One of the common misconceptions about sexual harassment is that business owners are protected against liability so long the supervisors or managers avoid making sexual advances against an unwilling subordinate. Employers think that they are insulated from suits so long as this traditional form of sexual harassment is avoided in the workplace. This is the mistake often committed by employers. Nowadays, the scope of sexual harassment has been expanded by law and by the Supreme Court so as to include lawsuits by subordinates who willingly submitted to the sexual advances of his or her superior. Nowadays, giving of jokes loaded with sexual meaning is already considered sexual harassment. Office flirtatious or sexually suggestive stare by a co-worker against another co-worker are also considered sexual harassment.
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Another source of liability for employers is when their sexual harassment policies fail to comply with the due process requirement under the Fifth Amendment. Companies and even universities often commit the mistake of preparing sexual harassment policies that go against the rights of the party being complained about sexual harassment. One of these universities is that the Southern Illinois University Carbondale. It is worth stressing that even schools and universities are not insulated from sexual harassment complaints. In the case of Franklin v. Gwinnett County Public Schools (503 US 60), the Supreme Court has stated that individual students may ask for monetary damages from their schools and their school officials for violating their civil rights if they are victims of sexual harassment or other forms of sex discrimination.
According to a history professor who complained about the sexual harassment policy in the Southern Illinois University Carbondale, the university’s sexual harassment policy is defective because it was not properly communicated to the members of the faculty. It also does not require an oral or written notice of the sexual harassment charge, an explanation of the evidence, an opportunity to be heard and a pre-termination hearing.
Based on Supreme Court decisions, it is indispensable that sexual harassment policies must be communicated by the company to all its employees which include the rank and file, supervisors and even the managers. For the Supreme Court, it does not suffice that the company has a written, comprehensive and detailed sexual harassment policy but it must also be communicated and explained to all employees. This was the mistake of the City of Boca Raton in the case of Faragher v. City of Boca Raton (524 US 775). In this case, Beth Ann Faragher worked as an ocean lifeguard for the City of Boca Raton. Faragher claimed that two of her supervisors, Bill Terry and David Silverman, sexually harassed her by making offensive comments of a sexual nature and engaging in unwarranted touching of her body. At that time the city had already adopted a sexual harassment policy but it failed to distribute the policy to the lifeguards and their supervisors. According to the Supreme Court, although the city can raise affirmative defenses to exculpate itself from liability, no affirmative defense is available because there was proof that the city had entirely failed to disseminate its sexual harassment policy among its beach employees and that its officials made no attempt to keep track of the conduct of its supervisors. Thus, the Supreme Court ruled that the City did not exercise reasonable care to prevent supervisor’s harassing conduct.
Communication of sexual harassment policy must be made a company policy. It must be made in such manner that the employees shall take the policy seriously such as by means of memos, newsletters, handbooks and bulletin boards.
For example, the company should give explicit warning to the employees either through memos, newsletters or handbooks to refrain from telling jokes that have the sexual connotation, posting suggestive photographs, referring to female employees as “girls”, requesting sexual favors from co-workers, engaging in any kind of unwelcome sexual advances to the employees. It bears stressing that there may be cases when the employees concerned may not have malice in making the acts covered in this example but without their knowledge, they may already be violating sexual harassment laws. Informing the employees will give the company sufficient weapon against suits for sexual harassment.
Another defect in the university’s policy is that it fails to give the person complained against the opportunity to be informed of the sexual harassment charge and to respond to it and be able to present evidence to refute the charge. This is the essence of a grievance procedure. It would seem however that the Southern Illinois University Carbondale does not understand the importance of grievance procedure and the due process. According to Marvin Zeman, president of the Faculty Association, the university’s sexual harassment policy does not give the respondent the opportunity to challenge his accuser. The respondent is also deprived of his opportunity to know the identity of this complaining party, the date, and place of the commission of the crime and the details of the crime itself as these details are kept in secrets. Moreover, the university’s sexual harassment policy allows the third-party sexual harassment complaints where a non-harassed individual may accuse another of a wrong inflicted to another individual although proof may be lacking.
In addition to the requirement of communication with the employees, companies and universities are also required to have a grievance procedure in place where all sexual harassment complaints are filed and heard. The grievance procedure is the company’s internal mechanism by which they attempt to investigate and address the sexual harassment complaint. On the part of the complaining party, the grievance procedure gives him the opportunity to formally charge the respondent. On the other hand, the grievance procedure gives the respondent the opportunity to meet the complaining party, respond to the charge and present his own evidence in refutation of the charge against him.
This defect can be cured by including in the sexual harassment policy a procedure for filing the complaint about sexual harassment. The procedure shall include the formation of an independent committee which shall be tasked to hear all complaints about sexual harassment. The members of the committee should also be identified in the policy. The procedure shall also provide for the manner of filing the complaint about sexual harassment, the schedule of hearing, presentation of evidence and the procedure for filing a request for reconsideration or an appeal.
Sexual Harassment is a complex legal issue in the workplace. On the part of the employer, existing jurisprudence now imposes upon them liability should they fail to prevent sexual harassment or should they fail to intervene in case sexual harassment takes place within the company. Financial liability and reputational risk are at stake in sexual harassment complaints, especially in cases where universities are involved. It bears stressing that even professors, coaches, school administrators in educational institutions may be held liable for sexual harassment. It can be very damaging for a college or university to be dragged into this case.
On the part of the employee, victims of sexual harassment usually experience decreased job satisfaction, low productivity, low organizational commitment, and weak physical and mental health. It is therefore in the best interest of both the employer and the employee to be able to prevent sexual harassment or address this issue immediately in case this happens in the workplace.
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