Sexual Harassment Prevention: How to Stay Out of Court and Out of the Headlines

By: Murray Brookman

Prior to 1976, there was not even a word for it. There was no law about it. Victims did not know what to call it.

They only knew how they felt: uncomfortable, embarrassed, humiliated, frightened, bewildered, and even guilty. Finally, in 1976, there was a word for it: sexual harassment. And in 1980, there were guidelines published by the Equal Employment Opportunity Commission.

Today, everyone knows the word; everyone knows there are guidelines and they know about the costly consequences to disregarding the guidelines. From the President of the United States to employees in organizations in Anytown, USA, the message is clear: Companies that hope to stay out of court and out of the headlines must adhere to a set of guidelines that are seldom easy to implement.

After all, despite the book suggesting that men come from Mars and women come from Venus, all men and women come from planet Earth and that is enough to create some real dilemmas. Consider the United States with its myriad sub-cultures and the values each culture brings into the workplace. Consider the messages transmitted by the larger culture, where sexuality is exploited in numerous ways, from explicit videos to mysogynistic lyrics, from magazines to advertisements, from cartoons to pornographic websites – and beyond.

Add to this the fact that the United States affords a wide array of social freedoms supported by the First Amendment. For some employees, the idea that the workplace does not afford those same freedoms comes as something of a surprise. It can be hard for harassers to understand that their language, their gestures and their jokes are inappropriate in the workplace. And it can be hard for some to confront the harasser or ask for help from designated professionals.

Regardless of why some people behave inappropriately, the law holds organizations responsible for providing a harassment-free environment whether it knows or should have known sexual harassment is alive and unwell in its workplace (and on other sites if the employee is involved in company-related business). A tough standard indeed. After all, how can the company know if it doesn't know? (The company can know by looking at its culture as a whole. For example, if it tolerates crude jokes, suggestive "compliments," and “raunchy” screen savers, it should not come as a surprise when someone is pinned up against a wall or way-laid in the parking lot. That is what the company should have anticipated and should have known.)

Here, then, are some of the ways that your organization can be proactive, can stay out of court and out of the headlines; by being certain that you:

Have a working familiarity with both the letter and spirit of federal and state laws, which have as their fundamental principle, the right of every person to be treated with respect and dignity.
Provide a comprehensive Policy and a clear set of Procedures that are distributed to every employee at point of hire, and that they are updated, distributed and trained annually.
Acknowledge the magnitude of the sexual harassment issue that some experts have called "pandemic," a worldwide malaise with enormous costs in human and financial terms.
Lose even when you win in court; you lose in terms of morale, productivity, benefits, employee turnover, retention, and the cost of conducting internal investigations.
Beware of physiological blindness; the human phenomenon that makes it virtually impossible to recognize aspects of one's own culture because it is so familiar, therefore what is inappropriate can seem perfectly appropriate.
Be prepared for resistance when changes in behavior are required; in fact, the more employees enjoy working in a company, the more they will resist changes that must be made.
Educate an adequate number of managers and employees to serve as investigators to assure that there will always be more than one person on hand should a situation arise.
Do not allow managers to conduct investigations unless they have been trained how to do so; remember, the manager who responds inappropriately can land the company in court.
Recognize differences in male and female perspectives; although there are differences within each gender, there are greater differences between the genders when it comes to sexual harassment.
Encourage managers to conduct departmental analyses to determine whether they tolerate (or even encourage) "ghetto" staffing; whether there are legitimate business reasons for this, and whether this may have a negative impact on employees.
Educate everyone in the organization. Too many companies provide seminars only for managers and supervisors leaving individual contributors to their own devices. Yet anyone can be a harasser and anyone a victim.
Do not tolerate (or participate in) "consensual" romantic relationships if one person reports to another. While some romances end happily, many do not and the potential for a lawsuit is a serious reality. Be careful not to confuse apparently "welcome" with "voluntary" relationships.
Consider sexual harassment as a form of violence that may or may not include physical injury; if a gun would not be tolerated in the workplace, do not tolerate threats, taunts, humiliation of any kind; the psychological damage to victims cannot be overestimated.
Recognize that there are many people whose earlier lives may have pre-disposed them to be either harassers or victims; these are individuals whose reactions can be disproportionate to an actual situation; therefore, it makes eminent good sense to adopt a zero-harassment policy.

In 1986, the Supreme Court heard its first sexual harassment case (Vinson v. Meritor Savings Bank) in which the Court clarified that welcome and voluntary are not synonymous terms.

For example, the Equal Employment Opportunity Commission defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature 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 effecting such individual, or

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

In the Meritor case, the Supreme Court overturned an earlier decision that Ms. Vinson "welcomed" her manager's attention since she acquiesced; the Supreme Court explained that she did not welcome it, but rather submitted to it "voluntarily" – a term very different from "welcome." Despite the most recent Supreme Court rulings that apparently clarified the sexual harassment issue and the responsibilities of victims and of organizations, there will always be a blurry area when it comes to “Hostile Environment Harassment” because the measure itself is blurry; the measure is "reasonable." And what is reasonable to one person may well be "unreasonable" to another.

Both Justices Clarence Thomas and Antonin Scalia, criticized the Court's rulings arguing that it left areas of "vagueness," suggesting that the "dirty work" of interpreting decisions will continue to be left to the lower courts. It is suggested here that the "dirty work" of the courts, the "dirty work" of organizations, and the "dirty work" for individuals is inevitable, regardless of how any Court, including the Supreme Court, attempts to be specific, to seek and find the mythical "fine line,” the "bright light," or the specific place where light gray behavior turns dark.

So, the "dirty work" will always be left to the organizations – or, if they don't act – the courts, because, unlike other issues with which organizations must deal, sexual harassment is never squeaky clear. The lower courts in the past, and in the future, will always be faced with deciding what is “reasonable”, in figuring out when a behavior rises to the level of severity and/or persuasiveness that makes it an actionable issue in a court of law. To stay out of court and out of the headlines, Mr. Brookman believes that a systemic approach is required and suggests the following:

a strong investment in time and resources from top management; as champions of change, as they must model the behaviors they require from everyone else in the organization
an organizational environment that both formally and informally treats employees, customers and vendors with respect and dignity (whether on or off site)
recognition that a harassment-free environment is an effort without end, an approach that requires continuous improvement and dedication to excellence
willingness to deal with sensitive issues, e.g., reprimanding a senior officer, a customer, or a vendor who has been found guilty of sexual harassment

Successful implementation of this approach affords the promise of a culture where morale is high, where men and women can be more productive, where the organization's reputation in the community is enhanced, and where the bottom line makes everyone proud. In short, a climate where everyone wins: women, men, and the organization.

By: Murray Brookman

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