How to deal with sexual harassment - includes related information on sexual-harassment policy ingredients

Nation's Business, Dec, 1991 by Robert T. Gray, Donald H. Weiss

Few workplace issues ever seized national attention as forcefully as did sexual harassment this past fall.

In varying degrees, employers and employees became more aware of both the issue itself and of the responsibilities that relevant laws put on them for compliance.

The official proceedings at which sexual harassment gained this unprecedented visibility concluded many weeks ago. Clarence Thomas has now heard his first cases as a justice of the U.S. Supreme Court. Prof. Anita Hill, whose charges of sexual harassment against Thomas were rejected by the U.S. Senate in its vote to confirm him, is back in her law-school classes. But the impact of their clash will be felt by companies far into the future.

Employers with policies for dealing with sexual harassment are reviewing their adequacy, and those without them are urgently seeking legal advice on how to develop and implement such policies.

Many are learning in the process that their long-held views of what constitutes sexual harassment are woefully out of date in today's legal and cultural climate.

The best way to put this complex issue into focus is to consider it in the logical sequence of past, present, and future.

A look at the past shows that, despite its explosion into the national consciousness over a few days in October, sexual harassment evolved as a workplace issue over the past quarter-century. The legal prohibitions against such harassment originate in the federal Civil Rights Act of 1964, which applies to companies with more than 15 employees, and in state civil-rights and fair-employment laws that have differing applications in terms of company size.

Sexual harassment as perceived today was not initially a target of those laws, which were generally aimed at preventing discrimination on the basis of race, sex, color, religion, ethnic origins, and other factors. To the extent that anti-discrimination laws applied to the workplace, they were invoked mostly in regard to hiring, firing, and promotions.

"Under federal and most state laws, sexual harassment is explicitly prohibited," explains Stephen Bokat, vice president and general counsel of the U.S. Chamber of Commerce. "The statutes generally do not say, 'Thou shalt not sexually harass.' The prohibition on sexual harassment arises from the prohibition of discrimination based on someone's sex. If you sexually harass a female or male member of your staff, presumably you are doing so because of their sex--because they are male or female."

The law's view of such discrimination as "disparate treatment" brought sexual harassment under the same prohibitions that apply to other forms of discrimination. As that recognition developed, the behavior most often challenged under the law was "quid-pro-quo harassment." This occurs when a supervisor demands sexual favors from an employee in exchange for economic considerations such as a promotion, a raise, or continued employment.

The definition of what is and isn't permissible underwent a major expansion in a landmark case decided by the U.S. Supreme Court in 1986. That court recognized what is known as "hostile-environment harassment"--any on-the-job sexually oriented activity that creates a hostile or offensive working environment but does not involve economic factors.

That decision remains the Supreme Court's most significant pronouncement to date on sexual harassment because it created the framework in which employers must address this issue today.

The official definition of sexual harassment under relevant laws and court decisions is summed up this way by the Equal Employment Opportunity Commission (EEOC):

"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when:

"1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment.

"2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individuals.

"3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."

How can a company avoid problems stemming from actual or alleged sexual harassment in its work force?

Bokat recommends establishment of a formal policy that:

* States clearly that sexual harassment will not be tolerated in the workplace;

* Sets up procedures for dealing internally with complaints promptly, thoroughly, and fairly;

* Provides for training programs to ensure that all employees understand what constitutes sexual harassment and the employer's plans for dealing with it.

Bokat also recommends that the policy make provision for lodging complaints with someone other than an immediate supervisor in the event that supervisor is the alleged harasser. And female employees should be able to file complaints with another female if that makes them feel more comfortable, Bokat adds.

"If every employer in America has a program like that--and many already do--employees will feel assured that their complaints will be taken seriously and resolved quickly," Bokat says. He adds that the policy should cover all employees "because men can be harassed also."