As a practitioner in the area of employment discrimination, I view this as a most important time for businesses 1) to assess their awareness of the legal precepts underlying a viable claim of sexual harassment, 2) to inquire whether they have promulgated written policies on the subject, 3) to scrutinize the legal and practical effectiveness of these policies, and 4) to ensure their proper enforcement.

IS SEXUAL HARASSMENT IN

THE WORKPLACE A

PROBLEM?

It has become increasingly clear since enactment of Title VII of the Civil Rights Act of 1964 ("Title VII") that "sexual harassment in the workplace is among the most offensive and demeaning torments an employee can undergo." The impact upon victims of sexual discrimination is partly summarized in a 1988 study conducted by the U.S. Merit Systems Protection Board as follows:

"Victims pay all the intangible emotional costs inflicted by anger, humiliation, frustration, withdrawal, dysfunctional family and other damages that can be sexual harassment's aftermath. Victims of the most severe forms of harassment, including rape, can face not only severe emotional consequences, but even the possibility of a life-threatening disease. Some victims may leave jobs for one with a poorer career path, to escape the sexual harassment."

The same study concluded that the cost to the federal government resulting from sexual harassment was devastating as well--over a two- year period, the cost in lost productivity, as well as use of sick leave and job turnover, was $267.3 million.

There is ample evidence to conclude that the problem is at least as widespread and destructive in the private sector. A more recent study concluded that approximately 40% of all working women in both the public and private sectors have, on at least one occasion during their careers, been the object of sexual advances, propositions, or unwanted sexual discussions from men who supervise or could otherwise affect their positions at work. Given the ever increasing percentage of the total work force in this country who are women (i.e., from 29.6% in 1950 to 45.3% in 1990), the percentage of women who perceive themselves to be the victims of sexual harassment in the workplace translates into a problem of significant magnitude. It also underscores that American employers have been largely unsuccessful in raising corporate consciousness and awareness of the issues and in combatting the root causes of the problem. Thus, while a variety of surveys continue to suggest that only an exceedingly small percentage of women who consider themselves to be victims of sexual harassment actually make formal complaints--either through internal employer grievance mechanisms or with administrative agencies--neither these statistics, nor a belief that the odds make it unlikely that a particular employer will be faced with a formal charge of sexual harassment, should deter a prudent employer from taking all necessary steps to minimize the possibility that it will be compelled to defend such a claim in the future.

What is Sexual Harassment?

As the law has evolved, there are two separate and distinct types of conduct which have been found to constitute sexual harassment in violation of Title VII.

Tangible Job Benefit. The first type, first identified in 1977, is the so-called "tangible job benefit" type, also known as "quid pro quo" harassment. As the name suggests, this form of sexual harassment is found to exist where an employee's career path is directly impacted by a supervisor's unwelcome request for sexual favors or other sexual advances and where the employee's decision ultimately results in a tangible job benefit or detriment or otherwise forms the basis for employment decisions. Specific examples of quid pro quo harassment include: 1) requiring submission to a supervisor's request for sexual favors as a condition of continued employment; 2) granting specific job benefits such as a salary increase or promotion in exchange for sexual favors; and 3) withholding job benefits, such as a wage increase or promotion, or assigning more onerous tasks to an employee who has rejected a supervisor's request for sexual favors. A refusal to hire a job applicant or outright termination of employment would, of course, also be actionable in this context. By extension, it has also been held that an employee who has not been the subject of direct sexual harassment has a viable claim against her employer where another, less qualified employee received a promotion or other job benefit instead of the complainant based upon the other's submission to a superior's request for sexual favors.

Hostile Work Environment. More recently, the U.S. Supreme Court formally recognized a second type of sexual harassment, referred to as "hostile work environment" harassment. Unlike quid pro quo harassment, hostile work environment harassment is actionable even in the absence of any economic effect upon an employee's job status or employment. Employer conduct which is actionable under this type of harassment has been characterized in a variety of ways, perhaps most succintly in the guidelines of the EEOC promulgated in 1980:

"Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitutes sexual harassment when . . . such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment."

State courts as well as federal courts have given great deference to these administrative guidelines.

Adopting these guidelines almost verbatim, the Connecticut state legislature has, in Connecticut's Human Rights and Opportunities Act, effective October 1, 1991, expressly defined and outlawed hostile work environment sexual harassment and has thus become one of the more progressive jurisdictions in treating this issue. A similar type of explicit codification of hostile work environment sexual harassment has been proposed in New Jersey (as part of New Jersey's Law Against Discrimination) but, as of this writing, has not been enacted.

The elements necessary of proof in a hostile work environment sexual harassment claim have been enumerated as follows by a New York State court (1):

"A person would have to show that 1) he or she belongs to a protected group i.e., female (2) or minority group; 2) he or she was subject to unwelcome sexual harassment as defined above; 3) the harassment complained of was based upon his or her membership in the protected class; and 4) the harassment complained of affected the terms, conditions or privileges of his or her employment."

Needless to say, the creation of a hostile work environment in violation of Title VII can occur in a multitude of ways depending upon the specific dynamics of an employer's workplace, the size and demographics of the workforce, and, perhaps most importantly, the predisposition of the employer's owners, corporate officers, managerial and supervisory employees, i.e., their sensitivity to sexual harassment- type issues and their collective willingness to do whatever is necessary to prevent the creation (or maintenance) of a hostile work environment. Thus, "firm culture" and the employer's amenability to preserving or changing it is of utmost importance.

Studies and Trends

A rather graphic example of an unlawfully hostile work environment was recently described in an opinion of the U.S. District Court for the Northern District of Illinois wherein a female employee's supervisor, under the guise of increasing productivity, yelled at the complainant regularly, called her insulting names such as "Syphillis," hit, pinched, and pushed her, made rude and boorish comments and asked her offensive questions. The court held the employer liable, finding that it knew of the supervisor's egregious conduct but condoned it because the supervisor, by engaging in the conduct complained of, substantially increased the employer's profitability. The court awarded the employee both compensatory and punitive damages. It is interesting to note here that part of the court's factual findings revealed that the supervisor did not treat his male subordinate employees anywhere near as badly as he did the plaintiff.

Far more passive employer conduct has also been held in violation of Title VII if it constitutes or contributes to a hostile or offensive work environment. Thus, a federal court has held an employer liable under Title VII for its refusal to remove "girly pin-ups" from its dispatcher's office after newly hired female dispatchers complained. The court ordered that the objectionable material be moved notwithstanding evidence that the practice had been in place for almost 20 years.

The judiciary's increasing sensitivity to claims of hostile work environment sexual harassment is clearly illustrated by a recent decision of the U.S. court of Appeals for the Ninth Circuit which promulgated a "reasonable woman" test in order to overcome what it perceived to be the male bias associated with the prior, "reasonable person" test. In that case the court upheld a female employee's claim that she was subjected to a hostile work environment when her employer refused to discipline a male co-worker who sent her love letters and engaged in other conduct which she found to be "bizarre and frightening."

The broad scope of situations in which courts have come to the aid of employees who have claimed to be victims of sexual harassment in the workplace is clearly illustrated by a recent case in which a New York court concluded that the plaintiff, who had appeared in a Penthouse magazien centerforld, had cohabited with the magazine's owner and publisher over a period of several years and had, according to her testimony, been coerced to engage in sexual relations with several of the publisher's business associates over a period of 18 months, was made to endure a hostile work environment in violation of the New York Human Rights Law, thus entitling her to punitive damages in the sum of $4 million. That case has been appealed to the Appellate Division on a variety of issues, including the question of a plaintiff's entitlement to punitive damages in connection with a successful claim of sexual harassment brought under New York's Human Rights Law (i.e., New York State's analog to Title VII).

Remedies to Victims of Sexual

Harassment

Generally, relief under Title VII is limited to equitable relief, sometimes described as a "make whole" remedy. Such relief is normally limited to an award of back pay. Injunctive relief, i.e., a judicial order requiring an employer to cease and desist from continuing an unlawful practice, is also available. Neither compensatory damages, (i.e., for mental anguish, pain and suffering, etc.) nor punitive damages are normally available in such cases. However, victims of sexual harassment and other employment discrimination who are represented by competent practitioners normally allege tort claims (e.g., intentional inflictions of emotional distress, etc.) in the same action as a Title VII claim which, if substantiated, could result in an award of compensatory and/or punitive damages. 2

Remedies at the state and local level may be more expansive than under federal law. For example, under New York State's Human Rights Law, a successful litigant may be entitled to a "make whole" remedy and an award to compensate him or her for mental anguish. The same is true under Connecticut's Human Rights and Opportunities Act. New Jersey's Law Against Discrimination goes further by expressly authorizing the N.J. Division on Civil Rights to award treble damages where warranted to provide appropriate redness to harassment victims and to provide a powerful deterrent to employer recidivism. While punitive damages are not available in New York through administrative complaints, it is unclear whether punitive damages are recoverable if a sexual harassment plaintiff chooses to bring his or her claim directly in state court, as is his or her right under Sec. 297 of the Human Rights Law, rather than before the Human Rights Division.

New Amendments to New York

City Administrative Code Provide

Greater Employer Pitfalls

Until recently, the rights of sexual harassment plaintiffs who made claims under New York State's Human Rights Law or the Administrative Code of The City of New York (The "Code") were almost identical. With passage of "Intro 465-A," effective on September 16, 1991, a victim of proven sexual harassment who brings his or her case under the Code, as amended, has substantially greater rights. Intro 465-A, which represents a comprehensive revision of New York City's Human Rights law, now provides for injunctions in employment discrimination and sexual harassment cases, enables a successful litigant to recover both compensatory and punitive damages as well as attorney's fees, and provides for civil penalties up to $100,000 for offenders. Another newly enacted provision of the Code permits victims of sexual harassment to sue not only their employer but the individual supervisors at whose hands the unlawful conduct occurred. Finally, the new Code provisions permit an aggrieved employee to bring his or her action in the State Supreme Court in the first instance without first filing an administrative claim and suffering the red tape and time lag entailed in that process.

PREVENTION AND REMEDIES

Armed with a basic understanding of the laws which prohibit sexual harassment in the workplace and the evolution of the case law pertinent to those laws, we now come to the individual employer's most important question: What can I do most effectively to insulate my business from the type of environment which foments such claims? This is indeed a critical question in light of 1) the well-documented prevalence of sexual harassment in the workplace and 2) the possibility that an employer will, at one or more times during its existence, be compelled to defend sexual harassment claims regardless of whether they be meritorious or truly devoid of merit. Proper preparation, such as promulgation of thorough policies and procedures for dealing with such claims, will be invaluable in an employer's efforts to withstand claims that are totally devoid of merit as well as those which may be somewhat less clear cut. First, one should know who will be held accountable and under what circumstances.

Tangible Job Benefit Harassment

In cases of tangible job benefit sexual harassment, an employer will be held stricly liable. The principles of agency will apply and an employer will thus be held liable for the unlawful acts of its supervisors or agents. An employer may nonetheless successfully mitigate its damages or even avoid a finding of liability altogether if it promptly and effectively makes the aggrieved employee whole for his or her loss and takes appropriate action to ensure that there can or will be no repetition of the conduct complained of.

Hostile Work Environment

Harassment

Employer liability for hostile work environment sexual harassment is not so clear. It is dependent upon the status of the individuals who are responsible for creating the allegedly offensive work environment, the ability of the employer to discover its existence and the employer's prompt and forthright attempts to correct or eradicate the problem once knowledge of it has been acquired.

Clearly, the more authority possessed by the supervisory-type employee, the more easily it will be found that he or she speaks for and binds the employer by his or her acts. Thus, an employer may be bound by the harassing acts of a supervisor more readily than by those of a victim's non-supervisory co-workers. However, it should be noted that there may even be instances in which an employer will be found liable for unlawful sexual harassment perpetrated not by its own employee, but by a non-employee third party. This may occur more readily in a servic- type business in which a patron or client of the employer is the individual responsible for creating a hostile or offensive work environment.

Condonation

In those situations in which an employer's liability for the creation of a hostile work environment is premised upon acts of low-level supervisors, co-workers or non-employees, the crucial questions in determining whether liability will attach are:

* Did I as the employer know what was going on?

* If I didn't, should I have?

* Now that I know about it, what am I going to do about it?

EEOC Guidelines suggest that where an employer knew or should have known about the conduct underlying the hostile work environment and did nothing to correct it or acted too slowly to correct it acted insincerely, liability is likely to attach. Employer condonation of a hostile or offensive work environment is thus the single most important element in assessing an employer's exposure both in terms of liability and damages. Fortunately, it is also the element which an employer has most within its power to change.

THE STEPS TO TAKE

A Sexual Harassment Policy

The first step to take and the one in many instances which will make it clear to your workforce that you mean business is to promulgate a formal, written sexual harassment policy that should be disseminated to all employees, either in the form of inclusion in your personnel policy manual, as a posting on employee bulletin boards or as a circular to be periodically included along with employee's paychecks or other pertinent documents. The text of the policy will, of course, vary based upon the particular industry, the general educational background of the staff, firm or workplace culture, etc. In essence, the policy should briefly define unlawful sexual harassment and state that any employee conduct which falls within that definition--or arguably may be characterized as such--will not be tolerated and that those employees who, notwithstanding the policy, engage in such conduct or activities will be disciplined up to and including discharge.

A Grievance Procedure

It is of equal importance that a grievance mechanism be established in order that employees who perceive themselves to be the objects of sexual harassment have a comfortable, efficient and effective process to obtain redress. The policy must unambiguously provide a mechanism for addressing an employee's sexual harassment claims. It is crucial that where such claims involve the affected employee's supervisor, he or she be permitted to address his or her concerns to higher-level management in strict confidentially. If the employer's infrastructure permits, a right of further appeal is useful.

The policy must also provide for a thorough investigation of the allegations--usually within a specified and relatively short time frame. The policy must make it clear that resort to the procedure will not be ground for retaliation against a complaining employee and that retaliation by the employee accused of sexual harassment or other employer representatives will be treated in the same fashion as the unlawful sexual harassment itself: discipline up to and including discharge.

Enforce Your Policies

Mere adoption of these policies, while helpful, will not in itself insulate an employer from liability. Quite to the contrary, an employer that promulgates such policies and then proceeds to ignore them or to apply them unevenly or in a perfunctory fashion will be found to have condoned the unlawful activity in the same ways as an employer that has no written policies in effect.

Employer investigations must be undertaken in earnest. This means that any witness to the events in question should be interrogated. Merely asking the alleged offender for his or her version without taking further steps as may be necessary to get to the heart of the matter will not suffice.

The reasons for this are two-fold: 1) most employers do want to know what is happening in the workplace and how to eradicate unlawful conduct, and 2) an employer's ability adequately to redress a complainant will hinge largely upon how seriously he or she perceives the employer is in responding to his or her complaint. You can show that you are serious by conducting a real investigation of the allegations giving rise to the complaint and by taking appropriate remedial action.

Remedial Action

If the investigation reveals merit in the complainant's allegations, you should acknowledge this fact and take appropriate corrective action. Corrective action should not only include discipline for the offenders, but should also encompass employer efforts to correct the hostile or offensive work environment. This may take the form of a transfer (i.e., assigning the supervisor to different duties or, in appropriate and non- retaliatory circumstances, transferring the complainant to other or more comfortable duties). Even where you conclude that no specific corrective action is necessary, it may be appropriate to recirculate your written anti-discrimination policy. While institution of these policies and appropriate efforts to enforce them will go far to insulate your workplace from the root causes of sexual harassment as well as from the claims of employees who fall victim to sex discrimination, obviously each case must be handled with sensitivity and on its own merits.

Don't Retaliate

It is important to remember that employer retaliation against an employee for seeking to enforce his or her rights, either through an internal grievance mechanism or through institution of a charge or complaint of employment discrimination with an administrative agency, is as unlawful as sex discrimination. Title VII as well as virtually all state and local anti-discrimination laws provide a separate and distinct cause of action for employees who are victims of retaliation for grieving sex discrimination, filing charges alleging such discrimination or testifying in support of such charges. Moreover, while an employee may have a difficult task to satisfy his or her burden of proving the underlying sexual harassment, the burden of proving retaliation based upon the exercise of his or her rights is usually far easier. The point to remember is don't engage in any conduct that may arguably be viewed as retaliation no matter how angry, upset or frustrated you may be over the filing of the charge. Forms of conduct which may be characterized as retaliation are termination of employment on a pre- textual basis, demotion, involuntary transfer or any other job action that seeks to punish or may be construed as punishment for the exercise of statutory rights.

Perhaps the one question that I have fielded most often in my years of practice in this area has been "do you mean I can't even tell my secretary that she's wearing a pretty dress?" The answer to this question, as with many others in this area of the law, boils down to the basic question of sensitivity.

* Will such a statement embarrass her?

* Will the compliment, if made in a group setting, result in untoward inferences being drawn?

* Would you like your spouse to be required to endure similar treatment from her boss?

Honest answers to each of these quetions will probably provide the right answer to the initial inquiry.

(1) A federal court sitting in New Jersey, suggesting an appropriate formulation to be adopted by the New Jersey state courts, has alternately constructed a five-prong test for establishing a sexual harassment claim as follows:

"(1) the employees suffered intentional discrimination because of their sex; (2) the discrimination was pervasive and regular; (3) the discrimination would detrimentally affect the employee; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability."

(2) Although the vast majority of complaints alleging sexual harassment are brought by female employees against male harassers, the law also protects aggrieved males. In a recent study, the New York State Division of Human Rights reported that of 1,349 verified complains of sexual harassment filed between April 1, 1984, and October 31, 1989-- a shocking small number--approximately 10% of them were filed by men.

Jeffrey P. Englander, Esq., is a partner in the New York City law firm of Morrison Coben Singer & Weinstein where he practices principally in the area of labor and employment law, with a concentration in employment discrimination matters. He has litigated cases before all federal, state, and local employment-related administrative agencies as well as in state and federal courts. Mr. Englander counsels clients regarding promulgation and implementation of appropriate employment and personnel policies and lectures on a wide variety of employment-related topics.