Sexual harassment at camp: reducing liability.
Nevertheless, when camp administrators assess their potential for liability, they generally look to their facilities, transportation, and staff qualifications and certifications. Because of the perception of camp as a safe space, the possibility of employer liability for sexual harassment perpetrated by staff members may be overlooked. To protect their employees' and their own interests, administrators should think seriously about addressing the issue. The number of sexual harassment charges filed with the Equal Employment Opportunity Commission and state fair employment practices agencies has risen in recent years. In 1991, 6883 sexual harassment charges were filed. This can be compared with 15,618 in 1998 (Enforcement Guidance on Vicarious Employer Liability 2003). Such a jump in the figures simply emphasizes the fact that, like any employer, camps need to anticipate that they may be affected and find ways to minimize their liability.
Understanding Vicarious Liability
Employers are liable for the actions taken by their employees in the workplace through the doctrine of vicarious liability. Black's Law Dictionary defines vicarious liability as "liability that a supervisory party (such as an employer) bears for the actional conduct of a subordinate or associate (such as an employee) because of the relationship between the two parties" (Garner, 1999, p. 927).
In Burlington Industries, Inc. v. Ellerth, (1998), and Faragher v. City of Boca Raton (1998), the Supreme Court ruled that employers are specifically subject to vicarious liability for the sexual harassment perpetrated by a supervisor. The decisions stated that an employer is responsible for the acts of its supervisors and that employers should be encouraged to prevent harassment in the first place. In addition, employees should be encouraged to avoid or reduce the harm from harassment. The question of liability only arises once it has been determined that unlawful harassment has occurred and only when the harasser is in a supervisory position over (directly or indirectly) the employee being harassed.
It is important to note that the law does not prohibit one-time comments, or simple teasing, but rather it is aimed at conduct which is severe enough to create a hostile work environment (Enforcement Guidance on Vicarious Employer Liability, 2003). In such cases of more serious conduct, the Court held that an employer is always liable for a supervisor's harassment if it results in an action such as firing, the failure to promote, undesirable reassignment, or a decision causing a significant change in benefits or compensation (Burlington Industries v. Ellerth, 1998, and Faragher v. City of Boca Raton, 1998).
However, if the harassment does not involve one of these tangible actions, an employer may be able to limit or avoid liability by showing that he/she exercised reasonable care to prevent and correct any harassing behavior in a timely fashion and that the employee then unreasonably failed to take advantage of any preventive or corrective actions provided by the employer to remedy harm. This puts the ball, at least partly, in the employee's court. If the sexual harassment does not involve a tangible result like firing and if the employee does not act to address the harassment via the channels set up by the employer, then the employer can use that fact as a way to limit the organization's own liability (Burlington Industries v. Ellerth, 1998, and Faragher v. City of Boca Raton, 1998). More important, as ethical employers, camps should work to reduce the possibility of harm to their employees.
Steps to Reduce Liability
Camps can take the following concrete steps to reduce liability:
* Provide employees with multiple channels through which to report sexual harassment to ensure that an employee will be able to report harassment should the perpetrator be the person to whom he/she would normally report a grievance.
* Feature the procedures for reporting sexual harassment prominently in the staff handbook; this will help establish a paper trail to indicate that sexual harassment will not be tolerated at your camp and that there are channels by which policy violations can be reported. The procedures for reporting sexual harassment can often be worked into any grievance procedure already in use.
* Include an explanation of the procedures and a strong statement that sexual harassment will not be tolerated in staff training so that staff members know the standards of behavior expected of them and where they can get help.
* Distribute or post written reminders of the procedures in employee common areas to further minimize liability and to show all staff that the camp is actively pursuing actions to prevent harm to its employees.
* Establish an anti-harassment policy that contains an explanation of prohibited conduct and clearly demonstrates avenues for reporting the complaint. In addition, the clear, written policy should state that employees who complain will be protected from retaliation, that confidentiality will be protected to the greatest extent possible, and that the camp will take immediate action when it determines that harassment has occurred (Enforcement Guidance on Vicarious Employer Liability 2003).
Sexual Harassment: Camps and Schools
Camps may not only be responsible for sexual harassment among their employees, but also for harassment between campers. Although it involved schools rather than camps, in 1999, the Supreme Court ruled in Davis v. Monroe County School Bd. Of Ed. that public schools can be held liable for damages if they fail to stop all known sexual harassment between students. The standard for peer harassment in the schools was set higher than that for adults in the workplace, but nevertheless the decision sent a clear message that schools are responsible for protecting their charges from known harassment (Cushman 2001). Camps may well be held to the same standard by the courts. Stay aware of your campers' statements regarding harassment by their peers and remain ready to take action promptly.
Prompt action is the key regardless of the circumstances. Whether dealing with campers or staff members, camps need to maintain vigilance both in minimizing liability and in increasing the safety of all of those in their care. A strong message from the outset that a camp will not tolerate inappropriate behavior may well stop sexual harassment before it even begins (Langelan 1993). This, after all, would be the ideal outcome for everyone.
Recommendations for Camps
* Make sure to check the laws in your state. In addition to Title VII at the federal level, many states also have their own sexual harassment legislation on the books.
* Be explicit in your staff manual about what behavior is not acceptable at camp, not just sexual harassment but all kinds of harassment,
* If a staff member does report sexual harassment, try to keep it as confidential as possible.
* Make sure that there are several channels available to staff for reporting sexual harassment.
* Consider posting sexual harassment policies and procedures in a staff area.
* Teach your staff to be on the lookout for harassment between campers and let them know what steps to take if they learn of any situations in which harassment may have happened.
* U.S. Department of Education, Office for Civil Rights, www.ed.gov/offices/OCR/ docs/ocrshpam.html
* U.S. Equal Employment Opportunity Commission, www.eeoc.gov/docs/ harassment-facts.html
* U.S. Department of Justice, www.ncjrs.org/pdffiles/ harass.pdf
Available Through the ACA Bookstore
* 2002 Employers Reasonable Care Pack: Sexual Harassment Prevention in the Workplace by Employers Publications
* What Every Manager Needs to Know About Sexual Harassment by Michael T. Roumell
* The Manager's Pocket Guide to Preventing Sexual Harassment by Terry Titzwater by Michael T. Roumell
To order, visit www.ACAcamps.org/bookstore and click on Amazon.com in the menu on the left of the page.
Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998).
Cushman, C. (2001). Supreme Court decisions and women's rights. Washington, D.C.: CQ Press.
Enforcement Guidance on Vicarious Employer liability for Unlawful Harassment by Supervisors. (2003). Retrieved January 15, 2003 from the United States Equal Employment Opportunity Web site: http://www.eeoc.gov/ docs/harassment.html
Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998).
Garner, B. (1999). Black's Law Dictionary. St. Paul, MN: West Group.
Joyce, A. (1998). Companies insuring selves against discrimination suits. Washington Post, May 17, Financial section.
Langelan, M. J. (1993). Back off! How to confront and stop sexual harassment and harassers. New York: Fireside.
Linda Oakleaf is a camp director at Camp Potomac Woods. Administered by the Girl Scouts of the Nation's Capital, Camp Potomac Woods is a 101-acre residential camp located on the banks of the Potomac River in Loudoun County, Virginia. Linda is also a trainer for the Girl Scouts of Western North Carolina Pisgah Council.
Angela Johnson Grube, Ph.D., has been assistant professor of Sport Management at Western Carolina University since 1999, teaching legal issues for the sports practitioner, introduction to sport management, and sport event and facility marketing and management. Dr. Grube has her undergraduate degree in marketing and management from Georgia College. She received her master's degree in sport management from Georgia Southern University and her Ph.D. in sport management at Florida State University.
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|Author:||Grube, Angela Johnson|
|Date:||Sep 1, 2003|
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