Sexual Harassment: Foolin’ Around Could Cost You Plenty

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Apr 13, 2015

“Ludicrous.” That’s what the U.S. District Court in Arizona wrote in the 1975 decision of Corne v. Bausch and Lomb, Inc. (390 F.Supp. 161, 562 F2d 55). It was ruling on a sexual harassment case, and stated:

[T]he only way an employer could avoid such charges would be to have employees who were “asexual.”

Times have really changed. Today the official comment might be, “Lucrative.”

We’re called regularly by owners who are faced with sexual harassment charges by the EEOC under Title VII of the federal Equal Employment Opportunity Act, state prosecution, or civil litigation. A few recent examples are:

1. A female recruiter told her male manager that she was pregnant. He was jealous of her boyfriend (the father) and told her to either get an abortion or get another job.

2. A female recruiter was instructed to perform sexual favors for a male hiring authority.

3. A male recruiter was not promoted to assistant manager because his female manager didn’t think he “fit the image” of the firm’s female name and identity.

These are among the telling, tempting, touching, and torturing incidents we hear about every day. They usually involve the submission to sexual advances or abuse in order to: 1. Be hired; 2. Receive a raise or promotion, or; 3. Continue working.

Sexual harassment claims are rapidly becoming the most actively prosecuted by the EEOC and state compliance authorities. The courts are jammed with them as well, and they’re invariably jury trials. Intentional infliction of emotional distress is the most common tort (civil) theory. However, assault, battery, false imprisonment and invasion of privacy are also successfully used. Proving any of them allows unlimited punitive (to punish) and exemplary (to make an example of) damages. Female dominated juries don’t need much to award them.

The law is still evolving in the sexual harassment area. Since male-female relationships are based on subjective, personal feelings, and since allegations are rarely substantiated by documentation, court decisions vary widely.

In most cases, the courts attempt to distinguish between acts that constitute unlawful employment practices, and personal, non-work related encounters. However, employers can become liable for personal acts of supervisors if an employee is fired for not consenting. In Brown v. City of Guthrie (22 FEP 1627) a U.S. District Court in Oklahoma upheld the employee’s claim that her supervisor’s “sexually oriented activities” became so unbearable she was forced to resign. Although it was technically a voluntary termination, the court held it was a constructive discharge — the same as if she was fired.

For this reason, the legal community anxiously awaited the 1986 U.S. Supreme Court decision in Meritor Savings Bank v. Vinson (477 US 57).

Mechelle Vinson was a teller with Meritor who engaged in sexual activity with Sidney Taylor, the bank’s vice president, over a period of several years. When she was fired for excessive absenteeism, she filed suit, alleging the sex had been a form of coercion, and that Taylor forced himself upon her, creating a hostile working environment and that the sexual harassment was a form of unlawful discrimination

The Supreme Court ruled that future trial courts are to determine whether sexual advances are unwelcome rather than merely voluntary. In doing so, it recognized that Ms. Vinson didn’t have to be physically forced to sleep with Taylor — it was sufficient that she did it to keep her job. The court also ruled that sexually provocative speech or dress was “obviously” relevant to determine whether the advances were “unwelcome.” The real disappointment to lawyers was that the Court didn’t address the issue of liability of the bank for the sexual harassment by a manager. Two theories are used to impose it:

The first is the quid pro quo theory. This follows EEOC guidelines stating that the employer is responsible for the acts of its managers if their position is used to require sexual favors. Under common law agency principles this is known as respondeat superior — let the employer answer for the acts of the employee within the “course and scope” of his employment. In these cases, the arguments usually surround the “ambit” of “course and scope.”.

The second is the hostile environment theory. This considers whether the employer “knew or should have known” about the adverse working conditions and failed to correct them. Unlike vicarious liability through an employee, the employer is directly liable by allowing the acts to take place. The only issue relates to the adequacy of its supervision.

Until court decisions become more uniform, we recommend that you distribute a memorandum precisely stating your policy with regard to prohibiting:

  1. Requests for sexual favors.
  2. Unwelcome sexual advances.
  3. Circulation or display of sexually explicit pictures.

The memorandum should also:

  • Encourage employees to immediately report any direct or indirect violations to management.
  • Inform employees that all complaints will be handled in the strictest confidence.
  • Assure employees that all complaints will be promptly, thoroughly and fairly investigated.
  • Pledge to correct any irregularities without delay (including protecting the victim against any retaliation).
  • Emphasize that you intend to prevent future incidents.

Sexual harassment isn’t ludicrous, it’s lucrative. In fact, foolin’ around is one of your most serious business risks.

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