Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, April 4, 1993 TAG: 9304020403
SECTION: BUSINESS PAGE: F-1 EDITION: METRO
SOURCE: Sandra Brown Kelly
DATELINE: LENGTH: Long
KNOW WHEN YOU WEAR OUT YOUR WELCOME
Many people think of sexual harassment as a to-bed-or-get-fired issue. It's far more complex than that.Among the sexual harassment cases on file in U.S. District Court for the Western District of Virginia in Roanoke is one that alleges offenses including battery and intentional infliction of emotional distress.
The plaintiff, an employee of a New River Valley company, alleges she was struck on the "rear end" by one male employee and "cornered and embraced" by another.
She claims the company, its president, vice president and a manager created and condoned a hostile working environment.
She says they retaliated against her when she complained of sexual harassment. And because they knew their conduct was inappropriate, they intentionally inflicted emotional distress on her.
The woman is asking the court to grant her $800,000 in compensatory and punitive damages, in addition to paying her attorneys' fees and court costs.
The woman probably paid a lawyer $3,000 to $5,000 as a retainer just to have her lawsuit filed. And - whether or not a sexual harassment case has merit - it easily can cost a company $50,000 to $100,000 to defend itself against such charges.
Awards for compensatory and punitive damages can go as high as $300,000 for each charge. If a plaintiff claims that the offense inflicted emotional damage, the award can be unlimited.
A member of a conservative think tank said at a recent Hollins College program that if a woman finds herself in a hostile environment, she ought to quit her job.
"We vote with our feet," said Roger Pilon of the Cato Institute.
Pilon's point was that government has no place setting the standards of the private workplace and making employers responsible for the actions of others.
Individuals already have the right to sue each other and have the responsibility for their own lives, he argued.
Besides, he said, "Freedom requires tolerance of sleazeballs and bad people."
The problem is, Hollins President Margaret O'Brien pointed out to Pilon, most women aren't in the position to quit their jobs in protest.
Also, most sexual harassment cases so far involve complaints against male superiors by female employees.
The best protection for a company is for its management and employees to be able to recognize sexual harassment and not tolerate it.
There are two types of sexual harassment for which an employee can bring action under Title VII of the Civil Rights Act. They are generally referred to as "quid pro quo" and "hostile environment."
For an employee of a predator boss, "quid pro quo" - literally "this for that" - often translates as "sleep with me or lose your job."
Because of its indefensibility, quid pro quo conduct puts companies at the greatest risk of all examples of sexual harassment, says Roanoke attorney Clinton Morse.
But, such overt abuse of authority is not the most common type of harassment.
"The most common is the unintended, but upsetting and offensive, conduct," he said.
Examples:
Male and female strippers invited into the workplace for some special occasion.
A predominantly male staff meeting at which the male CEO gets up and says to the women in the room, "I hope this doesn't offend you" and then proceedes to tell a joke. The woman already has been offended before the joke began, Morse said.
This is the kind of conduct that creates a hostile environment. It "unreasonably interferes with an individual's job performance or creates an intimidating, hostile or offensive working environment, even if it leads to no tangible or economic job consequences," according to a paper written by Morse's colleague, Diane M. Baun.
Morse and Baun, who are in the labor and employment law division of the law firm of Woods, Rogers & Hazlegrove in Roanoke, have been in demand as speakers because of their experience with sexual harassment cases.
To make a point about how unaware some male executives are of the definition of sexual harassment, Morse tells a story of an executive he met several years ago when he was defending the executive's company against a discrimination suit.
Morse said the executive spoke at length about how sensitive his company was - and then yelled "Hey, Snake Hips" when he called his secretary to bring him a file.
"He just didn't see it," said Morse.
"If you know about it, you can stop it. That's the main defense. If managers understand and are sensitive, a company is on the way to solving the problems and avoiding lawsuits," he explained.
"Responsible companies have redoubled their efforts," he said.
But more vigilance could be in order.
When the Civil Rights Act was liberalized in 1991 to allow a plaintiff to have a jury trial and to seek punitive damages, it increased the financial jeopardy for companies who get taken to court. It also made sexual harassment cases more attractive to lawyers.
This could invite frivolous claims of harassment, which still will be costly to defend, the lawyers said.
It's not enough to just have a policy. Once a company gets a policy, it needs to make it known.
Morse said this can be done by posting the policy on bulletin boards, including it in an employee handbook, printing it occasionally in an employee newsletter, publishing a brochure or holding meetings about it.
The policy should state what route an employee can go with a complaint and should allow an employee to go to someone other than his or her supervisor, in case that is the person they want to complain about.
Once a complaint has been received, a company should act promptly to deal with it, lawyers say.
"It's not a difficult problem if you address it in forthright, plain terms," Morse said.
It doesn't mean the workplace has to be sanitized either, Baun said.
"Title VII doesn't preclude all sexual conduct, but `everything in moderation' " needs to be the rule, she said.
"Women as well as men need to be careful that they don't encourage conduct that goes over the line. When a woman feels she has been harassed, tell the harasser to stop."
Title VII defines sexual harassment as "unwelcome sexual conduct that is a term or condition of employment."
The key, she said, is the word "unwelcome."
\ A SAMPLE POLICY ON SEXUAL HARASSMENT
It is the policy of the company that there be no discrimination against any employee or applicant on the basis of sex. In keeping with that policy, the company will not tolerate sexual harassment by any of its employees.
Sexual harassment is a violation of the company's rules of conduct. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
Submission to the conduct is made either an explicit or implicit condition of employment;
Submission to or rejection of the conduct is used as the basis for an employment decision affecting the harassed employ; or
The harassment substantially interferes with an employee's work performance or creates an intimidating, hostile, or offensive work environment.
Any employee or applicant who feels he or she has been discriminated against due to his or her sex should report such incidents to his or her supervisor, personnel or any member of management without fear of reprisal. Confidentiality will be maintained.
In determining whether alleged conduct constitutes sexual harassment, the totality of the circumstances, the nature of the harassment and the context in which the alleged incidents occurred will be investigated. The personnel department has the responsibility of investigating and resolving complaints of sexual harassment.
The company considers sexual harassment to be a major offense which can result in the suspension or discharge of the offender.
\ Source: Woods, Rogers & Hazelgrove
Sandra Brown Kelly covers retailing and consumer-related issues for the Roanoke Times & World-News.