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- @128 CHAP 5
-
- ┌───────────────────────────────────────────────┐
- │ SEXUAL HARASSMENT IN THE WORKPLACE │
- └───────────────────────────────────────────────┘
-
- The Clarence Thomas-Anita Hill drama. which replaced after-
- noon soap operas and kept millions of glassy-eyed Americans
- glued to the small, glowing boxes in their living rooms for
- several days in the fall of 1991, has brought the issue of
- sexual harassment to a new and heightened level of aware-
- ness among the public. While sexual harassment as such is
- not mentioned anywhere in Title VII of the federal Civil
- Rights Act, the Equal Employment Opportunity Commission
- (EEOC) and the courts have long accepted such harassment as
- being illegal and discriminatory. In addition, many states
- have adopted specific laws banning sexual harassment.
-
- Because this is now such a highly topical issue, many em-
- ployment law experts expect an upsurge in litigation invol-
- ving sexual harassment claims, so it behooves you to take a
- fresh look at your firm's policies regarding this subject.
-
- For a deeper discussion of the federal sexual harassment
- law and steps you can take to protect your firm from being
- sued for failing to take proper steps to prevent such acts
- from occurring, see Chapter 5.8 of our companion book,
- STARTING AND OPERATING A BUSINESS IN @STATE.
-
- Employers need to be keenly aware their potential liability
- for sexual harassment in the workplace, another increasing-
- ly significant area of the anti-discrimination laws, under
- Title VII of the Civil Rights Act. While, as noted, the
- federal Civil Rights Act does not specifically refer to
- sexual harassment as a form of discrimination, the courts
- and the EEOC have long defined it as such. Under the body
- of law that has been built up, there are two types of sex-
- ual harassment under Title VII, as it has been interpreted
- over the years:
-
- . One is sexual harassment of the type where "tangible
- job benefits" are granted or withheld based on an
- employee's receptiveness to unwelcome requests or
- conduct:
-
- ┌───────────────────────────────────────────────┐
- │ EXAMPLE: A male supervisor tells a female │
- │ employee to meet him at the swimming pool on │
- │ his sumptuous estate on a Saturday afternoon │
- │ to discuss a business contract. She refuses │
- │ to meet him at his place, and later receives │
- │ a bad rating from him for "bad attitude and │
- │ unwillingness to work weekends," which costs │
- │ her a raise or promotion. The female employee│
- │ in such a case has been denied a "tangible job│
- │ benefit" due to sexual harassment most likely.│
- └───────────────────────────────────────────────┘
-
- . The other type is sexual harassment involving a hos-
- tile work environment; that is, a situation in which
- the work environment is oppressive and is hostile to
- members of one sex, where such conditions either un-
- reasonably interfere with the individual's work per-
- formance or create an intimidating, hostile, or offen-
- sive environment. This type of harassment may not
- have any economic effects on the complainant, and
- management or supervisory personnel may not be in-
- volved. Even so, the employer who allows such a con-
- dition to persist may still be liable if management
- was aware of the harassment by co-workers (or even by
- customers) and fails to take appropriate actions to
- remedy the situation.
-
- ┌───────────────────────────────────────────────┐
- │ WHAT TO DO? Merely having a firm policy that │
- │ prohibits sexual harassment at your company │
- │ won't automatically stop such activity or pro-│
- │ tect the firm from liability if harassment oc-│
- │ curs, but the absence of such a policy makes │
- │ such conduct somewhat more likely to occur and│
- │ will also tend to strengthen an employee's │
- │ claim against you if your firm is sued for │
- │ allowing such acts to occur. │
- │ │
- │ SUGGESTED APPROACH: Adopt a sexual harassment│
- │ policy that not only prohibits such conduct, │
- │ but which also sets up a grievance mechanism │
- │ for employees who are victims of any such │
- │ harassment and communicate this company policy│
- │ strongly and clearly to your employees. │
- └───────────────────────────────────────────────┘
-
- Note that, in addition to federal civil rights case law, the
- statutes of many states, or the regulations of many state
- civil rights commissions, now specifically prohibit sexual
- harassment in the workplace, and some of these laws go well
- beyond the protections afforded under federal law.
-
- @CODE: CA
- Also, the California Government Code (Section 12940(h))
- expressly prohibits sexual harassment by employers and by
- others where the employer knows of the situation and fails
- to take immediate and appropriate action to correct it.
- Employers must take all reasonable steps to prevent sexual
- harassment from incurring, including verbal, visual and
- physical harassment, as well as unwanted sexual advances.
- @IF000CA]While you have no employees now, you will need to be highly
- @IF000CA]cognizant of these requirements, as a California employer,
- @IF000CA]if you do hire employees in the future for your business,
- @IF000CA]@NAME.
- @IF204CA]Since you have @EMP employees, these requirements are fully
- @IF204CA]applicable to @NAME.
-
- @CODE:OF
- @CODE: HI
- Also, the Hawaii State Civil Rights Commission interprets
- Hawaii's fair employment law to prohibit sexual harassment
- on the same basis as the EEOC rules. (Hawaii AR Sec.
- 12-23-59(a)-(f).)
-
- @CODE:OF
- @CODE: NM
- Also, the New Mexico Human Rights Commission considers sex-
- ual harassment to constitute sexual discrimination under
- the New Mexico Human Rights Act. Harassment includes un-
- wanted or repeated physical or verbal action to pressure
- an individual for sexual activity, including sexual advan-
- ces, contact, verbal or nonverbal suggestions, innuendos
- or ridicule. (NM RR Sec. I.A.27 a.1.)
-
- @CODE:OF
-
-