Not in my company: preventing sexual harassment.

"ABC Co. was convicted of sexually harassing female employees." Does that sound like the kind of free advertising that would help your organization? No, we wouldn't like to see our businesses get that kind of new exposure, either. As business managers we have many issues to confront, and sexual harassment in the workplace is one of them.

Sexual harassment isn't a problem for human resources and the lawyers to solve. They are just responsible for cleaning up the mess and paying the lawsuit awards after the fact. We', the organization's managers, are responsible for preventing sexual harassment.

Sexual harassment is bad business: The Equal Employment Opportunities Commission has shown a 150 percent increase in sexual harassment charges filed since 1992. Poor morale, decreased productivity, and increased absenteeism, along with financial and legal costs, are just some of the negative aspects of an ineffective or nonexistent sexual harassment prevention program. With these potential costs and hazards in mind, companies must take proactive steps to protect themselves.

The $34 million Mitsubishi case and the recent $10 million Dial settlement got headlines, but sexual harassment is also a major problem for the small business community. We conducted a survey of companies that have between 15 and 100 employees and found that one out of every five companies reported having had sexual harassment claims filed against them.

The purpose of this article is to describe the relevant legal framework and provide you with a management system to make sure you aren't one of those companies. While our recommendations apply to larger firms, we have found that it is the smaller companies that have the strongest need to increase their focus on sexual harassment prevention.

Sexual harassment law

While you don't need to be a lawyer, you do need a basic understanding of sexual harassment law. The major pertinent legislation is Title VII of the Civil Rights Act of 1964. This federal law applies to organizations with 15 or more employees. Title VII never mentions the term "sexual harassment." Instead, it prohibits job discrimination based on race, gender, color, religion, or national origin. The Supreme Court has ruled that sexual harassment is a form of gender discrimination. The courts have issued many written definitions and interpretations of sexual harassment, which we will describe in this section. The courts have defined two forms of sexual harassment:

* Quid pro quo harassment. A common definition is "this for that." In operational terms, some condition of employment such as salary or promotion is dependent on the employee submitting to sexual advances or conduct. This type of harassment also applies to the negative form--if you don't submit, you will be fired. In some ways this is the hardest form of harassment to prevent. That is because it takes only one instance of quid pro quo harassment to make the organization liable. In addition, the Supreme Court has ruled that the threat doesn't have to be carried out for harassment to have occurred.

* Hostile environment harassment. These situations relate to the workplace environment and are more subject to the court's interpretation than quid pro quo harassment is. A hostile environment consists of such things as sexually explicit photos or telling sexual stories or making lewd suggestions--actions that are "unwelcomed" by the person complaining. Since what is unwelcomed will differ by person, management should set fairly strict rules as to what materials are displayed in the workplace and what actions are permitted.

We need to know that even if the harassment is caused by a low-level supervisor or group of employees, the responsibility rests with the organization. Keep in mind that the law protects employees against sexual harassment from members of the same sex. Since sexual harassment relates to gender, not necessarily sex, a person can be guilty of harassing someone (male or female) even though a demand for sex was not made.

In addition, people can be victims of harassment even though they are not directly harassed. For example, suppose Supervisor Al promises Employee Carol a large raise if she has sex with him. Carol submits and gets the raise. Carol tells another employee, Sarah, who received a normal raise. Sarah is the victim of sexual harassment and can file a third-party complaint against the organization.

Getting worried? In addition to compensatory damages, a victim can receive punitive damages as described in the Civil Rights Act of 1991.

But instead of focusing on those details, let's look at the results of some 1998 Supreme Court decisions that will help us minimize sexual harassment liability. The court ruled that in cases where the employer hasn't taken some tangible employment action against the victim (such as firing or demoting the person being harassed), the organization may protect itself using the affirmative defense. That defense is that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior and that the complaining employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer. You can provide an affirmative defense by developing an effective management system to prevent sexual harassment.

These are the high points of federal legislation and court rulings related to sexual harassment. There may be state or local legislation in your area that also must be considered.

For example, in New York State the law appears to parallel the federal approach, but the New York law applies to firms with four or more employees versus the federal minimum of 15. Thus, many firms that are exempt from the federal law are covered under the New York State law. The complexity of the federal sexual harassment law and specific state and local legislation make it particularly advantageous for companies to use the advice of a competent employment law attorney

Now let's take a look at a management system for preventing sexual harassment. Before disseminating a policy and program in your company, we recommend that you review them with an employment law attorney.

Managing to prevent sexual harassment

The management system described below is a proactive way to be in compliance with all of the sexual harassment laws. This system includes simple steps that businesses can take to address the problem of sexual harassment in the workplace while taking into consideration their lack of resources. This management system entails four important steps.

1. Create and circulate a sexual harassment policy. The policy should outline the company's position against sexual harassment: "ABC Co. will not tolerate sexual harassment." A good policy should also provide a definition of what is and what is not sexual harassment. By defining sexual harassment, a policy will become easier for employees to understand. If a policy already exists, this is a good time to review it to make sure it reflects any recent changes in the law. The policy should also state the company's procedure for filing a complaint. A strong and effective policy may be able to deter potential harassment.

The policy cannot be effective unless employees are made aware of its existence. In the past, many companies claimed to have sexual harassment policies, but the employees were not always informed about the existence of this policy. If a policy exists but is not published to the employees, the policy is not effectively preventing sexual harassment in the workplace. One effective way to circulate a sexual harassment policy is to publish it in an employee handbook, therefore distributing it with all other company policies. This seems to be the most popular method used by companies. If you don't have an employee handbook, another method of publicizing a company's sexual harassment policy is to post a memo from top management informing all employees or the policy. To be more effective and provide reinforcement, companies should periodically redistribute this policy to their employees. Many companies provide two copies of the policy to each employee, with the requirement that one of the copies be signed and dated, acknowledging receipt, and returned to management.

2. Evaluate for the presence of sexual harassment. The intention of this step is to uncover inappropriate workplace behaviors. A company that evaluates and deals with sexual harassment is minimizing the costs of harassment while acting proactively to prevent it.

Organizational managers can use anonymous employee questionnaires or workplace inspections to evaluate for the presence of sexual harassment. These methods will often uncover inappropriate behaviors or items, which is the whole objective of this step. By implementing this step, employees will see that the company is serious about preventing sexual harassment. This will encourage employees to help keep the workplace free of all sexual harassment by following the lead of management.

Firms can be proactive by using this approach to confront sexual harassment in their workplace. If the evaluation does show the existence of harassment, the employer needs to act to correct this illegal behavior. By acting immediately, the company is acting reasonably to protect its employees from sexual harassment and therefore might not be held liable in hostile work environment cases.

3. Make training a priority. Many organizations do not make sexual harassment prevention training for all of their employees a priority. There are a number of reasons for smaller companies not providing sexual harassment prevention training. Many of these companies wrongly believe that sexual harassment does not affect them. Another reason used by small companies for not providing sexual harassment prevention training is limited resources. However, harassment prevention training for all employees does not have to be expensive. Just because a firm cannot afford to hire an expensive consultant to train their employees does not mean effective training cannot take place. The purchase of a $100 video combined with a discussion of the company's sexual harassment policy and procedures will display the "reasonable care" that will aid in complying with the affirmative defense. There are also programs from the U.S. Small Business Administration and local chambers of commerce available to train employees on this topic.

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