Police department efforts to deter sexual harassment

USA Today (Society for the Advancement of Education), July, 1997 by Sally E. Heckeroth, A. Michael Barker

Police Departments across the nation have been taking a beating in civil rights lawsuits filed against them. These suits are not by members of the public alleging the use of excessive force, unreasonable searches and seizures, or reckless high-speed chases, but by members of their own departments based on complaints of sexual harassment or discrimination.

In St. Louis, a Federal jury awarded $176,000 to a former police dispatcher on her charges of sexual harassment and retaliation against members of the St. Louis County police department. In Kopfensteiner v. St. Louis Country, the jury found a police sergeant liable for sexual harassment and the county and three other officers, including the chief of police, liable for retaliation in violation of Title VII of the 1964 Civil Rights Act and the Missouri Human Rights Act. Although the plaintiff's claim for back pay and benefits amounted to just $1 1,000, the jury awarded her $165,000 in compensatory damages.

On the other hand, in Rouse v. City of Milwaukee, a Federal court granted summary judgment to the city and a police captain, dismissing two female police officers' complaints of sexual harassment under Title VII. This ruling came despite the fact that the city conceded, for purposes of the motion, that a hostile environment existed.

How can these divergent outcomes be accounted for? To a large degree, a well-written sexual harassment policy, if properly and consistently implemented, can make all the difference. According to the courts, the City of Milwaukee Police Department, pursuant to its sexual harassment policy, responded promptly to the female officers' complaints and acted in a manner reasonably calculated to end the harassment, while the St. Louis County police department did not. Thus, as these cases illustrate, the best defense to a sexual harassment or sex discrimination lawsuit actually is mounted long before litigation ever is filed.

In the best of circumstances, an employer's effective sexual harassment policy can prevent a lawsuit. Failing that, it can present a powerful defense and deter liability. A comprehensive sexual harassment policy requires, however, both defense counsel and the police department client to plan and act collaboratively far in advance of any possible problem or complaint by drafting a workable policy and, once instituted, following and enforcing it on a consistent basis. In doing so, police departments must examine themselves with a fresh view to eliminate what the Third Circuit Court has referred to as "the ambiance of a 19th-century military barracks" (Andrews v. City of Philadelphia)

Courts have identified two types of unlawful sexual harassment. In quid pro quo harassment, a tangible job benefit, such as a promotion or a raise, is conditioned on submission to unwelcome sexual conduct or requests. In hostile environment harassment. the workplace has become oppressive or offensive to the employee because of severe or pervasive unwelcome behavior based on the sex of co-workers, supervisors, or customers. The extent to which an employer may be held liable for sexual harassment depends largely upon who commits the behavior in question and its type. An effective sexual harassment policy can provide a defense to both quid pro quo and hostile environment harassment, protecting against claims brought under Title VII or under Title VII-modeled state anti-discrimination statutes.

Courts, guided by the Supreme Court's pronouncement in Meritor Savings Bank v. Vinson, along with lower court rulings in Boulton v. BMW of North America and Craig v. Y&Y Snacks, routinely have held employers strictly liable for quid pro quo harassment if the harasser had the actual authority to alter the victim's work conditions, even in instances where the employer had no knowledge of the harassing behavior. In some circumstances, employers have been held liable for their employees' wrongful acts outside the scope of their employment.

Although the Supreme Court in Meritor declined to issue a definitive rule on employer liability under Title VII, it did reject the position that employers are strictly liable for sexually hostile work environments. The Court also indicated that an in-place sexual harassment policy could help shield an employer from liability if it encourages victims of harassment to come forward and is designed to remediate the harassing behavior. It now has fallen to the lower courts to define the parameters of employer liability under Title VII for a sexually hostile work environment.

Courts generally have imposed Title VII liability for hostile environment sexual harassment if the employer knew or should have known about the harassment and failed to take prompt and reasonable remedial action to correct the situation. Thus, a sexual harassment policy that provides a readily accessible grievance procedure to the victim and quickly stops the harassment can insulate an employer from Title VII liability for hostile environment claims. Because such a policy eliminates any actual or apparent authority a harasser otherwise might possess, it may provide a defense against claims of quid pro quo harassment as well.