When I was a young lawyer, I thought nothing of it when my male supervisor chose to tell me of his sexual prowess with his wife or when the male attorneys gathered in his office to review his compilation of bawdy cartoons. But I did mind several years earlier when I was right out of college and the older, married director of my workplace began stopping by my desk to ask how I was, while standing over me so that his body blocked me from moving. I was too low in the chain for him to have any business interest in how I was doing and his reputation for selecting new female staff members for attention was well-known. Fortunately, a brave group of women went above his head to complain as a group and the inappropriate attention came to a halt. That was in 1973.
There are still people though who do not understand proper workplace behavior, as well as people who believe an erroneous myth that any lewd joke is a legal cause of action.
Five years after the first woman was appointed to the United States Supreme Court, in 1986, the case of Meritor Savings Bank v. Vinson was decided. It established that sexual harassment is a violation of Title VII, the Civil Rights Act of 1964. More than twenty years after that decision, workplaces have been altered forever and mostly for the better. There are still people though who do not understand proper workplace behavior, as well as people who believe an erroneous myth that any lewd joke is a legal cause of action. The tension between those two groups means that sexual harassment is still a fertile ground for lawsuits. Because Title VII applies to the courts in their role as employers, it is also one of the few significant areas in which the court is exposed to liability as a potential defendant.
Simplifying the current law on sexual harassment to its essence, unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitutes sexual harassment when it affects the conditions of employment and creates an abusive environment. There are many qualifications to this broad definition, such as whether the conduct is offensive to both the individual and to a reasonable person, the community standards, the frequency of the conduct, the severity of the incidents, and whether it actually interferes with work performance. When the sexual harassment comes from a peer, the employee victim has the responsibility of reporting the harassment before there can be any liability to the employer. When the conduct rises to the level of actionable sexual harassment and it is by a supervisor, the employer is liable unless the employer has exercised reasonable care to prevent and correct any sexual harassment.
As part of the employer’s duty to exercise reasonable care, it is crucial that the employer have a published policy for employees on how to report sexual harassment. The keys to a good policy for reporting are:
- Actual Distribution. The best policy is worthless if the employees don’t have a copy. The best practice is to distribute the policy individually to employees and have each one sign an acknowledgement that the policy was received.
- Easy to Access. Whatever your report mechanism, it should be one that employees find easy to access. The person designated to receive complaints must be someone who is readily accessible. This also means the policy needs to be reviewed and updated to insure its continuing accessibility.
- Multiple-means of reporting. If the person designated to receive complaints is the offender, there must be an alternative person designated so that there is a way to report any offense. This also helps in the event that the designated person is unavailable for an extended time, such as a medical leave.
- Confidentiality clause. The policy should have language assuring that the complaint will be kept private, except when revealing information that is necessary to conduct an effective investigation.
- Promise of No Retaliation. If the policy implies that there may be consequences for reporting a false complaint, employees will be reluctant to report possible violations. It is better to receive inconsequential complaints, than to miss serious concerns. Employees need to know that there will be no negative consequences if the policy for reporting is followed.
An appropriate complaint mechanism goes a long way towards protecting your employees from an unacceptable work atmosphere and in protecting you from liability for behavior that may be unknown to you.
As always, if you need assistance with drafting a policy, handling a complaint, or any other concerns which relate to this issue, call your friendly legal advisor on employment law at (317) 234-3936 or email her at