WILL IT HAPPEN TO YOU?
Marcia has worked for
a small manufacturer for over 10 years. Management has been stable
for most of that time. However, about a year ago Marcia’s supervisor
left the company and was replaced by a new employee named Burt. He
seemed like a nice guy, very friendly. Maybe too friendly.
Burt would
"accidentally" brush up against Marcia, but Marcia at this point
believed that it was totally innocent. Then little off-hand remarks
started to happen and with increasing frequency. Burt seemed to love
to tell dirty jokes, which didn’t normally bother Marcia, but these
jokes were usually in poor taste and just not funny. Burt would even
have Marcia come into his private office just to share one of these
tasteless jokes. One time he even had an open adult magazine sitting
on his desk, with a very graphic picture facing Marcia and not Burt.
She was feeling very uncomfortable around Burt, but this was her
boss. He had (at the very least) the perceived power to fire her and
certainly had a significant impact on any raises she might receive.
She did not know who
to talk to and felt that her distress was starting to effect her job
performance and personal life. One evening, while having a cup of
coffee with a friend, she finally broke down and confided with her
close friend. She told her how she was scared of Burt and was angry
of the whole situation. Her friend told her that their are laws
against such situations and she should sue her employer. She did.
Months later and huge lawyer fees paid, the company agreed to an out
of court settlement with Marcia. Burt was fired. Marcia’s home of 15
years would never be the same.
What could this
company have done to cut down their exposure to this type of suit?
Below are some of the things that they should have had in place. Do
you need to implement some of these ideas? It might save you a
lawsuit and/or a judgment.
SPECIFIC STRATEGIES
FOR SEXUAL HARASSMENT PREVENTION:
Any effective sexual harassment
policy should contain four essential elements:
1. The policy should contain a
clear and unequivocal prohibition of sexual harassment.
2. The policy should describe
what kinds of conduct can constitute sexual harassment.
3. The policy should warn of the
consequences of violating the policy.
4. The policy must establish a
complaint procedure that gives the employees an avenue to
complain when they believe themselves to be victims of sexual
harassment. This may be the most important as far as avoiding
claims and liability.
The complaint
procedure must provide for the resolution of complaints in a fair
and impartial manner. This means that when investigating and
resolving complaints, the employer must be sensitive to the rights
of the accuser and the accused alike. On the one hand, the employer
must take care that its response doesn’t raise an issue of
retaliation by the accuser. It is against the law to take any
adverse action against an employee because they make a claim of
sexual harassment. Also, the employer must take care to ensure that
its handling of the allegations does not set the stage for a lawsuit
by the accused for defamation of character.
An effectively, written sexual
harassment policy can avoid potential claims and liability for an
employer in three ways.
1. It educates employees
regarding what constitutes sexual harassment which may eliminate
some forms of sexual harassment.
2. When employees take advantage
of the complaint procedure, action can be taken to eliminate the
problem or resolve misunderstandings before they get worse.
3. The employer may not be able
to avoid liability for quid pro harassment (where a supervisor
demands sexual favors in exchange for a promotion or raise,
etc.), the employer should be able to avoid liability for
hostile environment harassment (crude , sexually offensive
jokes, XXX material, etc.) if the complaining employee does not
talk with the employer before filing suit.
An employer who does not have an
effective, written sexual harassment policy with a meaningful
complaint procedure cannot rely on the defense that the alleged
victim failed to report the conduct to the employer before filing
suit.
To be effective, an
employer’s sexual harassment policy must be communicated to all
employees. Distribution through posting and inclusion in an
employee handbook is a good idea. Employers also should go the extra
mile and conduct training to educate and sensitize employees at all
levels, not just supervisors, about sexual harassment. It is
critical that employers take all available steps to ensure that
their employees understand what prohibited sexual harassment is and
how the company will respond should it occur.
The previous
situation falls under the classification of Employment Practices
Liability Insurance (EPLI). Your normal insurance policies provide
little to no coverage. Buying EPLI coverage might be something you
should add to your current insurance program but proper management,
documentation and company policies are critical to protecting your
company from these suits.
Terry Koplan, CIC
HOFFMAN BROWN COMPANY
Sherman Oaks, CA
Acknowledgments:
Society of Certified Insurance Counselors
James K. Ruble Seminar
November 6, 1996
Employment Related Practices, Patrick A. Deem Sr
Back To Top
Hoffman Brown
Company is here to serve your
insurance needs.
