By Gregory L. Walterhouse, Bowling Green State University
The U.S. Equal Employment Opportunity Commission (EEOC) reports that in 2011 the Commission received 11,364 sexual harassment complaints down from a high of 15,889 in 1997. However, the recent proliferation of sexual harassment claims surfacing in the entertainment industry, media and Congress on the heels of the numerous claims of sexual harassment against Hollywood producer Harvey Weinstein is suggestive that many instances of sexual harassment are still not being reported and there is still work to be done.
Considering these statistics and allegations, do public safety agencies have their houses in order with regards to sexual harassment? A quick internet search indicates they do not. There is no benefit to singling out and identifying individual agencies in this article, but an internet search revealed many articles detailing claims of sexual harassment against police, fire and EMS agencies in the U.S., U.K. and Canada. This suggests that it may be timely for agencies to review their sexual harassment policies and procedures.
Defining sexual harassment
The EEOC defines sexual harassment as “unlawful harassment of a person (an applicant or employee) because of that person’s sex.” “Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors and other verbal or physical harassment of a sexual nature.”
Two types of sexual harassment have been identified.
- Title VII of the Civil Rights Act of 1964 prohibits quid pro quo harassment. Quid pro quo sexual harassment is based on a sexual favor in return for an economic or tangible condition of employment. In other words, the harassment affects a term, condition or privilege of employment.
- And, in Meritor Savings Bank v. Vinson the Supreme Court held that a “hostile work environment” is a form of sexual harassment actionable under Title VII. The Court also held that for sexual harassment to be actionable it must be sufficiently severe or pervasive “to alter the conditions of employment and create an abusive working environment.”
According to the EEOC, although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision such as the victim being disciplined, transferred, demoted or terminated.
Hostile work environment claims may be accompanied by claims of constructive discharge. Constructive discharge occurs when the employee’s working conditions are so intolerable that he/she feels compelled to resign. If the claim of constructive discharge is proven as a result of a hostile work environment, then the claim also becomes one of quid pro quo harassment.
Harasser’s may be a supervisor, co-worker or someone who is not an employee of the agency, for example a contractor or visitor. The charging party and harasser may be of the same or different gender. In Oncale v Sundowner Offshore Services the Supreme Court held that same-sex sexual harassment is actionable under Title VII. The Supreme Court in Faragher v. City of Boca Raton also held that employers are generally vicariously liable for the actionable harassment caused by supervisors
Affirmative defense
An affirmative defense is an assertion of facts and arguments that if true serve to defeat a plaintiff’s claim even if the facts in the complaint are true. Employers may have an affirmative defense against sexual harassment claims if they have taken reasonable steps to prevent and correct sexual harassment in the workplace. However, no affirmative defense is available when a supervisor’s harassment results in a tangible adverse employment action such as discharge (including constructive discharge), demotion, or undesirable work assignment.
The Court’s holding in Faragher provides guidance on establishing an affirmative defense.
First, there must be an established written policy with a strong statement prohibiting sexual harassment.
Second, the policy must provide a multiple avenue complaint procedure. There must be a provision in the complaint procedure that by-passes the immediate supervisor and the chain-of-command when necessary. The best approach is a provision for complaints to be made directly to the human resources department.
Third, the policy must be disseminated among all supervisors and employees. Simply disseminating the policy however is not sufficient. Periodic training on the policy needs to be conducted for all employees with preferably more advanced training provided to supervisors.
Fourth, complaints must be promptly and thoroughly investigated, and every attempt must be made to maintain as much confidentiality as possible under the given circumstances.
Fifth, the victim must be made whole with regard to any lost benefits or opportunities and prevent the conduct from recurring.
Finally, appropriate disciplinary action ranging from reprimand to termination must be administered against offenders. As with all discipline, the corrective action must reflect the severity of the conduct.
Once an employer has taken reasonable care to prevent and promptly correct sexual harassing behavior, the Court has held in Burlington Industries, Inc. v. Ellerth that an employer may raise an affirmative defense where a victim unreasonably fails to take advantage of preventative and corrective opportunities. However, absent a complaint, if an employer knows or should have known that either quid pro quo or hostile work environment harassment is occurring, it is incumbent upon the employer to immediately correct the behavior.
General policy guidelines
A policy must clearly and explicitly state that sexual harassment is strictly prohibited.
The policy must also make clear that there will be no retaliation against those who report harassment. It is important to note that any employee may report harassment not only those who are alleged victims. As stated previously there must be multiple avenues of reporting complaints. The policy must encourage an open culture where employees feel comfortable in approaching supervisors or human resources to report when such conduct is occurring in the workplace. The policy must be posted and distributed to all employees. Finally training on the policy should be conducted at least annually.
A hostile work environment is created by severe and persuasive conduct. While an isolated or single incident generally does not create a hostile work environment, it could if the single incident is unusually severe. What rises to the level of severe and persuasive is viewed by the courts from the objective standpoint of the “reasonable person.”
Employers should use the same approach in evaluating whether an incident is isolated or repetitive constituting severe and persuasive conduct. Employers must also understand it is not the intent of the conduct but how it was received. The guidance for this is whether the conduct is “unwelcome”.
Participation by the charging party can substantially complicate claims of sexual harassment.
Participation may range from participating in off-color jokes, using sexual terms in conversation or voluntary participation in sexual activity. Due to space limitations this cannot be discussed in-depth here, but employers should consider fraternization polices or use fraternization contracts for intimate employee relationships that my later turn bad and result in claims of sexual harassment.
Finally, employers must refrain from retaliating against charging parties, victims or witnesses. Neither the EEOC nor the courts look favorably upon claims of retaliation, and if proven awards against employers can be substantial.
About the Author
Greg Walterhouse is a full-time faculty member in the Fire Administration and Master of Public Administration programs at Bowling Green State University. He holds a Bachelor of Science degree in Management from Oakland University, a Master’s degree in Legal Studies from the University of Illinois and a Master’s degree in Management from Central Michigan University. Before joining BGSU he had over 35 years of experience in fire/rescue and emergency management with 18 years in upper management, including Manager of Emergency Services and Chief of the Rochester Hills (MI) Fire Department and Chief of the Mt. Pleasant (MI) Fire Department. He may be contacted at waltegl@bgsu.edu.
