Take Precautions SEXUAL harassment lawsuits have risen 150% since the Anita Hill vs Clarence Thomas hearings seven years ago. All industries, including trailer dealers, should take precautions, said Geoffrey Glaser, an attorney with Human Resources Enterprises, Flossmoor, Illinois. Glaser spoke at the NTDA convention in Seattle.
Confirming that such lawsuits are a real possibility in the industry, one convention participant commented, "We had a fun work environment until we were sued for sexual harassment. Then we got serious about protecting ourselves against it."
The first step in preventing lawsuits is to understand what sexual harassment is, Glaser said. According to the courts, two kinds of sexual harassment can occur: "quid pro quo" and hostile environment.
"Quid pro quo" is Latin for "this for that." It is the original kind of sexual harassment dealt with by the courts. In a typical example of "quid pro quo," a company supervisor tells a female employee he will give her a salary increase or promotion in return for sexual favors.
Today, most sexual harassment cases involve allegations of a hostile environment, Glaser said. So many "quid pro quo" lawsuits have been filed that awareness of this kind of activity has been raised. "Companies generally don't get involved in those types of lawsuits," he said.
Threats or promises don't have to be made to create a hostile environment. And this kind of environment doesn't have to be created by a business owner or manager. "Hostile environment can result from any employee harassing any other employee, or a supervisor harassing any employee," he said. "It is enough that the workplace becomes a hostile environment for a worker and that it becomes difficult for the victim to work."
Law Geared to Women Typically, perpetrators of sexual harassment in the workplace are men, and most of the victims are women. More than 95% of cases are filed by women against men, Glaser said. Most cases involve a supervisor, manager, or business owner, rather than a fellow employee.
"Gentlemen, I'm really talking to you," Glaser said. "Women's dress or apparent flirtatious behavior is no excuse for sexual harassment. When women say stop, men must stop."
Glaser referred to a recent development in sexual harassment law when the U S Supreme Court "closed a loophole" by which a judge in Arkansas dismissed the Paula Jones lawsuit against President Clinton.
"The judge dismissed that case because, she said, although his actions were inappropriate, possibly verging on illegal, the woman suffered no harm," Glaser said. "In June, the Supreme Court closed that loophole real loud and clear. That means if you're harassing somebody, that person doesn't even have to be harmed by your actions. She doesn't have to lose her job or quit her job, lose a promotion, money, or benefits. All she has to do, in her opinion, is be harassed, and that's enough."
Though company owners may not be liable in a hostile environment case involving their employees, they must be able to show that they didn't know about the harassment. "The courts have said a company owner will be liable if the harasser is a supervisor, manager, or somebody in an authority position," he said. "If it's hostile, and you knew about it and didn't do anything, of course you're going to be liable."
Supreme Court Guidelines Glaser discussed Supreme Court guidelines for making business owners aware of workplace harassment. The court has rejected the argument of some owners who claim to be unaware of a hostile environment in the workplace.
"The Supreme Court addressed this issue definitively on June 26," he said. "The court said that if owners had done what the court told them to do in the first place, they would have known about workplace harassment situations.
"The court justices did something very unusual. They came out loud and clear on sexual harassment and told employers exactly what to do. The justices said that sexual harassment is more prevalent in the workplace than you think it is, and that they are sick and tired of having all these cases come to the court. They want to put a stop to it once and for all."
Here's what the court suggested that company owners do: ( Have a written policy against sexual harassment that clearly defines what it is and clearly defines what the company will do if a manager or employee harasses someone.
( The written policy should include a complaint procedure, so that the harassed employee has an opportunity to notify a supervisor or some higher authority. "Not just the supervisor, because the supervisor might be the harasser," Glaser said. "The court said the company must allow the employee to take it to the top, to the business owner or CEO. It needs to be brought to the attention to somebody who has the authority and responsibility to put a stop to it or fire the person who won't knock it off."
( Once a written policy with an internal complaint procedure is developed, hand it out to every employee. Discuss the procedure with employees at least once a year.
"The training program allows employers to tell their employees to come and see them if sexual harassment occurs and they will put a stop to it," he said. "Some employers fear that such a program would bring about a huge increase in charges, but I've never seen this happen."
The Supreme Court promises employers who follow the court guidelines a "safe harbor" if one of their employees files a lawsuit.
"This means that if an employee sues you and you've done the policy and the training, and she hasn't brought it to your attention, the court is going to send her back to you so that you can correct the problem," Glaser said. "Or if the court takes the lawsuit, it at least will allow the employer in his defense to say that he did everything reasonable, and that the employee didn't give him an opportunity to put a stop to the harassment."