the content with the organization’s staff at large regularly. Meticulous documentation confirming the employee’s review and understanding of the corporate sexual harassment policy and procedure, how to file a complaint and to whom, should be documented. Any communications related to a complaint, its investigation and subsequent corrective action should also be thoroughly documented and remain on file. The organization’s ability to demonstrate consistency in responding to any claim of sexual harassment while maintaining their policy & procedures will assist in their proving an affirmative defense that they have practiced reasonable care to prevent and correct sexually harassing behaviors and that the plaintiff employee failed to take advantage of the preventative and corrective opportunities. This scale has the employer in a dual roles, both equally important, both with serious consequence, diligent attentiveness keeps the scale balanced.

Back to Basics – The 3 “R”s Laws, regulations and extensive information speaking to sexual harassment and recommendations for a best practice approach in the workplace in dealing with allegations of sexual harassment can overwhelm a manager. The 3 “R”s reinforce our basic educational focus. Here it is applied to the three important actions in responding to a claim of sexual harassment. A manger should be an advocate of an organization’s sexual harassment policy and procedures and assist in enlightening employees to them. Any report of conduct construed as sexually harassing to a subordinate should be reported immediately to the next in command. The complaint would trigger an immediate investigation and the subsequent findings and corrective actions must be carried out by the manager. Maintaining the basics can limit an employer’s liability while allowing for the employee to be aware, feel protected and guarantee a remedy to any sexual harassing conduct in the workplace.  

References Anonymous. How Employers Can Defend Themselves Against Sexual Harassment Suits. (2008, October). Fair Employment Practices Guidelines,(641), 1,3.  Retrieved June 24, 2012, from ABI/INFORM Trade & Industry. (Document ID: 1592588111).   Associated Press (2008, March 14). Pentagon releases sexual harassment data. Msnbc.com. Retrieved from http://www.msnbc.msn.com/id/23636487/ns/us_news-military/t/pentagon-releases-sexual-harassment-data/#.T-Ys8XBcH5I   Berdahl, J., & Aquino, K. (2009). Sexual Behavior at Work: Fun or Folly? Journal of Applied Psychology. 94. No. 1, 34-47.   Dessler, G. (2012). Fundamentals of Human Resource Management, 2nd Edition . Upper Saddle River, NJ: Prentice Hall.   Enforcement Guidance. (1999, June). Retrieved from http://www.eeoc.gov/policy/docs/harassment.html   Greenwald, Judy, December 11, 2011. Best practices for confronting employee sexual harassment http://www.businessinsurance.com/article/20111211/NEWS07/312119985   Human resource industry partners. (2010). Retrieved from http://www.biddle.com/partners.php   Jennings, L. (2009, November). Attorneys to operators: Policy not enough to avoid harassment suits. Nation's Restaurant News, 43(44), 4,33.  Retrieved from ABI/INFORM Global. (Document ID: 1927177011).   Khadaroo, S.T. (2012, June 15). Yale settles Title IX complaint, launches new sexual misconduct policies. The Christian Science Monitor.   O'Gara, Esq., W. (n.d.). Implementing a sexual harassment training policy and program. Pannone Lopes Devereaux & West LLS   Sorensen, Paul T. "A fresh look at employer liability for sexual harassment." Thomas M. Cooley Law Review Sept. 2010: 509-538. LegalTrac. Web.   Tahmincioglu, E. (2011, November 1). Sexual Claims Common in Pressure-Cooker Restaurant World. Msnbc.com. Retrieved from http://bottomline.msnbc.msn.com/_news/2011/11/01/8565198-sexual-claims-common-in-pressure-cooker-restaurant-world?lite   Sramcik, T.  (2006, November). Heading off HARASSMENT. Aftermarket Business, 116(11), 80,82,84,86.  Retrieved from ABI/INFORM Trade & Industry. (Document ID: 1167156891). U.S. Equal Employment Opportunity Commission. (2011) Sexual Harassment Charges EEOC & FEPAs Combined: FY 1997 - FY 2011. Retrieved from http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment.cfm   Walsh, D.J. (2010). Employment Law for Human Resource Practice, Mason, Ohio, USA: South-Western Cengage Learning. Why It's Best to Keep Records on Sex Harassment Complaints. (2006, December). HR Focus, 83(12), 2.  Retrieved from ABI/INFORM Global. (Document ID: 1173760971).

What Employers Should Do To Minimize Liability In Sexual Harassment Claims John Bossidy, Kimberly Farrar, Genna Martini, Brett Orzechowski, Gabbriel Simone OL681-Leadership in Human Resources

EEOC definition of sexual harassment: Unwelcome sexual advances Requests for sexual favors Other physical or verbal conduct of a sexual nature Two recognized forms of harassment: Quid pro quo (this for that) Hostile Work Environment Harassment defined by the individual “Based on recipient’s response, not perpetrator’s intent” (Sramcick, 2006) Overview

In 2011, almost half of all workplace harassment settlement dollars were tied to sexual harassment claims file with the U.S. EEOC (EEOC). $52.3 million in settlements (EEOC). Overall, claims dropped from 15,889 in 1997 to their current number (11,364) in 2011 (EEOC). Statistics

Prevention Creating a written policy is critical in preventing sexual harassment claims/liability. Management should work together in creating a plan. Harassment – Policies and Procedures

Policy should include: Definition of quid pro quo Explanation of forms of harassment Zero tolerance policy Protection from retaliation Process for handling complaints and investigation Harassment – Policies and Procedures

Implementing Policy & Procedure Collaborate Specialized consulting firm Provide full day sexual harassment workshops

Employer has obligation to implement policy Upon hiring and on regular basis Ways to implement Distribute handbooks General and department meetings Post visibly Supervisor and employee training Follow up Implementing Policy & Procedure

Establish policy & procedures Maintain thorough documentation Demonstrate consistency Balancing the Scale Communicate & educate Foster zero tolerance Respond to all complaints Investigate Implement corrective actions

R Reasonable Care: Establish sexual harassment policies and procedures and create a zero tolerance work environment. R Record: Document every particular of the complaint, its investigation, and corrective actions. R Respond: Do not delay investigating a complaint. Communicate the findings and corrective actions. Back to Basics the 3 “R”s

Anonymous. How Employers Can Defend Themselves Against Sexual Harassment Suits. (2008, October). Fair Employment Practices Guidelines,(641), 1,3.  Retrieved June 24, 2012, from ABI/INFORM Trade & Industry. (Document ID: 1592588111).   Associated Press (2008, March 14). Pentagon releases sexual harassment data. Msnbc.com. Retrieved from http://www.msnbc.msn.com/id/23636487/ns/us_news-military/t/pentagon-releases-sexual-harassment-data/#.T-Ys8XBcH5I   Berdahl, J., & Aquino, K. (2009). Sexual Behavior at Work: Fun or Folly? Journal of Applied Psychology. 94. No. 1, 34-47.   Dessler, G. (2012). Fundamentals of Human Resource Management, 2nd Edition . Upper Saddle River, NJ: Prentice Hall.   Enforcement Guidance. (1999, June). Retrieved from http://www.eeoc.gov/policy/docs/harassment.html   Greenwald, Judy, December 11, 2011. Best practices for confronting employee sexual harassment http://www.businessinsurance.com/article/20111211/NEWS07/312119985   Human resource industry partners. (2010). Retrieved from http://www.biddle.com/partners.php   Jennings, L.. (2009, November). Attorneys to operators: Policy not enough to avoid harassment suits. Nation's Restaurant News, 43(44), 4,33.  Retrieved from ABI/INFORM Global. (Document ID: 1927177011).   Khadaroo, S.T. (2012, June 15). Yale settles Title IX complaint, launches new sexual misconduct policies. The Christian Science Monitor.   O'Gara, Esq., W. (n.d.). Implementing a sexual harassment training policy and program. Pannone Lopes Devereaux & West LLS   Sorensen, Paul T. "A fresh look at employer liability for sexual harassment." Thomas M. Cooley Law Review Sept. 2010: 509-538. LegalTrac. Web. Tahmincioglu, E. (2011, November 1). Sexual Claims Common in Pressure-Cooker Restaurant World. Msnbc.com. Retrieved from http://bottomline.msnbc.msn.com/_news/2011/11/01/8565198-sexual-claims-common-in-pressure-cooker-restaurant-world?lite   Sramcik, T.  (2006, November). Heading off HARASSMENT. Aftermarket Business, 116(11), 80,82,84,86.  Retrieved from ABI/INFORM Trade & Industry. (Document ID: 1167156891). U.S. Equal Employment Opportunity Commission. (2011) Sexual Harassment Charges EEOC & FEPAs Combined: FY 1997 - FY 2011. Retrieved from http://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment.cfm   Walsh, D.J. (2010). Employment Law for Human Resource Practice, Mason, Ohio, USA: South-Western Cengage Learning. Why It's Best to Keep Records on Sex Harassment Complaints. (2006, December). HR Focus, 83(12), 2.  Retrieved from ABI/INFORM Global. (Document ID: 1173760971). References