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Sexual harassment in the Utah workplace: preventing claims.


In recent years, employers have made considerable progress toward eliminating intentional discrimination against all people in the workplace. More subtle forms of discrimination, such as sexual harassment, however, still pose obstacles to working women. (While sexual harassment charges have been brought by men, the majority are filed by women.) In Utah, the number of sexual harassment claims are increasing. The Utah Anti-Discrimination Division reports that from October 1989 to September 1990, the agency received 67 claims of sexual harassment. In the following fiscal year, there were 90 claims. In October 1991, three times the number of sexual harassment complaints were filed as compared to the previous year.

Sexual harassment may take many forms--verbal, visual or physical. It may include repeated offensive sexual flirtations, sexual advances, graphic comments about an individual or her body. It may consist of degrading words or names or sexually suggestive displays, pictures, or objects.

Defining Sexual Harassment

Two types of sexual harassment have been recognized: (1) quid pro quo, and (2) hostile work environment. Quid pro quo sexual harassment occurs when submission to such conduct is made a condition of employment or when job benefits, such as a promotion or a raise, depend on the submission to or rejection of sexual advances. In a hostile work environment, the conduct of a co-employer or supervisor unreasonably affects or interferes with the employee's work performance, or creates an intimidating, hostile, or offensive work environment.

Courts generally look to the "totality of the circumstances" to determine if the conduct is so severe or pervasive that it creates a hostile work environment. This would include the nature of the offensive conduct, how frequently it occurs, who is doing it (a supervisor or a co-worker), and the reasonableness of the complainant's reaction. Crude comments about women, posters depicting women in degrading light, or sexually oriented jokes may be sufficient to constitute a sexually hostile environment. Offensive conduct, however, does not always have to be sexual. Two female police officers in Philadelphia alleged that they had been subject to foul and abusive language, that their property had been destroyed, and that they had received threatening phone calls. The employer argued that the conduct was not sexual. The court held that overt sexual conduct is not necessary to establish a sexually hostile environment; rather, it is necessary to show only that sex was a substantial factor. In this case, the complainants would not have been subjected to such treatment except that they were women.

The key issue in sexual harassment claims is whether the conduct is "welcomed." A subordinate may "consent" to or endure comments or actions by a supervisor because she fears that her job may be in jeopardy. Even if she does not make verbal objections, however, the subordinate may not welcome the relationship. Difficult cases develop when an employee participates in sexual conduct, then later no longer welcomes the behavior or participates in some conduct and rejects others.

Prevent Harassment Claims

Sexual harassment charges, investigations by state or federal agencies, and litigation are expensive and disruptive, and employers should take steps to prevent harassment claims from occurring. First, a company should develop and distribute to all employees a written policy explaining that sexual harassment is prohibited by law and will not be tolerated by the company. The policy should include a definition of sexual harassment with alternative avenues of complaint. An alternative complaint procedure is essential because the harasser is often the employee's immediate supervisor, and an employee may be afraid to complain if the only person to whom she (or he) may complain is the person who is the problem.

Second, the employer should educate all employees as well as management as to what may constitute sexual harassment and what they should do if they perceive sexual harassment. If an employee is sexually harassed and lets the employer know early on, the employer may be able to solve the problem before lawyers get involved. According to the American Management Association, 40 percent of 495 companies surveyed responded that they have provided such training about sexual harassment in the workplace.

Third, an employer should develop an effective procedure for investigating sexual harassment allegations. Sexual harassment complaints should be taken seriously and investigated immediately. An employer should meet with the complaining employee to give that person an opportunity to tell the whole story. While an investigation should be conducted with sensitivity, it is essential to learn the details of who, what, when, where, and how often. It is also important to determine as early as possible what the complaining party really wants. Sometimes a transfer to another area will resolve the problem, and it is less costly than a lawsuit. After talking with the complainant, attempt to determine whether any other employees may have information which would be helpful.

Talk to the Harasser

After reviewing all the facts available concerning the allegation, the employer needs to meet with the alleged harasser. The accused employee should have an opportunity to explain or deny. The meeting with the alleged harasser should be conducted in as sensitive a manner as with the alleged victim. The accused may be innocent or may have misunderstood the situation or may have believed that the conduct was welcomed.

Any time an investigation is conducted, it is difficult to prevent the company rumor mill from working overtime. An employer should explain to each employee involved that the problem is being investigated, and that all discussions are confidential. In cases involving serious allegations, the employer should consider suspending the alleged harasser with pay during the investigation.

After investigating the allegations, the employer must take appropriate action. Sometimes an employer is simply left with two different versions and no way to really determine "who is telling the truth." Adequate documentation should be made of the allegation and the fact that no conclusion could be reached. If the employer determines that the allegations are true, then, depending on the seriousness of conduct, its frequency, and the job position of the harasser, anything from a verbal warning to immediate termination may be appropriate. If the sexual harassment involves a supervisor who has abused his position of authority, the supervisor generally should be demoted or terminated. An employer simply cannot afford a supervisor who uses his authority in such a manner. In hostile work environment claims, both the alleged harasser and the company may be liable, depending upon the nature of the claim and what the employer knew or should have known. In quid pro quo, the employer is almost always liable.

Janet Hugie Smith is a shareholder in the law firm of Ray, Quinney & Nebeker and specializes in employment law.
COPYRIGHT 1992 Olympus Publishing Co.
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Copyright 1992 Gale, Cengage Learning. All rights reserved.

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Author:Smith, Janet Hugie
Publication:Utah Business
Date:Feb 1, 1992
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