IT Employment

Hostile work environment: A manager's legal liability

The number of lawsuits involving hostile work environments is increasing every year. As a manager, you can be held liable for cases that happen under your watch. Find out how to keep your workplace free of sexual harassment.
By Toni Bowers and Brian Hook

Most people became acutely aware of the term sexual harassment in 1991 when Anita Hill took her place at the witness table and testified against Supreme Court Justice nominee Clarence Thomas. In fact, that year the number of sexual harassment cases reported in corporate America increased 58 percent and have climbed steadily ever since.

If that statistic doesn’t get your attention, consider that the average jury award against employers in such situations is $250,000. That amount often triples when attorney fees and litigation costs are added to the mix.

Then consider the fact that managers can be named as codefendants in harassment lawsuits. All this adds up to the fact that IT managers need to take harassment extremely seriously. Here is what you need to know to maintain a harassment-free (and lawsuit-free) workplace.

Defining the hostile work environment
According to the law, there are two forms of sexual harassment:
  • Quid pro quo harassment, which means "this for that," is where a supervisor threatens to fire or not promote an employee if he or she doesn’t have sex with that supervisor.
  • Hostile work environment harassment is where speech or conduct is “severe or pervasive” enough to create a hostile or abusive work environment. Examples of inappropriate conduct of a sexual nature include sexually oriented jokes, sexually explicit e-mail, screen savers, posters, cartoons, and graffiti, and unwanted verbal and physical contact. The standard used by civil rights agencies and courts in determining whether a hostile work environment exists is whether a reasonable person, in the same or similar circumstances, would find the conduct offensive.

Without saying a word, a manager can be part of the harassment
The definition of hostile work environments sometimes confounds legal scholars because it often entails so many subjective standards of behavior. But here’s something not subject to interpretation: You, as a manager, may be innocent of any kind of sexual harassment yourself, but if the workplace you manage is construed as sexually hostile by any one of your employees and you don’t take appropriate action, you and your company can be held liable in a court of law.

Consider these recent cases: In Faragher vs. City of Boca Raton (No. 97-282), the Supreme Court ruled that companies may be held liable if supervisors sexually harass workers even if the employees do not report the harassment. In Ellerth vs. Burlington Industries (No. 97-569), the Supreme Court ruled that companies may be held liable even if the employees suffered no tangible loss. There have also been cases in which a manager was named as codefendant with the company for not preventing harassing behavior within his or her staff or for not taking appropriate action after a report was made.

Put it in writing
Chrys Martin focuses on employment law from the management perspective in the Portland, OR, office of Bullivant Houser Bailey. She said that managers have “the legal responsibility to make sure the workplace is free from harassment or discrimination.”

“Managers should ensure that their employees do not feel uncomfortable because of behavior in the workplace, such as teasing, taunting, jokes, and inappropriate gestures,” said Martin.

To help create this environment, every employer needs a comprehensive policy that prohibits all types of harassment. “The policy needs to include a definition of what could constitute harassment or create a hostile work environment, information on who to report to, and a nonretaliation provision,” said Martin.

Employees must also be provided with a copy of the company's policy and trained on what constitutes harassment and discrimination. In addition, employees need to know what steps to take if they become victims of such behavior.

Carol Merchasin, a partner at the Chicago office of Seyfarth Shaw, also works in the area of employment law. She designs and develops training sessions for clients on a wide range of employment law topics, including the Internet and dating relationships between managers and subordinates.

According to Merchasin, when courts rule against a plaintiff in a sexual harassment suit, many times it’s because a company can prove that it had a detailed harassment policy in place and that it took appropriate action when a report was made. Such measures can reduce a company’s and a manager’s liability.

Be professional and follow procedure
Managers need to know what is going on in the workplace at all times and be aware if inappropriate behavior exists, according to Martin. They also need to set an example by not engaging in harassment themselves and by stopping it immediately if they hear it or see it.

Merchasin said that it is important for a manager to use caution in the “danger zones, such as comments on personal appearance, jokes, cartoons, and nicknames that demean others on the basis of their race, gender, ethnic origin, religion, age, disability, and sexual orientation.”

“Remember, harassment can be created even if you did not intend to harass anyone. Even if no one complains to you, you need to be alert to conduct that is inappropriate and make sure that you put an end to it,” Merchasin said.

All violations must be reported immediately to the human resource department. Martin said, “The employer must take prompt remedial action to stop the harassment and make sure it does not recur, including discipline or termination of the offenders if need be.

“Employers have an obligation to maintain a workplace free from harassment and discrimination. They must stop behavior when they first learn of it rather than waiting until someone complains,” said Martin. “It is critical that employers train all managers and supervisors on what constitutes harassment and discrimination and how to deal with it if it occurs.”

The Internet
The Internet has become a lightning rod for harassment issues in all types of organizations. For example, in late May 2001, the U.S. Equal Employment Opportunity Commission (EEOC) determined that the Minneapolis Public Library may have permitted a hostile work environment by giving library patrons unfettered access to the Internet, which resulted in the display and printing of explicit sexual images on the library's public Internet terminals. The library had not installed filtering software due to free speech concerns, and had instructed the employees to simply avert their eyes when passing the terminals.

With the use of the Internet and e-mail to find, display, and share pornography, helping to prevent lawsuits has become a big issue for IT. IT managers must not only be concerned with their company's employees, but also with the conduct of third parties, such as customers, suppliers, and a group found inside every IT organization—contractors.

IT managers should make sure their IT organizations install and regularly update firewalls and sophisticated filtering software, and monitor terminal usage logs to detect when users are accessing, or even attempting to access, prohibited materials.

All third-party contractors and their employees who will be working on the premises should sign a written agreement that says they won’t access inappropriate sites or send inappropriate e-mail. The agreement should also disclose that the company monitors Internet and e-mail use and that anyone who violates the policy will be subject to sanctions, including contract termination.

Tips for keeping your workplace harassment-free
To prevent a hostile work environment, IT managers should:
  • Create a sharply written policy that specifically addresses a hostile work environment.
  • Amend Internet usage policies to specifically address the issue of sexual harassment.
  • Train employees on what sexual harassment is and how to avoid it.
  • Reach out and inquire if a problem is suspected.
  • Take each complaint and report seriously.
  • Look into complaints and reports immediately.
  • Know the policies and procedures.
  • Document all information gathered in the investigation of a claim.
  • Don’t overreact and don’t jump to conclusions. Managers who act too zealously toward an accused employee could end up in court just as quickly as those who do nothing.
  • Communicate with involved parties, but protect privacy and confidentiality rights.
  • Stay connected! Watch extra closely for any signs of a hostile work environment.
  • Update firewalls.
  • Use filtering software and monitor usage logs.

About

Toni Bowers is Managing Editor of TechRepublic and is the award-winning blogger of the Career Management blog. She has edited newsletters, books, and web sites pertaining to software, IT career, and IT management issues.

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