Douglas A. Darch is an attorney with a Chicago law firm. He specializes in cases involving labor and employment law, having represented both large and small businesses. He shared with me the following timely observations on sexual harassment in the workplace.

Q. Please bring us up to date on the sexual harassment laws.
A. The U.S. Supreme Court issued three decisions in its last term addressing the issue of sexual harassment. Though many, if not most, practitioners do not believe the law has changed substantially, there are many lawyers and pundits who have trumpeted the three decisions as representing a major change in the law that threatens employers. Their 'noise' is likely to encourage more employees to file suits.

Now is a good time to review your sexual harassment policy and, if necessary, make any changes required by these three Supreme Court decisions. And if you do not have a policy, it is clear that you should implement one now. Our experience is that sexual harassment claims are most likely to arise in small companies or in the smaller operations of larger companies. Typically, this is attributable to a lack of awareness or oversight of the smaller operation.

Q. Where does sexual harassment originate?
A. There are four sources of sexually harassing behaviors for which the employer may be held liable. The four sources are: co-workers; direct supervisors; managers or supervisors who do not have direct authority over the employer; and third parties, such as customers, vendors, suppliers. The Supreme Court's decisions addressed only the employer's liability for sexually harassing conduct by a direct supervisor.

Q. When that occurs, how is liability assessed?
A. It is now clear that when a direct supervisor engages in sexual harassment, which results in a tangible job action, the employer is liable. When no tangible employment action is taken, the employer may avoid liability if it can establish: (1) the employers exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or otherwise.

It is also clear that an employer will be liable if it is negligent with respect to sexual harassment occurring in the workplace. The employer is negligent if it knew or should have known about the conduct and failed to stop it.

Q. What sorts of things should your company consider?
A. Have a sexual harassment policy. Have a complaint procedure. Train your supervisors. Train your employees.

Q. How does a company guard itself against sexual harassment?
A. We have prepared a checklist of practical considerations in light of these three Supreme Court decisions.

* Does the company have a policy that prohibits sexual harassment?
Is the policy disseminated to all employees?
* Does the sexual harassment policy require employees to report sexual harassment?
* Does the company's sexual harassment policy contain a grievance procedure or complaint procedure for employees who are victims of sexual harassment?
* Does the company's sexual harassment policy provide alternative avenues for reporting instances of sexual harassment other than to the employee's direct chain of command?
* Does the company's sexual harassment policy assure employees of confidentiality should a complaint be made?
* Does the company's sexual harassment policy clearly state that supervisors may not demand sexual favors as a condition of employment?
* Are employees aware of the procedure for reporting sexual harassment by customers, suppliers, vendors or visitors?
* Are customers, suppliers, vendors and visitors required to comply with the company's sexual harassment policy?
* Does the company require managers or supervisors to report sexual harassment or other violations of company rules?
* Does the company prohibit supervisors engaged in a consensual romantic relationship with a subordinate from evaluating or disciplining the subordinate during the relationship?
* Does the company require supervisors who are engaged in a romantic relationship with a subordinate to report the existence of that relationship?
* Does the company have a training program that explains both unlawful sexually harassing behavior and inappropriate behaviors?
* Does the company's orientation program for new hires include training regarding (1) the definition of unlawful sexual harassment, (2) the company's policy against sexual harassment, and (3) the company's complaint procedure?
* Does the company's training or orientation program explain supervisors are not permitted to evaluate employees or otherwise affect their jobs for reasons attributable to the existence of a romantic relationship between the employee and the supervisor?
* Does the job description of supervisory positions limit authority when a romantic relationship exists with a subordinate?
* Does the evaluation form for employees contain an acknowledgment by the employee that there is no conduct or relationship with the supervisor that could or did affect the evaluation itself?
* Does the company allow supervisors to terminate employees without obtaining approval of the human resources department?
* Do the company's termination procedures require that a meeting occur between a human resources representative and the employee who is subject to termination to determine where there is any reason the employee believes the termination is unwarranted or unfair?
* Does the company have a no-dating policy?
* Does the company have a written work rule or policy which prohibits inappropriate conduct?
* Does the company require employees to cooperate in investigations as a condition of continued employment?
* Does the company have a work rule that prohibits providing untruthful or incomplete information to the company during an investigation?
* Does the company require employees to report violations of company rules generally?
Are the company's investigators trained in conducting sexual harassment investigations?
* Does the company track sexual harassment complaints by supervisor, department or division?
Are training records as they relate to sexual harassment training maintained and up to date?
* Does the company coordinate workers' compensation case management with sexual harassment case management?

© 1998 Branch-Smith Publishing