How to Avoid Sexual Harassment Liability

Steven AbrahamSexual Harassment: When Employers Might Be Liable and How They Can Avoid Liability
Presented by Dr. Steven Abraham,
Associate Professor, Department of Management and Marketing, State University of New York at Oswego
Contact Dr. Abraham at abraham@oswego.edu
Thursday, April 19, 2001

Visit the AccountingWEB Workshop Calendar for upcoming sessions.


Summary

Dr. Abraham provided workshop participants with the latest information about sexual harassment in the workplace: what it is, what legal liabilities exist, and how these liabilities can be avoided. You can read the full transcript of the workshop.

Items that were covered in the workshop include:

  • Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964, as well as many state laws.

  • Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.

  • Unlawful sexual harassment may occur even if the victim does not suffer any economic harm or injury.

  • Employers may be held liable if the harasser is the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or even a non-employee.

  • When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

  • Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take necessary steps to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.


Full Transcript

Session Moderator: Welcome everyone, and thank you for joining us today! We are fortunate to be joined by Dr. Steven Abraham, who will be presenting information on sexual harassment in the workplace.

Steve holds a B.S. from Cornell University (1980), a J.D. degree from New York University School of Law (1983) and Ph.D. degree in Industrial Relations from the University of Wisconsin-Madison (1992).

Steve is currently an associate professor in the Department of Management and Marketing, State University of New York at Oswego. He teaches Employment Law, Labor Law, Legal & Social Environment of Business, Labor Relations and Human Resource Management. Steve's primary research interest is the interrelationship between law and employment and he has investigated this relationship both empirically and conceptually.

Steve Abraham: Hi Everybody!! Thanks for joining me!! In the next hour, I hope I can provide you with some useful information and answer any questions you have as well.

A major issue dominating today's work place is sexual harassment. It is well settled that employers can be held liable if an employee is a victim of sexual harassment, if the harassment is connected with his or her employment. Further, employers may be liable even if the person committing the harassment is the victim's supervisor, coworker or a customer.

The law recognizes two different forms of sexual harassment: quid pro quo and hostile environment.

Quid pro quo sexual harassment exists when an employee receives unwelcome sexual attention that effects the term or condition of employment. In the typical scenario, an employee's rejection of a supervisor's sexual demands results in the loss of a job benefit (i.e., the employee is demoted, given onerous job assignments).

Hostile environment sexual harassment exists even if the employee cannot point to any tangible job loss that occurred because she refused a supervisor's demands for sexual favors. Unwelcome sexual remarks, innuendoes and physical contact result in hostile environment liability if they create an abusive working environment.

It is difficult to offer generalities in the area of sexual harassment because outcomes are dependent on many variables and the law is changing constantly. There are a number of factors the courts will use to determine whether conduct will be severe enough to constitute sexual harassment. That's not always easy.

Think of it this way. I think it might be hard for you to convince a jury that harassment based on gender is not sexual harassment. True, the burden of proof is on the employee, but these cases do go to juries.

Mike Heines: Steve, does the term sexual harassment also include harassment due to gender but not sexual in nature?

Steve Abraham: Mike: What do you mean by harassment due to gender that's not of a sexual nature?

Mike Heines: If you have a male employee who performs a particular task i.e. heavy lifting and he is replaced with a female employee and although the base job description does not change she is not required to do any lifting.

Steve Abraham: Mike's example does not seem like harassment at all.

Roberta Lipsig: Asking a woman what her plans for having a family are on an interview?

Steve Abraham: Roberta's might or might not be.

Steve Abraham: Conduct will only constitute sexual harassment if a "reasonable person" would find the conduct offensive. This will prevent the hypersensitive employee from maintaining a sexual harassment claim based upon conduct that most people would find harmless.

A court is not likely to find harassment based on one request for a date. Of course, it depends on how the request was made.

You should also know that the scope of the employer's liability for sexual harassment depends on the type of claim and who committed the harassment: Only supervisors (managers) can commit quid pro quo sexual harassment because others (i.e., co-employees) would not have the power to carry out their threats. If a supervisor does engage in quid pro quo sexual harassment however, the company will be held strictly liable.

Harry D. Howe: We are a consulting company - what responsibility do we have for employees who are working at a client's site?

Steve Abraham: That depends on who is the employer.

Actually, I'm not sure what you are asking. Are you saying that your employees are working elsewhere?

Harry D. Howe: How can we be responsible for what another employer does while our employees are at their office?

Steve Abraham: That depends. The key here is whether knowledge of the harassment can be imputed to you If the victim can demonstrate that management either knew or should have known of the harassment, management will be held liable for the harassment. I am referring to you when I said management.

You will benefit greatly from having sexual harassment policies in place. These policies can minimize greatly the financial consequences of sexual harassment liability and may enable you to avoid liability totally. In fact, this is true for employers too. While quid pro quo liability cannot ever be avoided with a sexual harassment policy, hostile environment liability can.

Sexual harassment policies should contain the following measures:
The conduct that constitutes sexual harassment should be defined.
The policy should be communicated to every employee and should make it clear that sexual harassment will not be tolerated.
Sexual harassment complaints should be investigated promptly. The investigations must be kept strictly confidential and neither the victim nor the accused should suffer any discipline until the results of the investigation become clear.

Roberta Lipsig: If the quid pro quo is from someone one step up, can higher-level management be responsible if they're not told about it?

Steve Abraham: The employees MUST have a way to complain about sexual harassment. They must know complaints will be confidential.

Steve Abraham: What can I address next?

Elaine Lamm: What about getting some samples from everyone on how their sexual harassment policy reads?

Steve Abraham: Are you asking me to address/read these? I'd be happy to if you'd like.

Steve Abraham: Did I mention that to constitute sexual harassment, the sexual conduct must be unwelcome. Evidence that the victim solicited or invited the conduct will defeat a sexual harassment claim.

Elaine Lamm: That would be great, however, I was just saying it might be good to compare our own policy to others to see if we maybe should add or delete something.

Steve Abraham: How would you like me to be involved in this -- especially in this session?

Lezley Wass: Elaine, we've titled ours "promoting respect"...it doesn't sound so negative that way.

Steve Abraham: Would anyone like me (the moderator) to discuss something?

Roberta Lipsig: And does a short skirt or low neck automatically invite?

Steve Abraham: What would the reasonable person think? Remember, these cases go to juries. Jury members are considered reasonable.

Elaine Lamm: Who decides the definition of a "reasonable" person? The jury?

Steve Abraham: Jury members are told to use a "reasonable person" standard.

Vicky Lanier: Lezley - I like that title - Can I get a copy of yours - email - vlanier@bn-cpa.com

Lezley Wass: Sure...I'll send it after the session!

Elaine Lamm: Lezley e-mail me too elamm@macpage.com

Lezley Wass: Not a problem, Elaine.

Steve Abraham: What can I address next?

Vicky Lanier: Is it a good idea to have an attorney look over your policy before committing to your policy manual?

Elaine Lamm: After investigating a complaint and it is found to be true, what then?

Steve Abraham: What do you mean? Do you mean how should you deal with the harasser?

Elaine Lamm: Yes, do you discipline or discharge or does it depend on the circumstances

Steve Abraham: Discipline should be imposed swiftly if sexual harassment is shown to have occurred. I know this may sound terrible but it's true. You commit no legal wrong by firing the harasser. I'm not saying you SHOULD or MUST do that.

Elaine Lamm: What type of discipline has proven effective?

Steve Abraham: In answer to Elaine, the discipline should fit what occurred.

Lezley Wass: Can you give us an example? Example meaning the appropriate discipline.

Steve Abraham: Again, it depends on what the harasser did.

Lezley Wass: Say that the harasser made inappropriate contact. What should be done?

Steve Abraham: If it were a one-time thing, I would not recommend discharge.

Elaine Lamm: Be more specific, what options are there for discipline? Time off without pay, verbal warning, etc.?

Steve Abraham: That depends on company policies. How are other infractions treated? How would you handle an employee who was insubordinate?

Robin Hecht: You can fine a harasser $$$ & hurt him in his/her pocket & then mandate that they attend SH seminars/courses to become more aware!!!

Lezley Wass: What happens when the harasser is an outsider (not an employee of the company) but the harassment happens in my office?

Steve Abraham: Good question Lezley. Did you see the harassment? Did you know it was likely to occur? Thus, if an employee can demonstrate that a supervisor, co-employee, or customer was prone to committing sexual harassment, the victim is likely to recover.

Lezley Wass: Yes, I saw the harassment (it happened to me) and no I didn't know that it was likely to occur.

Steve Abraham: Do you mean you were the person harassed?

Lezley Wass: Correct.

Steve Abraham: If I can ask, who harassed you?

Lezley Wass: A non-employee...

Steve Abraham: Are you asking whether you can recover?

Lezley Wass: I'm fine, and I think we (the company) took the appropriate actions.

Steve Abraham: I don't understand your question

Lezley Wass: We contacted his supervisor and higher-ups, and he can no longer be anywhere near our office. Do you feel that we handled that correctly?

Steve Abraham: Are you asking me?

Lezley Wass: Yes.

Steve Abraham: If you were the person harassed, it's up to you.

Elaine Lamm: I would have thought you would have asked who in his company handled sexual harassment complaints and contacted that person.

Steve Abraham: The more important question is what to do if an employee (or someone else) harasses another employee.

Session Moderator: How do the courts view a situation wherein the alleged harasser had no intent to harass but was acting in a manner deemed suitable by perhaps the majority of the other employees?

Steve Abraham: In that case, it probably would not be illegal. As I said before Conduct will only constitute sexual harassment if a "reasonable person" would find the conduct offensive. This will prevent the hypersensitive employee from maintaining a sexual harassment claim based upon conduct that most people would find harmless. Subjectively feeling harassed is not enough

Elaine Lamm: But if a situation has devastated the hypersensitive employee how can it just be dismissed?

Steve Abraham: I'm not saying it should. Clearly, if you want to discipline the harasser, you may.

Elaine Lamm: But it sounds like you're saying if most of the employees would not be bothered, then it doesn't seem like it would be considered harassment.

Harry D. Howe: I'm not sure there is any agreement on what a reasonable person finds offensive -- I think I'm a reasonable person but my views differ from many people.

Steve Abraham: But the law uses the "reasonable person" in many cases, not just harassment.

Mike Heines: Steve, can you give specific examples of sexual harassment, i.e. "unwanted sexual advances", "Leering, making sexual gestures, sexually suggestive jokes, cartoons or posters" also as an employer is it not our responsibility to have a policy but to also make a good faith effort in educating the entire staff how to identify sexual harassment, its implications and possible outcomes?

Steve Abraham: Those are all good. I've seen others too; hanging dirty pictures, asking a person on a date too many times.

Mike Heines: How about verbal commentaries about a person’s body?

Steve Abraham: If the reasonable person would be offended, the answer is yes

Session Moderator: Do you have any figures as to what percentage of harassment cases that make it to court are decided for the plaintiff?

Steve Abraham: Not court cases, but I can tell you that the % of EEOC charges that are successful is VERY low. As you may know, harassment cases don't go to court first charges must be filed with the EEOC first.

Session Moderator: I didn't know that - please explain.

Steve Abraham: Anyone wishing to sue for any violation of federal discrimination law must file charges of discrimination with the EEOC (Equal Employment Opportunity Commission).

Session Moderator: I see - thanks!

Mike Heines: Is there any insurance available that will cover the employer for a judgment found in the court case? Also please comment about prior question regarding good faith education effort.

Steve Abraham: There certainly is insurance.

I do not recall the question about education efforts

Session Moderator: The question was: As an employer is it not our responsibility to have a policy but to also make a good faith effort in educating the entire staff how to identify sexual harassment, its implications and possible outcomes?

Steve Abraham: Certainly, showing that the company educates employees will reduce exposure to harassment suits. If a supervisor does engage in quid pro quo sexual harassment however, the company will be held strictly liable. This is true even if the company took all possible steps to prevent sexual harassment at the workplace and fired the supervisor immediately upon learning of the harassment.

Session Moderator: We have only a couple of minutes left - are there any other questions for Steve?

Steve Abraham: If not, I'd be happy to answer any questions privately

Harry D. Howe: Thanks Steve, good session.

Steve Abraham: I think you have my e-mail

Steve Abraham: Feel free to contact me

Session Moderator: You can reach Steve at: abraham@oswego.edu

Session Moderator: Thank you all for attending today, and thank you Steve for a great presentation!

Steve Abraham: I enjoy discussing these things

Mike Heines: Thanks Steve

Lezley Wass: Thank you!

Elaine Lamm: Thanks - this was my first experience on an accounting web discussion

Steve Abraham: Thank you all. PLEASE feel free to contact me

Session Moderator: We hope all of you will join us next week and in the future for other workshops - you can always find our schedule at www.accountingweb.com/workshop.


Biography

Dr. Steven E. Abraham holds a B.S. from Cornell University (1980), a J.D. degree from New York University School of Law (1983) and Ph.D. degree in Industrial Relations from the University of Wisconsin-Madison (1992). He is a member of the New York State Bar as well as the bars of the Eastern and Southern District of New York. Between obtaining his J.D. and Ph.D. degrees, Dr. Abraham practiced labor/employment law in New York City in two law firms and one corporation (for a total of five years). He has also provided legal advice to law firms on a number of occasions.

Dr. Abraham is currently an associate professor in the Department of Management and Marketing, State University of New York at Oswego, Previously, he was an assistant professor in the College of Business, University of Northern Iowa and his first teaching position was as a visiting assistant professor with a joint appointment in the Department of Management and the Department of Economics, University of Minnesota-Morris. He teaches Employment Law, Labor Law, Legal & Social Environment of Business, Labor Relations and Human Resource Management.

Dr. Abraham's primary research interest is the interrelationship between law and employment and he has investigated this relationship both empirically and conceptually. He has more than fifteen academic publications in refereed journals and has presented a number of papers at conferences as well. He has also written a number of articles dealing with more practical day-to-day issues facing business.

E-mail: abraham@oswego.edu

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