Employers Urged To Review Policies On Sexual Harassment

Employers Urged To Review Policies On Sexual Harassment
Date: October 1991

The recent firestorm surrounding the confirmation of Judge Clarence Thomas as an Associate Justice on the United States Supreme Court, and the accusations leveled against him by Professor Anita Hill, have brought the subject of sexual harassment to the forefront of the American workplace. This article will inform employers of steps they should take in order to eliminate sexual harassment from the work environment, thereby minimizing liability should accusations be brought.

Sexual harassment is regulated by a complex scheme of federal and state laws. All employers, even those with just one part-time employee, are subject to the laws in this area.

There are two forms of sexual harassment: “quid pro quo” and “hostile environment.” The sexual harassment accusations brought by Professor Hill fall into the second category, a “hostile environment.” A hostile environment exists when unwelcome sexual conduct, whether directed at one individual employee or not, creates an intimidating, hostile, or offense working environment. Under the umbrella of a “hostile environment,” an employer may be held liable for the actions of a co-employee or even a third party, such as a delivery person or customer — if the employer is aware of the situation and allows it to continue. The other type of sexual harassment is “quid pro quo” sexual harassment. In that type of harassment, an employee’s submission to, or rejection of, such harassment is used as the basis for employment decisions concerning the individual. For example, conditioning a promotion on the initiation of a sexual relationship would constitute this other type of sexual harassment.

An employer’s most effective way of keeping sexual harassment out of the workplace is through education of its supervisors and employees, and implementation and enforcement of precise policies forbidding all forms of harassment. A comprehensive employer policy forbidding harassment in the workplace should include the following:

A definition of harassment which includes examples of prohibited behavior.
An explanation of the responsibilities of the employer’s supervisors in implementing and enforcing the policy.
A discussion of the responsibilities of employees who became aware of harassment against either themselves or co-workers.
A clear explanation of possible disciplinary actions the employer may take against any supervisor, representative, or employee who violates the policy, up to and including discharge.
A procedure for employees to complain about harassment, followed by the employer’s prompt investigation of the complaint.

Mere implementation of such a policy is not enough, however. An employer must actively enforce its anti-sexual harassment policy. In the event a complaint is brought by a current or former employee, evidence that an effective policy was in place at the time of the alleged incident, and that prompt and appropriate remedial action was taken when the incident was brought to the employer’s attention, will likely reduce an employer’s liability. Above all, an employer should use common sense when dealing with its employees in this volatile area.

For further information on sexual harassment in the workplace, and employer policies and practices in this area, please contact our Labor Department at (310) 858-7700.

Our Labor Department represents employers in wrongful termination and employment discrimination cases in state and federal courts. The department also represents employers in collective bargaining negotiations, arbitrations and matters before state and federal administrative agencies. In addition, we provide general labor counseling on unionization, personnel policies, grievances and wage and hour issues.

Return to top