Page 687 - Encyclopedia of Business and Finance

eobf_S 7/5/06 3:21 PM Page 664

Sexual Harassment

ment is actionable (victims can sue and liability can be PREVENTION AS SOLUTION
found) even when the people involved are of the same Since prevention continues to be the best approach to the
gender. sexual harassment problem, the courts consider the
In Davis v. Monroe County Board of Education (1999), actions employers take prior to claims being filed. For
the Supreme Court addressed student-on-student sexual employers who wish to make their workplaces free of sex-
harassment in academic institutions receiving federal ual harassment, various legal and human resources experts
funds. The ruling indicated that behavior could be action- recommend the following strategies:
able under discrimination law if the behavior was so
1. Have a written state-of-the-art policy on sexual
severe, pervasive, and objectively offensive that victims
harassment that explains, in easy-to-understand
were denied equal access to education as guaranteed by
terms, what behavior is prohibited. Include specific
Title IX. Key to the liability issue was whether those in direction related to appropriate e-mail and Internet
authority were deliberately indifferent to the acts of use. Inform all employees that all messages sent,
harassment and whether the harasser was under the received, or stored in the e-mail system are business
school’s disciplinary authority. property. Also explain that the employer is entitled
In Pennsylvania State Police v. Suders (2004), the to review, monitor, and disclose the stored informa-
Court ruled that an employee facing a situation in which tion. Prior to issuance of the policy, obtain a legal
a “reasonable person” would have felt compelled to resign review of the proposed policy. Once the policy is
could bring suit regardless of whether that employee had approved, make sure the policy is posted and dis-
filed a report with the employer before resigning. The rul- seminated to all supervisors and employees, prefer-
ing also indicated, however, that an accused employer ably on an annual basis.
could use the person’s failure to file a report, along with 2. Commit to the policy at the highest levels. Affirm
evidence of formal policies to prevent harassment, in its that employees perceive this issue as important to
defense. If the employer could prove that the employee the company’s top managers and to all levels of
had not attempted to prevent the harassment, and that supervision.
safeguards for prevention were in place, the employer 3. Develop an internal complaint process that ensures
would not be liable.
confidentially and that has multiple access points,
not just to the employee’s supervisor. Identify
E-MAIL AS EVIDENCE OF SEXUAL management-level personnel of both sexes that are
HARASSMENT available to those who wish to complain. In some
The majority of workplaces use technology, specifically e- instances, employers have not been found liable if a
mail, to conduct some portion of business activity. While complaint process was in place and employees failed
technology has enabled employees to work faster and to use the policy.
more efficiently, e-mail has brought a new risk level to 4. Investigate complaints promptly and thoroughly,
organizations. Many sexual harassment suits are now maintaining confidentiality as much as possible.
based primarily on evidence of allegedly inappropriate e- Assure swift action to investigate; courts have found
mail messaging and other Internet uses. In a 2001 survey companies liable for sexual harassment in part
of major companies in the United States, 10 percent because they took too long to conduct the investiga-
reported having responded to a subpoena for employee tion. Maintain a firm nonretaliation policy for those
e-mail. One-quarter of the firms surveyed indicated complaining or providing information in an investi-
that they monitor their employees’ e-mail via keyword gation.
or phrase searches. The monitoring typically focuses on 5. Conduct high-quality training, including refresher
sexual-related or offensive language. training, on antidiscrimination and antisexual
In the area of e-harassment, trends that have emerged harassment policies and practices for three groups:
in various rulings include the following: (1) courts have employees, managers, and supervisors. The training
been generally less sympathetic in supervisor to employee must define responsibilities for members of each
(as opposed to employee to employee) e-harassment; (2) group and cover the company’s sexual harassment
courts have differentiated between isolated versus contin- policy and complaint procedures. Keep records of
uous incidents; and (3) some employers have successfully such training as tangible evidence of the company’s
established a defense when reasonable care had been exer- good faith efforts to eliminate sexual harassment.
cised to prevent and correct inappropriate use of technol- 6. Conduct physical assessments of work areas such as
ogy to harass. factory floors, warehouses, and remote offices.

664 ENCYCLOPEDIA OF BUSINESS AND FINANCE, SECOND EDITION