Minimizing Sexual Harassment in the Workplace

Today the topic of sexual harassment is as popular as it has ever been due to the #MeToo movement that became common in the entertainment industry just slightly over a year ago. Social media plays a big role in the #MeToo movement, it has persuaded an estimated 85-95% of women that have experienced misconduct in the workplace to come forward and report the occurrence. This movement has provided women with the confidence to report their traumatizing encounters after being scared to speak out for countless years (Jackson, 2018). Multiple victims have declared sexual harassment claims against Larry Nassar who is convicted as a serial child molester (formerly the USA women’s gymnastics team doctor) and movie mogul Harvey Weinstein, who has over 85 women accusing him of sexual harassment and assault (Jackson, 2018 & Millage, 2018). The amount of limelight that came from these harassers has made companies recognize the risk harassment portrays and have executed ways to manage those risks. The most important way a company can prevent and reduce sexual harassment claims is through internal auditors (Jackson, 2018).

Clarkson, Miller, and Cross define sexual harassment as the commandment of sexual practices in return for occupational advancement or other attributes, or language or action that is so sexually insulting that it produces a hostile work environment (2016). The origin of sexual harassment began in the 1970’s and was studied thoroughly by feminist Lin Farley, whose main interest was the harassment men provoked towards women. Although the term came about in the 70’s it was not until the 1990’s until awareness rose concerning the topic. Similar to the Clarkson, Miller, and Cross definition of sexual harassment Lin Farley also mentions the workplace in her definition and the reason being is workplaces receive the most reports of sexual harassment because they are protected under the employment discrimination law (Hemel & Lund, 2018). In present day it is notable that any persons of any gender can be a victim of unwelcome suggestions and the harasser can range from co-workers, to managers, to customers, etc. (EEOC.gov).

The two categories of sexual harassment are quid pro quo and hostile – environment. Quid pro quo harassment can be defined as an increase in job possibilities in exchange for sexual advances. The words quid pro quo are derived from a Latin background and can convert into the expression, “something in exchange for something else” (Clarkson, et al., 2016). Some examples of quid pro quo in the workplace would be an increase in wages, advancement, or other favorable attributes in return of some sexual service (Clarkson, et al., 2016). Sexual harassment can be deemed hostile – environment (previously known as condition of work) harassment when a framework of sexually inappropriate behavior is happening throughout the work environment and the employer has not taken any preventive measures to halt the actions. Some examples of hostile environment include but are not limited to humiliation, insults, and bullying (Clarkson, et al., 2016).

45% of men and 70% of women have been victims of sexual harassment (Jackson, 2018). Title VII of the Civil Rights Act of 1964 protects employees from encountering sexual harassment in the workplace and applies to proprietors that employ 15 or more workers (EEOC.gov). The section of Title VII that protects employees reads the “[prohibition of] employment discrimination based on race, color, religion, sex, and national orientation”. This law is located at the start of section 2000e of Volume 42 of the United States Code (EEOC.gov). It was not until the 1986 case Meritor’s Savings Bank v. Vinson that the Supreme Court ruled sexual harassment as a form of sexual discrimination ((Hemel & Lund, 2018). For sexual harassment claims in North Dakota that are not protected under Title VII, the North Dakota Human Rights Act may be able to offer assistance. Table 1. Illustrates the protected classes by discrimination under the North Dakota Human Rights Act (nd.gov).

The main risk of sexual harassment claims against a company is its reputation. For example the result of the accusations against Harvey Weinstein lead to his studio filing for bankruptcy, CEO Steve Wynn was accused of sexual harassment and Wynn Resorts stocks decreased drastically and he had to strip his name from a casino he was building along with the selling of his shares, and one last example is the resignation of the artistic director from Toronto’s Soulpepper Theatre Co., he was accused of sexual harassment and the Company lost $375,000 in federal funding and is in a potential position to be banned from funding in the future (Jackson, 2018). The second risk a company faces with sexual harassment charges is civil litigation claiming that the business did not complete their duty of creating a secure work environment (Jackson, 2018). On average employers spend $125,000 in settlement and defense costs regarding sexual harassment and discrimination laws (Beemer, 2017). A third risk in this kind of behavior occurring in the workplace is maintaining quality workers and hiring complications. Unwanted behavior by employers is going to make it more difficult for a company to succeed (Utz, 2019).

Having an internal audit is one critical key of preventing the risk of sexual harassment in the workplace. The responsibility to present assurance that policies pertaining sexual harassment are being met, the procedures are being followed, and reporting incidents is done correctly should be done by an internal audit. Some ways an internal audit can help a company refrain from sexual harassment risks are: to make sure policies are written clearly and include examples of intolerable behavior in the company codes of conduct. There will be liability issues if there is no policy addressing the topics of harassment and discrimination. Another way would be to have the company follow the EEOC guidelines. Lastly, providing a hotline that can be used for reporting issues and details on the topic and ensuring that all employees are well trained and educated by human resources on reporting/acceptable behavior in the workplace (Jackson, 2018).

Policy acknowledgment and retention is an important way of keeping a lawsuit regarding sexual harassment from occurring. A “zero tolerance” policy pertaining harassment and discrimination should be signed the day an employee begins work, copying and including an employee signature of all sexual harassment acknowledgements to the employees file, and have workers re-sign policies every year and every time a policy changes (Greene, 2018). Employees need to be trained thoroughly with demonstrated examples of sexual harassment, how your company’s complaint system works, and they need to be reassured of confidentiality and no retaliation when submitting complaints (Beemer, 2017). The law encourages that employers keep track of all harassment occurrences and allow complaints to be made to any company official, not just the employee’s supervisor (nd.gov).

One way of educating employees of sexual harassment policies is through bystander intervention, which is most common in the military and on college campuses. Jane Stapleton gives a cringe-worthy but realistic scenario of having a crude, unbecoming man working in the office who watches porn on the job and makes inappropriate gestures or slurs towards younger women. He is well known throughout the office and other employees tend to stay away from him, but no one reports the kind of unwanted behavior. Bystanders not speaking out on this kind of behavior is giving the harasser the impression that his actions are OK, instead of standing up to the harasser they are simply telling the new employees “Do not be alone with him”, therefore not stopping the perpetrating (Schulte, 2018).

Employees are often scared that if they intervene in a similar scenario to the one described above it might adversely affect their own career. Bystander intervention can be taught to employees by interrupting the situation, ease the environment, sidetrack the harasser, pry a possible victim away, or simply a change in conversation. If a bystander does not feel comfortable interrupting the situation they can approach the target afterwards and acknowledge what happened and offer assistance or to report the matter (Schulte, 2018).

An excellent example of the bystander intervention is present in the case Judicial Conduct Commission v. Corwin. In this court case, Judge Wickham Corwin, was persistent at seeking a relationship with his court reporter even though on countless occasions she told him she was not interested. He was constantly inviting her to lunch, for bike rides, talking about personal relationships, etc. creating a work environment that often made the court reporter feel uncomfortable. Corwin would frequently call the court reporter into his office for closed door personal discussions and the court reporter would purposely have a coworker interrupt their closed conversation after it reached a certain period of time. As mentioned earlier, having a coworker disrupt the environment is one way a bystander can step in to diminish the situation. The end result of this case was that Judge Corwin violated his administrative responsibilities found under N.D. Code Jud. Conduct Canons 3(C)(1) and 3(C)(2) which states he removed his employee based on bias or prejudice reasons and participated in acts that could be recognized as sexual harassment (ndcourts.gov).

Following the steps that a company should take to avoid sexual harassment complaints, here are some key steps that an employee should follow if they are experiencing harassment in a work environment. First and foremost, they should stay professional and inform the harasser that their actions or language is unwanted. If the harassment does not stop follow the business’s policy in filing a complaint and share all the details about the incident(s), including witnesses. Ways the business could fix the altercation should be the next step and if they are not taking appropriate action you may want to consider writing a complaint to North Dakota Department of Labor and Human Rights (has to be within 300 days of last incident) (nd.gov).

On the other hand, if an employer has received a sexual harassment complaint there are multiple ways to address the situation correctly. To begin the company should review the complaint thoroughly and locate help from the legal division or someone from HR to arrange a reply. Next, depending on the severity of the complaint notify the BOD or senior management and determine whether or not an outside investigation is necessary. Following those steps should be the preservation of evidence and no action taken towards the complainant to avoid any retaliation claims. After that, the company enlightens the harasser of the situation and decide whether or not he/she is able to maintain their position while the thoroughgoing investigation is taking place. Lastly, report if there is need for advisory to external auditors or shareholders and take action regarding any findings found throughout the examination of the complaint (Dean & Roth, 2018). Below is an example of a case where a sexual harassment claim was made and the claim was not taken legitimately, leaving the defendant responsible for negligent supervision and retention.

In the case Richard v. Washburn Public Schools Leah Richard was working as a part – time custodian under Gary Fuchs, her supervisor, for the Washburn Public Schools (the District). Richard claims there were four specific encounters with Fuchs where he physically touched her inappropriately making Richard’s feel uncomfortable. Richard’s mother, Connie Kelsh, reported the third incident to the elementary principal, Holly Becker. Becker did not take further action to report the incident, only instructed Kelsh to contact the superintendent, Robert Tollefson. Kelsh did not go to Tollefson until Richard’s had her fourth unwelcoming encounter with Fuchs. The only action that the District took was ordering Fuchs to stay away from Richards and an improvement plan (ndcourts.gov). The district court concluded that after Kelsh reported the third incident the school should have taken further action regarding the hostile environment Fuchs created. The evidence provided assures the claim for negligent retention because a reasonable person could conclude that the District should have fired Fuchs after the claim was made (ndcourts.gov).

After reading over cases, it is hard for me to believe that if a sexual harassment claim in North Dakota or to the EEOC breaches the 300 day time frame (180 days for businesses with 15 or less employees) from the last occurrence then it is invalid (EEOC.gov). First off, the number of employees should not make a difference in the time frame. Secondly, people who file sexual harassment claims also tend to file some kind of emotional distress claim as well. Adding to that, some people might be embarrassed to open up about it and once they realize “That was not OK”, it might be too late. 300 days is essentially too short of a time frame to give someone who is experiencing that kind of harassment.

The two year limit on assault and battery charges should vary based on the situation. Regarding the Richard v. Washburn Public Schools case, Gary Fuchs touched her inappropriately multiple times and she was still in high school when that happened. That is too young to know what kind of action to take regarding the situation. Relating back to the #MeToo movement, it took women years to come forward. That traumatizing feeling of being harassed is something that a person remembers for their entire life and I am not sure putting a time frame of less than a year for discrimination and two years for assault is enough.

However, after researching the topic it is refreshing to see that people, mainly women are finally courageous enough to come forward and report this type of unwelcome behavior. From personal experience there is nothing more uncomfortable than having a supervisor or a customer talk inappropriately about you to someone else but loud enough for you to hear, or for them to directly make crude comments to you, it is humiliating. I have waited tables since I was 17, if a customer said undesirable comments to me, I would try to go back to that table as little as possible to avoid contact with them. The fact that I was scared to do my job efficiently because of the environment that was created is something that should not be tolerated. In the Richard v. Washburn Public Schools case, after Richard’s mother first reported the sexual harassment claim, the elementary principal justified the behavior of her supervisor, Gary Fuchs by saying “Well, that’s just how Gary is, rough” (ndcourts.gov). This is the main problem, downplaying the severity and actions of those who create a hostile work environment.

Having an internal audit and providing employees with sexual harassment knowledge and the correct training, education, and techniques are critical steps into avoiding lawsuits against a company. A business needs to be aware of the procedures to take once a claim is reported to stray away from any negligent retention cases like we saw in the Richard v. Washburn Public Schools case and teach employees acceptable behavior to refrain from any sexual harassment and biased claims like in the Judicial Conduct Commission v. Corwin case. Thankfully, the increase of the term sexual harassment and the popularity of the #MeToo movement has forced businesses to be more aware and take more responsibility pertaining to sexual harassment claims because it is something that should not be taken lightly (Jackson, 2018).

References

  1. https://www.eeoc.gov/laws/types/sexual_harassment.cfm
  2. https://www.nd.gov/labor/human-rights
  3. https://www.ndcourts.gov
  4. Beemer, J. M. (2017). Business Owners Must Take Steps Now to Prevent Discrimination in the Workplace. Workforce Solutions Review, 8(2), 25–26. Retrieved from http://ezproxy.minotstateu.edu:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=123643013
  5. Dean, U. A., & Roth, J. D. (2018). Received a Sexual Misconduct Complaint? 10 Steps Companies Should Take. Employee Relations Law Journal, 44(2), 39–42. Retrieved from http://ezproxy.minotstateu.edu:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=131227311
  6. Hemel, D., & Lund, D. S. (2018). Sexual Harassment and Corporate Law. Columbia Law Review, 118(6), 1583–1680. Retrieved from http://ezproxy.minotstateu.edu:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=132610149
  7. Greene, B. (2018). Ensuring that pass:[#]MeToo is #NotUs: Using HCM Technology to Combat Sexual Harassment. Workforce Solutions Review, 9(3), 10–14. Retrieved from http://ezproxy.minotstateu.edu:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=132838772
  8. Jackson, R. A. (2018). INTO the light. Internal Auditor, 75(3), 20–27. Retrieved from http://ezproxy.minotstateu.edu:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=129989251
  9. Millage, A. (2018). Where Have All Our Heroes Gone? Internal Auditor, 75(3), 7. Retrieved from http://ezproxy.minotstateu.edu:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=129989236
  10. Schulte, B. (2018). To Combat Harassment, More Companies Should Try Bystander Training. Harvard Business Review Digital Articles, 1–5. Retrieved from http://ezproxy.minotstateu.edu:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=132819940
  11. Utz, J. L. (2019). pass:[#]MeToo: Sexual Harassment and Executive Compensation. Journal of Pension Planning & Compliance, 44(4), 1–11. Retrieved from http://ezproxy.minotstateu.edu:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=132528530
  12. Jackson, R. A. (2018). INTO the light. Internal Auditor, 75(3), 20–27. Retrieved from http://ezproxy.minotstateu.edu:2048/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=129989251
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