Sexual Harassment

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Not Just In Hollywood Or In Congress

Over the last few months, the country has certainly seen a significant renewed focus on the issue of sexual harassment in the workplace. Many would have said that the problem wouldn’t spread to the self-storage industry, but just as quickly a story was released about a self-storage operator in Oklahoma who was accused of sexual harassment against seven woman who were his tenants.

Sexual harassment is a form of sex discrimination as outlined under Title VII of the Civil Rights Act of 1964. There are two recognized forms of sexual harassment; one being a type of “quid pro quo” scenario where a supervisor demands a subordinate tolerate sexual harassment as a condition of keeping their job (or tenancy). The second is the existence of a hostile or abusive work environment where conduct can be either verbal or physical, is frequent, and is improperly tolerated.

From a legal perspective the discussion should be about workplace education and training as well as proper procedures for reporting claims and managing the investigation and discipline regarding such claims. The business liability exposure to these claims is such that not only can the perpetrator be liable, but the company can as well, depending on what the company knew about the conduct and what it did to stop the harassment. Companies must have a sexual harassment policy in place for their business, no matter what the size. Although only companies with fifteen or more employees are subject to the federal laws for Title VII claims, smaller companies may still be held liable under applicable state laws relating to sexual harassment liability. There must be sufficient training relating to sexual harassment so that employees can be educated about proper behavior in the workplace as well as the procedures in place in case an incident occurs.

The EEOC’S Guidelines encourage employers to take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned. An employer’s anti-harassment policy should make clear that the employer will not tolerate harassment based on race, sex, religion, national origin, age, disability, or genetic information, or harassment based on opposition to discrimination or participation in complaint proceedings. The policy should also state that the employer will not tolerate retaliation against anyone who complains of harassment or who participates in an investigation. An effective preventive program should include an explicit policy against sexual harassment that is clearly and regularly communicated to employees and effectively implemented. The employer should affirmatively raise the subject with all supervisory and non-supervisory employees, express strong disapproval, and explain the sanctions for harassment. The employer should also have a procedure for resolving sexual harassment complaints. The procedure should be designed to “encourage victims of harassment to come forward”, and should not require a victim to complain first to the offending supervisor. 

It is recommended that, if an employee believes that he or she has been subject to sexual harassment, the situation should first be addressed with the harasser, if possible. If that does not suffice, the employee should be able to report the incident to their supervisor or to the appropriate human resource representative. Claims and witness statements should also be prepared in writing, and all inquiries and investigations should be treated confidentially. Once reported, the company must expeditiously investigate the matter, including seeking the cooperation of the police if the matter is criminal.

If the employee does not obtain a sufficient remedy after reporting the harassment, they must be given the right to pursue their claims with the EEOC, without the risk of retaliatory treatment. It makes sense to wait to see if the company corrects the harassment behavior before an employee files a charge with the EEOC. However, if management does not act promptly to investigate a complaint and undertake corrective action, then it may be appropriate to file a charge. The deadline for filing an EEOC charge is either 180 or 300 days after the last date of alleged harassment, depending on the state in which the allegation arises. This deadline is not extended because of an employer’s internal investigation of the complaint.

Finally, employees who violate the sexual harassment policy must be subject to appropriate discipline, including the risk of termination.

Scott Zucker is a partner in the law firm of Weissmann Zucker Euster Morochnik & Garber, P.C. in Atlanta, Georgia.

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