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The gray areas of sexual harassment.

Nov 1, 1995 12:00 AM

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We all have seen the typical articles on sexual harassment - the government definition of it; the basic elements in a sexual harassment policy; what to do during an investigation. However, consultants tend to steer away from certain sexual harassment issues. The following discussion addresses these controversial points and offers some basic guidance.

Is same-sex harassment covered under the law? While some lower courts are split on whether there is a valid claim of sexual harassment in these cases, some appeals courts have said "harassment is harassment." Printers should do the same. In some states and local jurisdictions, same-sex harassment already has been addressed legislatively.

What is the difference between "submission" and "unwelcomeness?" Just because a person submits to requests or demands of a sexual nature does not mean the requests or demands are welcome. When remarks or demands are unwelcome, the act becomes sexual harassment.

What is the difference between "unwelcomeness" and "offensive?" Plaintiffs are not required to prove unwelcomeness and offensiveness to prove sexual harassment has occurred. While people may not find pictures and remarks offensive, they may consider them unwelcome in light of the employment context.

Exactly what is "unwelcomeness?" To have a claim, plaintiffs must communicate that such conduct or advances are unwelcome. Actual participation in such conduct does not make it welcome.

Can supervisors be held personally liable for sexual harassment? While the law and federal courts do not address individual liability, some states do. Check with your local legal counsel to determine your state's law.

Can those accused of sexual harassment and cleared of any wrongdoing file a defamation suit against accusers? Generally, employees must feel they can bring claims or charges without fear of retaliation. Such a defamation suit could be considered retaliation, but it can happen.

What about touching another person? If your firm never has had a problem with touching, a specific policy addressing it may be overkill. If your business has had a problem in which individuals felt being touched was unwelcome, a policy of "a light touch on the shoulder to get the person's attention is acceptable" may be in order.

Are pinups, drawings and sexual slurs forms of harassment? Pinups and drawings, even in private places such as bathrooms, lockers and offices have been found repeatedly to contribute to hostile work environments. Employers are responsible for all areas of the work environment, and therefore should ensure such material is removed from the premises.

Does printing questionable material for customers create a hostile environment? This issue has been addressed previously in court. Printers have a right to run their own organizations and printing such material may be a business necessity. However, some material could cause problems in terms of morale and claims.

Before bringing in questionable projects, survey employees who would be working on them to discern their feelings. Then, transfer or rotate shifts or persons who object severely and make the job off limits to non-essential personnel. Plus, organizations should conduct annual sexual harassment training and have a written sexual harassment policy on file.

Encouraging teams or departments to talk about sexual harassment during staff meetings helps bring acceptance to the job and creates peer pressure for troublesome employees. Also, don't forget to enforce your policy.

Is there a difference between a "reasonable person test" and "reasonable woman test?" The Equal Employment Opportunity Commission (EEOC) officially takes the perspective of investigating claims on the "reasonable person test," which considers the context in which the alleged harassment took place, as well as the victim's perspective. The ninth Circuit of Appeals, as well as Florida and New York, specifically have used the "reasonable woman test" in hostile environment cases. The courts consider whether the action would be considered frightening and "weird" from a female perspective. The different views can be dramatic when considering the company culture of some organizations.

What about third-party harassment cases? Salespeople, delivery people, board members and vendors all are potential harassers of employees. The EEOC requires companies to investigate and take action for third-party harassment of employees.

Are isolated instances of harassment covered under the law? Hostile environment claims usually require a pattern of offensive, unwelcome conduct. However, a single incident, such as assault, could warrant a claim of harassment due to its severity. Many courts have ruled that one incident in which no harm was done does not warrant a sexual harassment verdict.

Are firms liable for off-duty harassment by employees? If supervisors harass subordinates off-duty and off-premises, and threaten to fire them if they do not give in to advances, supervisors are acting within their scope of employment, and companies can be liable. If no threat is implied, but the harassment is ongoing, then harassment still may be found by the courts.

How should you handle sexual favoritism in the work environment? The EEOC says favoritism that adversely affects employment opportunities of third parties (others in the office) is harassment. However, the law does not prohibit isolated instances or preferential treatment based on consensual romantic relationships. However, if the relationship is coerced, then it is harassment.

Should organizations address office romances? Here are some statistics:

* A 1994 Fortune magazine survey of 200 CEOs found that 75 percent of respondents believed office romances are "none of the company's business." Fortune also reported that 50 percent of CEOs have more married couples in their corporations than they did 10 years ago.

* 80 percent of employees have observed or been in office romances.

* Today's workforce is almost 50 percent female.

* The age of individuals has increased for first marriages.

* People work longer hours today.

* The younger culture generally accepts office romance.

* Two-thirds of workplace couples try to keep their relationships a secret.

* A 1991 Society of Human Resource Management (SHRM) survey found that 92 percent of HR professionals had no office romance policy in place.

On the positive side, office romances can increase productivity, raise employee morale and enhance creativity. Several variables should be considered before instituting a policy on office romance, such as company culture, existing employees in relationships or marriages, experience with divorced co-employees, previous problems with a sour office romance, confidentiality (pillow talk) and favoritism. In addition, the dangers of office romance can include hierarchical romances, extramarital affairs, sour breakups and low employee morale.

Organizations at least should ban supervisory/subordinate relationships and extramarital affairs, and consider banning intradepartmental dating. Plus, corporations should ensure affections are kept at home.

When printers face complex issues such as sexual harassment in real-life situations, legal consultation should be sought. Depending on local and state jurisdictions, definitions and liabilities can vary from city to city and state to state. Therefore, the best prescription to prevent such problems is education, training and sound business practices.

BRIAN W. GILL, Senior vice president of education and human relations, Printing Industries of America, Alexandria, VA