Handling Sexual Harassment 1

Handling Sexual Harassment in the Workplace

Steve Sung

MBA 675 The Legal Environment of Business

Professor Kevin Sawatsky

September 15, 2008

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Abstract

Sexual harassment is a common and harmful misconduct in the workplace. Potential solutions lie in

two areas: prevention and correction. The most common forms of prevention include adopting sexual

harassment policies, providing training and establishing formal complaint processes. While prevention

is the most effective way to handle sexual harassment, proper correction can reduce damage to the

minimum if an actual incident does occur. When a complaint for sexual harassment is reported, the

incident should be promptly investigated and the harasser should be reasonably disciplined and advised

not to show retaliation. Providing counselling is helpful to eliminating similar incidents in the future,

and purchasing insurance adds another layer of protection to the organization.

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Handling Sexual Harassment in the Workplace

Background

Sexual harassment is one of the most common workplace misconducts. It is also among the

most offensive and demeaning torments an employee can undergo (Englander, 1992; Ford &

McLaughlin, 1988). In 1994, Statistics Canada published a report that states over 2 million Canadian

women had experienced sexual harassment in the workplace (Johnson, 1994), and in 2007, the U.S.

Equal Employment Opportunity Commission (EEOC) received over 12,000 charges of sexual

harassment (Sexual harassment. 2008). Sexual harassment is so prevalent that, some estimates suggest

that as many as one of every two women will experience this type of misconduct at some point during

their working lives (Fitzgerald & Ormerod, 1993). Among the victims of sexual harassment, it is not

uncommon to find men. In fact, among the charges that EEOC received in 2007, 16 percent were filed

by males. Sexual harassment is prevalent in both public and private sectors, and is worse in smaller

firms (Fitzgerald, Drasgow, Hulin, Gelfand, & Magley, 1997; Poe & Courter, 1998).

The impact of sexual harassment in the workplace cannot be overlooked. Sexual harassment

causes damages to both the victim and the workplace itself. Among the women who have been sexually

harassed, 63 percent of them reported adverse physical symptoms and 94 percent experienced

emotional distress (Crull, 1982). Symptoms that victims experience include decreased job satisfaction,

lowered organizational commitment, ill physical and mental health, and even signs of post-traumatic

stress disorder (Willness, Steel, & Lee, 2007). The presence of sexual harassment in the workplace

makes it difficult for employees to focus on their work, and indirectly impacts their work performance,

such as increased absenteeism and turnover rate, and decreased morale (Fitzgerald et al., 1997;

Schneider, Swan, & Fitzgerald, 1997). Some estimated that it cost an organization on average of

$22,500 per person affected in terms of productivity alone and up to multimillion dollars of total

damage (Willness et al., 2007; Winkelmann, 2005).

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Aside from protecting employees' well-being, an organization should effectively handle sexual

harassment for two other reasons. First, sexual harassment is a highly repeated behaviour. Most victims

of the harassment are subjected to extended patterns of offensive behaviour rather than isolated

incidents (Schneider et al., 1997). In 75 percent of all cases, the offence will continue to escalate if it is

ignored (Responding to sexual harassment in the workplace. 1993). Second, an employer who knew or

should have known about the conduct underlying the hostile work environment but did nothing to

prevent it, correct it or acted too slowly faces liability risk (Sexual harassment. 2008). In the case

Meritor Savings Bank v. Vinson (1986), the employer was held liable for not responding to the

misconduct, but in Minix v. Jeld-Wen, Inc. (2007), the employer was not held liable because a sexual

harassment policy was in place.

Sexual harassment occupies the largest portion of all the potential claims brought under an

employment-practices liability policy or endorsement (Truesdell, 2007). It is also a widely researched

topic. This paper will share the best practices to handle sexual harassment in the workplace suggested

by experts and scholars, but first, challenges in dealing with sexual harassment will be briefly

mentioned.

Challenges

One of the major challenges that organizations face is employees' hesitancy in reporting sexual

harassment incidents. Several studies have shown that the estimated report rate is as low as 20 percent

(Peirce, Rosen, & Hiller, 1997; Ware & McClellan, 2005). Some victims also have the tendency to

report passively (Bowes-Sperry & O'Leary-Kelly, 2005). There are two major reasons that contribute to

this phenomenon. The first reason is victims worry about their career and personal risks associated with

reporting the incidents, and the second one is related to company policies, which includes skepticism

that complaints would be taken seriously and harassers would be punished; employees may also

question the fairness and length of investigation. In some cases, the victims simply were not aware of
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the existence of corporate policies on sexual harassment or were discouraged by the nature of the

policies (Peirce et al., 1997). It is important to overcome these challenges in order to effectively handle

sexual harassment in the workplace. Potential solutions lie in two areas: prevention and correction

(Winkelmann, 2005).

Prevention

Prevention is the most effective way to handle sexual harassment in the workplace (Sexual

harassment. 2008). One article even uses the phrase “the best defense is no offense” to describe the

effectiveness of prevention (Winkelmann, 2005). The most common forms of prevention to sexual

harassment are adopting sexual harassment policies, providing appropriate training sessions and

establishing formal complaint processes.

Sexual Harassment Policy

Sexual harassment policy not only prevents the occurrence of sexual harassment incidents, but

also protects an organization from being liable to damages caused by these incidents. A sexual

harassment policy should be written in clear and simple English, and specifically tailored to that

company's particular business and employment circumstances (Haggard & Alexander Jr., 1994). A

well-written policy against sexual harassment should contain: definition of sexual harassment; clear

prohibition; investigation procedure; information on making an internal complaint; a non-retaliation

statement; and possible disciplines (Haggard & Alexander Jr., 1994; Peirce et al., 1997; Raphan &

Heerman, 1997). Other provisions may be useful include: confidentiality; special duties of managerial

personnel; and harassment conducted by non-employees such as clients or contractors.

A well-written policy is useless unless it is enforced and committed throughout the workplace.

This can be achieved by several ways. Including the policy in the employee manual and continuously

posting it around the workplace help both new and old employees become aware of its presence

(Haggard & Alexander Jr., 1994; Truesdell, 2007). It may also be helpful to attract employees’ attention
 Handling Sexual Harassment 6

by periodically changing the layout and color of the poster. Another way to put the policy in use is by

requiring employees to sign forms acknowledging their awareness of the company's tolerance and

methods of dealing with sexual harassment (Hamer & Petrides, 2004). Finally, if an organization

already has a sexual harassment policy implemented and adopted, a recommendation is to audit and

revise it once in a while (Peirce et al., 1997).

Training

An organization can also facilitate prevention of sexual harassment by sponsoring trainings

(Bordeaux, 2002; Raphan & Heerman, 1997). These trainings can be used to educate employees about

dealing with sexual harassment and its consequences. Training as such can take place in the classroom

or on the Internet, and employees should be re-enrolled into these sessions periodically to refresh their

memory. The employer needs to be aware of the appropriateness of these trainings. For example, in a

company's training session, a hostile working environment was simulated by asking male employees to

slap on female employees' buttocks. One male employee later sued his company for sexual harassment

by forcing him to participate in this activity. It was difficult for the employer to prove that the plaintiff

had not experienced harassment by participating in this training session, and the court ruled that the

employer created a hostile working environment by simulating one (Raphan & Heerman, 1997).

Channel for Complaints

Establishing a formal channel for reporting sexual harassment would encourage employees to

report sexual harassment incidents and discourage the misconduct. Features of a sound complaint

channel include top management support for enforcing sexual harassment policies and commitment by

the corporation to privacy and anonymity, and implementation of fair and supportive investigative

processes (Peirce et al., 1997). Employers should have several people within the organization to whom

the employees can report the misconduct to. It is recommended to designate these people from the

Human Resource department with at least one person per gender (Haggard & Alexander Jr., 1994). One
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advantage of having more than one person to handle the reporting is to avoid situations where the

person to whom the employee is supposed to report to is also the harasser. It is also helpful to have

multiple avenues for complaints, both informal and formal, and mediation approaches should be in

place as well (Zippel, 2003).

Correction

An employer should take all the necessary steps to prevent sexual harassment in the workplace.

Although this seems to require a lot of work as mentioned in the previous section, dealing with an

actual incident requires even more resource and energy, not to mention the unpleasantness suffered

throughout the process and possible damages. When sexual harassment does occur, the first priority is

to get the harassment stopped; second, the victim must be made whole; third, harasser must be

disciplined (Peirce et al., 1997). It is important to follow the procedure outlined in the policy. This

section lists some tips for organizations to appropriately correct a situation caused by sexual

harassment.

Investigation

When a complaint for sexual harassment is reported, the investigation should begin as quickly

as possible. The investigation process needs to be prompt and thorough, and it may assist the process

by temporarily transfer the harasser, victim or witness to another department or shift (Haggard &

Alexander Jr., 1994). If the harassment is of a relatively minor nature, the investigator may resolve the

issue informally; however, if the employee has a serious complaint or is determined to file one, the

investigator must have the employee put the complaint in writing (Haggard & Alexander Jr., 1994).

During investigation, the investigator might also want to examine the complainant's motive as well as

the allegation (How to investigate (and help prevent) sexual harassment. 2002). The employer may be

held liable if an investigation for sexual harassment complaint was not dealt adequately. In the case

Coyne v. Home Office (2000), the judge stated that there was no material difference between the failure
 Handling Sexual Harassment 8

to prevent harassment and the failure to deal with a complaint of harassment properly.

Discipline

Establishing disciplinary actions to the harasser is necessary to stop the misconduct and prevent

future incidents in the workplace. The EEOC views discipline in terms of proportional punishment; for

example, a person making a few off-color remarks but having no prior record could be verbally

reprimanded or warned, but severe or persistent behaviour should probably be dealt with by suspension

or even termination of employment (Sexual harassment. 2008). Discipline the harassers may be

graduated based on the harasser's history and the level of severity of the harassment, but all forms of

reprimands should be documented. Deciding the degree of discipline can be critical. In Minnich v.

Cooper Farms Inc. (2002), although the employer had responded to an employee's misconduct by

investigating the incident and disciplining the harasser, the court still ruled there was a dispute of fact

about whether the employer’s disciplinary actions were reasonable in light of the repeated harassment

by the same employee. This case is a useful reference for employers when they are dealing with

repeated sexual harassment conducted by the same employee and deciding the degree of punishment to

act upon. Employers must respond to sexual harassment with appropriate discipline so that repeated

misconducts can be minimized, and they should also recognize that employees with a history of

harassment also create liability risk.

Retaliation

The fastest-growing area of employment litigation is retaliation, and it is one of the factors that

contribute to a low reporting rate for sexual harassment complaints (Frieswick, 2007). Retaliation can

come from either the harasser or the employer, and can be acted towards either the victim or witness

(Zachary, 2008). The harasser should be warned not to retaliate in any way against the complaining

employee or witnesses, and not to even discuss the matter with them. In a survey conducted by Peirce

et al. (1997), over 66 percent of respondents would be encouraged to report harassment incidents if
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they were not required to confront the harasser. Retaliation coming from the employer can hurt the

employer himself or herself even if a sexual harassment policy has already been adopted. In the case

Morris v. Oldham County Fiscal Court (2000), although the harassment was not severe enough to hold

the employer liable, the court ruled that the employer was liable for showing retaliation. Given the

consequence of retaliation, it is important that after a sexual harassment complaint is reported, the

employer should avoid any forms of retaliation to the employees involved.

Counselling

After a sexual harassment complaint is reported, the employer may take this opportunity to

educate the harasser by providing counselling services. The counsellor can reemphasize the company's

anti-harassment and zero-tolerance policy, and explain its enforcement standards and larger legal

consequences that may follow (Training or punishment: Which path should you take? 2001). The

purpose of counselling is to raise awareness of this type of misconduct as well as other offensive

behaviours that are sensitive and may be misinterpreted in the workplace. Some organizations also

encourage counselling the victims to rebuild their trust and mental state suffered from the incident

(Iwahashi, 2005).

Insurance coverage

Ever since Anita Hill v. Clarence Thomas, the most publicized sexual harassment case in two

decades, sexual harassment claims have increased dramatically (Altman & Lavelle, 1998). More

employers have sensed that the demand for sexual harassment coverage is greater than before, and

started to seek protection from lawsuit by acquiring insurance. As this paper has pointed out so far,

employers today face all types of liability risk when it comes to sexual harassment. For those

employers who have purchased liability insurance, to best defend their organizations when an incident

of sexual harassment occurs, they should notify the insurance companies immediately (Altman &

Lavelle, 1998).
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Conclusion

The challenge before employers and managers today is to develop strategies or find ways to

enhance the old ones and to protect the organization from sexual harassment complaints. Effective

prevention and correction mechanisms can reduce the occurrence and damage of sexual harassment to

the minimum. Oftentimes sexual harassment arises from gender or power inequalities. It may be

helpful to consider the degrees of these factors when designing an approach to handle sexual

harassment in a specific organization. It would also enhance the usefulness and effectiveness of an

organization's approach to handle sexual harassment by studying other organizations that have

successfully reduced or eliminated problems caused by this harmful misconduct.

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