SEXUAL HARASSMENT: What you don't do may come back to haunt you
(from Maine Townsman, January 2001)
by Antoinette Mancusi, Technical Advisor, MMA

It has been almost 10 years since the passage of "An Act to Effect Cost Savings and Ensure Worker Safety by Implementing Sexual Harassment Education and Training in the Workplace" (now codified at 26 M.R.S.A. § 806), yet many employers have still not complied with the law. This is an alarming fact considering the potential liability associated with ignoring the law's mandates, especially since sexual harassment claims, according to the EEOC (Equal Employment Opportunity Commission), are rapidly increasing.

According to EEOC, the number of harassment charges filed with the Commission and state fair employment practices agencies has risen significantly in recent years. The number of sexual harassment charges increased from 6,883 in 1991 to 15,618 in 1998.

Furthermore § 806's relatively straightforward approach to compliance—or at least the preliminary administrative mandates—are quite simple. The fact that an employer has failed to comply with the law's mandates is a difficult, if not impossible, position to justify especially when defending a claim in front of the EEOC, Maine Human Rights Commission (MHRC) or a court of law.

The purpose of this article is to provide a cursory review of the subject which, despite this last decade's media coverage and all the "sensitization" we have received, still eludes many of us. In addition, it is hoped that municipalities, which have yet to comply with the requirements of § 806, use this article, along with several compliance tools (see sidebar), as the impetus and guide for taking proactive steps toward compliance.

THE SYSTEM
Before getting started, it is important to differentiate between the two agencies involved in enforcing anti-discrimination laws. The MHRC is the state agency charged with enforcing state laws relating to all forms of discrimination (including employment discrimination). The EEOC is the federal agency charged with enforcing federal anti-discrimination laws relating to employment.

The EEOC's jurisdiction includes: 
o Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin; 
o Sections of the Civil Right Act of 1991; 
o The Age Discrimination in Employment Act of 1967, which prohibits discrimination against individuals 40 years of age or older, 
o The Equal Pay Act; 
o Title I of the Americans with Disabilities Act, which prohibits discrimination against people with disabilities in the private sector and state and local governments.

Since 1975 these two agencies operate together under a "Worksharing Agreement." The Agreement delineates how charges that are jurisdictional under both state and federal laws are administered, processed and reviewed by each agency. As a result of this agreement, the EEOC has authorized the MHRC to investigate charges on behalf of the EEOC for alleged violations of federal discrimination laws. The MHRC then forwards its results to the EEOC. Although MHRC decisions do not carry the weight of law, they can become the grounds for lawsuits.

Because of this meshing of federal and state anti-discrimination laws, employment discrimination charges (including charges of sexual harassment) are analyzed under a matrix of both federal and state law. As a result, regardless of how cumbersome this may be for the legal practitioner or municipal official, a thorough explanation of sexual harassment requires a switching back and forth between federal and state legal references.

WHAT IS SEXUAL HARASSMENT?
No writing on the subject would be complete without at least a brief review of the definition of sexual harassment. Although the definition of sexual harassment has not really changed in the past few years, recent case law imparts new dimensions to the subject matter in addition to new liability standards.

Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act and state law. It is important to note that according to EEOC, the standard of liability set forth in the decisions regarding sexual harassment apply to all forms of unlawful harassment (e.g., sex, race, color, religion, national origin, age or disability). As a result, the sample harassment policy developed with this article (see "Compliance Tools" sidebar) can be used to address all forms of illegal harassment.

The definition of sexual harassment is generally broken down into two kinds of actionable sexual harassment - "quid pro quo" and "hostile environment." Federal law (29 C.F.R. 1604.11(a)) and the Equal Employment Opportunity Commission, in addition to the Maine Human Rights Commission define "sexual harassment" as follows:
"…unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when; 
(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,
(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or
(3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."

Quid Pro Quo. The first kind of harassment "quid pro quo," (parts (1) and (2) of the above definition) is usually the more obvious kind, and consists of requests or demands (expressed or implied) which are of a sexual nature and which are made as a term or condition of employment. As a result, quid pro quo harassment usually involves a supervisor or someone in a position of authority. An example of this kind of harassment would be a supervisor asking a secretary out on a date in return for a salary raise or promotion. Sexual harassment would also exist if the secretary is denied a salary increase or denied a promotion based on his or her denial of the supervisor's request to date.

Quid Pro Quo & A New Strict Liability Standard. Recent federal case law (Burlington Indus v. Ellerth 524 U.S. 742 (1998) and Faragher v. City of Boca Raton 524 U.S. 775 (1998) suggests that in order for harassment to be actionable under a "quid pro quo" theory the harasser must have actually carried out threats — a "tangible" employment action must have been taken. According to the EEOC, "any employment action qualifies as 'tangible' if it results in a significant change in employment status. For example, significantly changing an individual's duties in his or her existing job constitutes a tangible employment action regardless of whether the individual retains the same salary and benefits. Similarly, altering an individual's duties in a way that blocks his or her opportunity for promotion or salary increases also constitutes a tangible employment action."

Again, the critical issue now is whether a tangible action was taken and if it was, the employer will be held strictly liable. What this means is that an employer will have no available defense in a court action if an employee suffers a tangible employment action. This is more reason than ever for employers to do all in their power to promote a work environment that is free from harassment (especially by supervisors).

Hostile Environment. If there is no tangible employee action by a supervisor or other person in a position of authority, liability may still exist under a "hostile environment" theory (part (3) of the above definition of sexual harassment). Hostile environment is simply the existence of behavior or attitudes in the workplace (by supervisors or co-workers) that lead to the creation of a hostile or offensive work environment. Examples of this type of sexual harassment may be the telling of sexual or lewd jokes, repeated requests for dates or the posting of pornographic photographs or screen savers in the work site, which create an offensive environment. It is important to note that actionable sexual harassment does not have to occur on the work site for it to be unlawful. Off the job conduct may create the same pressures or hostile environment that on the job conduct might.

Furthermore, although the Supreme Court has thus far not provided guidance as to employer liability for sexual harassment by co-workers, lower courts readily hold employers liable for such harassment if the employer was negligent, i.e., knew about the harassment and failed to take corrective measures. In Maine, due to 26 M.R.S.A. § 806's mandates, liability also exists if an employer fails to comply with this section of law.

Many factors are considered when determining whether activities rise to the level of creating a hostile environment and a case-by-case analysis is always required. Factors usually considered include:
o the reasonableness of the victim's reaction (under a "reasonable" man or woman standard).
o the nature of the offensive conduct.
o the pervasiveness of the conduct.
o the relationship of the harasser and victim.

Furthermore, as illustrated by the Supreme Court's decision in Faragher v. City of Boca Raton, in order for liability to exist, it does not matter whether the employer had a policy against harassment or whether the employer even had notice that harassment was occurring. In Faragher, the City of Boca Raton actually had a policy prohibiting sexual harassment, however it made the grave mistake of not distributing the policy to the employees working on the city's beach. Faragher, a female lifeguard, and other female lifeguards alleged that they were subjected to a variety of unwelcome advances, lewd and derogatory comments over a five-year period by their supervisors. The Court held that the city was liable because a hostile work environment was created by the supervisors' conduct.

As a result of the recent Faragher decision, a new "affirmative defense" has been created which according to the Court provides employers "credit" for preventive efforts. What this means is that employers may now be able to avoid liability or at least limit damages under a hostile environment theory of harassment! However, in order to establish the affirmative defense two conditions must be met:

1) that the employer exercised reasonable care to prevent and promptly correct 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 to avoid harm otherwise. 

Although this decision gives employers reason to celebrate, this is no time to let your guards down (no pun intended). Despite the positive implications for employers in compliance with the law, liability under a negligence standard is still a very real occurrence for employers failing to comply. Employers wishing to reap the benefits of an affirmative defense must act proactively. For municipalities that believe they are in compliance because of a written policy/procedure on point--it is time to take inventory—just having a written policy is not in itself sufficient.

The first condition necessary in establishing the affirmative defense can usually be met by a written and properly distributed sexual harassment policy and complaint procedure that includes a mechanism, which allows the employee to bypass the harasser. In other words, a complaint procedure that requires all harassment complaints to be filed with the town manager would not satisfy this requirement. In such an instance in the event the town manager is the alleged harasser, the employee would not be able to bypass him or her. This may seem like a very logical and simple procedure to most of you; nevertheless, many of the municipal harassment complaint procedures lack such a bypass mechanism. In addition to a policy/procedure, any training provided by the employer would also serve to demonstrate reasonable care to prevent such conduct. 

In order to prove the second prong, i.e., that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, the employer must have provided for such preventative or corrective opportunities. As will be discussed later, adhering to § 806's requirements serves us in meeting both prongs of the defense. 

Same Sex Sexual Harassment. Another fairly recent decision rendered by the Supreme Court provides us with insight into another evolving area of liability—same sex sexual harassment. In Oncale v. Sundowner Offshore Services, Inc. 118 S. Ct. 998 (1998), a male employee of an all male oil platform crew in the Gulf of Mexico was forcibly subjected to sex-related, humiliating actions that also included physical assault of a sexual manner and threats of rape. When Oncale was unable to obtain remedial action from the company he quit. Oncale filed a complaint against Sundowner alleging discrimination against him because of his sex. The United States District Court for the Eastern District of Louisiana held that there was no "cause of action under Title VII for harassment by male co-workers." Oncale appealed to the U.S. Supreme Court.

The Supreme Court unequivocally stated that "nothing in Title VII necessarily bars a claim of discrimination 'because of …sex' merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at discriminat[ion] …because of sex." The Court explained that not all harassment is "automatically discrimination because the words used have a sexual content or connotations." The Court further provided that the critical issue in such cases "is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." In summary, the Court in Oncale essentially stated that in order for same sex harassment to be actionable under Title VII, the complainant has to show that they were being treated differently than they would have had they been the other sex.

As a result of this limitation imposed by the Court, claims of same sex sexual harassment discrimination based on Title VII will no doubt be curtailed. However, it is important to note that municipalities may also be subject to liability for sexual discrimination due to sexual harassment based on the Equal Protection Clause of the Fourteenth Amendment of the Constitution. In Quinn v. Nassau County Police Department, 53 F. Supp.2d 347 (1999) a police officer was found to have been harassed by co-workers and his supervisor because of his sexual orientation. The court in Quinn held that a hostile work environment had been created and that it was actionable as a violation of the Equal Protection Clause. As a result, municipalities must pay special attention to this kind of sexual harassment despite the Supreme Court's decision in Oncale.

Bottom Line. What does all of this mean for the average municipal employer? As a result of this new case law, perhaps more than ever, it is imperative that employers take defensive steps to prevent sexual harassment (i.e., abiding by § 806's dictates on sexual harassment). Adhering to § 806's requirements not only serves to satisfy state law but also satisfies a portion of the affirmative defense just mentioned in the event an employer must defend a "hostile environment" sexual harassment allegation. Moreover, given the importance of avoiding strict liability under "quid pro quo" harassment — prevention is the optimum result — empowering staff through training may be the best manner to deter such unlawful conduct. One of the simplest ways to foster this goal is by fulfilling the mandates found in 26 M.R.S.A. § 806. If your municipality has not complied with § 806's sexual harassment requirements, this is the time to be taking proactive steps.

REQUIREMENTS UNDER STATE LAW
26 M.R.S.A. § 806 has placed educational and training requirements (which also intimates the adoption of a sexual harassment policy) on employers in the state of Maine, including municipalities. Failure to comply with the § 806 requirements may subject the employer to potential legal liability as previously mentioned. In summary, the law requires that:

o employers post in a prominent and accessible location a poster on sexual harassment;
o employers provide on an annual basis to all employees a written notice that includes the information contained on the poster, and a description of the employer's internal complaint procedure and of the protection against retaliation for employees who file a sexual harassment allegation; and 
o  employers with more than 15 employees at a workplace must provide training programs for new employees within one year of their date of hire, and additional training is required for supervisors and managers also within one year of their date of hire.

Workplace Poster. According to § 806, all employers must post in a prominent and accessible location in the workplace a poster regarding sexual harassment with language that does not exceed 6th grade literacy standards. Employers with more than one workplace should post one in each of their workplaces. The poster should contain the following information:

o the illegality of sexual harassment;
o a description of sexual harassment, utilizing examples; 
o the complaint or grievance process available through the Maine Human Rights Commission; and 
o directions on how to contact the Commission. 

Although this may sound complicated, the good news is that a basic poster meeting these requirements can be downloaded for free at the following web address: http://www.state.me.us/mhrc/shp.doc

A conspicuous omission on this poster is that of the MHRC grievance process which is required by § 806. According to MHRC Executive Director Pat Ryan, if the employer has the MHRC poster up, despite this omission § 806's poster requirement will have been met. As an aside, one of the first things the Commission will do when it initiates a sexual harassment investigation will be to request to see the poster - so, make sure you have one up or you will automatically be out of compliance!

Written & Annually Distributed Policy/Procedure. Employers must also distribute to their employees a yearly individual written notice (e.g., a policy), which should include at a minimum the following information: 

o the illegality of sexual harassment; 
o the definition of sexual harassment under state law; 
o a description of sexual harassment, utilizing examples; 
o the internal complaint process available to the employee; 
o the legal recourse and complaint process available through the Commission; 
o directions on how to contact the Commission; and 
o the protection against retaliation

Although the statute does not specifically state that a "policy" is required, the above information does well as a policy. If you do not already have a policy, check out MMA's web site or call MMA for a hard copy of the sample policy/procedure. Be sure to alter the contents in order to meet your municipality's specific circumstances. Also, make certain that any policy and/or internal complaint procedure chosen provides a bypass mechanism so that anyone making an allegation against a supervisor can avoid that supervisor. A good way to provide for the bypass mechanism is to establish more than one individual to whom incidents can be reported, preferably one male and one female employee. Make sure all employees responsible for receiving complaints know the policy and understand their responsibilities.

Information on the "legal recourse and complaint process available through the Commission," which is required by § 806, can be made a separate document and must be made available to employees requesting it. The complaint procedure is also available online at: http://www.state.me.us/mhrc/file_a_charge/index.html.

One of the most important aspects behind having such a policy is its yearly distribution. As noted in the Faragher case, the City of Boca Raton had a sexual harassment policy but because the policy had not been properly distributed, the city was unable to avoid liability. Apart from the Faragher decision, here in Maine, due to § 806, employers must annually distribute such a policy in order to comply with our state law. An easy way to ensure that employees receive their yearly sexual harassment policy is to include the policy once a year in the employees' pay envelope. It is strongly recommended that employees are made to sign an acknowledgement that confirms the receipt of such policy and that a record of the acknowledgement be kept in personnel files.

Education & Training. The final major area covered in the law is education and training programs that all employers with more than 15 employees at a workplace must provide. Despite the fact that the law only requires employers with 15 or more employees to provide training, smaller employers should also consider providing training. The training programs are required for all new employees within one year of their date of hire, and additional training is required for supervisors and managers also within one year of their date of hire. Despite § 806's specific requirements regarding the information that must be presented at trainings, employers have some flexibility as to how to devise the training program - in other words, the MHRC does not provide for a specific standard.

Training for new employees should include information on the following:
o the illegality of sexual harassment; 
o the definition of sexual harassment under state and federal laws and federal regulations, including the Maine Human Rights Act;
o a description of sexual harassment, utilizing examples; 
o the internal complaint process available to the employee; 
o the legal recourse and complaint process available through the commission;
o directions on how to contact the commission; 
o and the protection against retaliation. 

Managerial employees (in addition to the above training) should receive training within one year of hire that further includes:
o the specific responsibilities of supervisory and managerial employees;
o methods that these employees must take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints.

There are a variety of ways to provide for this training including videocassettes and live trainings by specific trainers in this area. MMA's Resource Center has a videotape series that municipalities can borrow in order to provide their employees with training. Also, please refer to the "Trainer's Referral List" provided by the MHRC.

No matter what kind of training the employer decides to provide it should make sure that an accurate record of the training along with date(s) and attendees is kept. In order for an employer to properly defend itself against a claim of sexual harassment it must be able to demonstrate that both the alleged victim and alleged perpetrator received the proper training. 

FAILURE TO COMPLY
For employers, the best course of action is not to worry about how to defend itself against an allegation of sexual harassment, but to thoroughly comply with § 806 and regularly educate its work force so as to prevent sexual harassment from occurring. In the event an employer does fail to comply with the law and the MHRC commences an investigation based on a sexual harassment claim, the employer will have a much more difficult time defending itself against the charge. Furthermore, in the event the case is brought before a court of law, chances are greater that a court will award civil penal damages, which are permitted under the Maine Human Rights Act.

Being in non-compliance is a precarious situation to be in and such municipalities are taking unnecessary risks given how easy it is to comply with the law. If your municipality has not complied with § 806, there are steps — some legally mandated and others which make good business sense — that should be taken immediately. Please refer to the checklist that accompanies this article for further guidance.

Compliance Tools (sidebar)

Please visit the MMA web site at www.memun.org or call MMA Legal Services, 1-800-452-8786, for a complete set of the following compliance tools: 
o Compliance Checklist
o Sexual Harassment Poster
o Sexual Harassment Policy
o Employee Acknowledgement of Receipt (for Policy)
o MHRC Complaint Process
o Trainers List