Sexual Harassment In The Workplace
(from Maine Townsman, November 1991)
by David Barrett, Assistant Director, MMA Personnel Services

As recent events in Washington D.C. have illustrated, sexual harassment in the workplace is and continues to be a major issue facing employers. Employers and employees need to clearly understand and address the problem of workplace sexual harassment. The primary legal focus for sexual harassment has been Title VII of the Federal Civil Rights Act of 1964 and the activities of the Equal Employment Opportunity Commission. For Maine employers, however, the primary new legislative activity has occurred at the state level. During the last session of the Maine Legislature, the Legislature passed new laws relating to sexual harassment in the workplace. These new requirements apply to all Maine municipalities.

Entitled "An Act to Effect Cost Savings and Ensure Worker Safety by Implementing Sexual Harassment Education and Training in the Workplace," the law places new educational and training requirements on all employers, including municipalities. The law requires that employers post in a prominent and accessible location a poster discussing the illegality of sexual harassment, the employer's internal complaint procedure, how to contact the Maine Human Rights Commission (which is the enforcement agency for sexual harassment laws in Maine), and a description of sexual harassment. A poster fulfilling this requirement is now available from the MHRC at a nominal cost. This poster may be reproduced. It is a good idea to post a copy of this poster in each work site. The law also requires employers to 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. This written notice must be provided within 90 days of the effective date of the legislation. The legislation took effect October 9, 1991, so the notice to employees must be delivered by January 7, 1992.

Postings

The new law requiring a poster outlining an employer's responsibilities with regard to sexual harassment has highlighted the need for employers to check their bulletin boards to be sure all required postings are in place and accessible to employees. The following is a summary of all the required postings, and where those posters may be obtained.  These posters should be posted in a visible place where employees regularly visit.  If you have employees at several work sites, you should post the notices in each location.  This is especially important if the employees at the work sites rarely visit the central location where the posters are displayed.

Required Federal Posters:

1) EEOC Consolidated Poster, EEOC in Boston: 617 565-3200
2) OSHA Poster, OSHA in Augusta: 622-8417
3) Wage and Hour Poster, Dept. of Labor/Portland: 780-3344
4) Employee Polygraph Protection Act, DOL/Portland: 780-3344

Required Maine Posters:

1) Sexual Harassment Poster, Maine Human Rights Comm./Augusta: 289-2326
2) Workers' Compensation Poster, Me. Workers' Comp. Comm./Augusta: 289-3751
3) Minimum Wage Poster, Maine Dept. of Labor/Augusta: 289-6400
4) Protection of Employees Poster, Maine Dept. of Labor/Augusta: 289-6400
5) Regulation of Employment Poster, Maine DOL/Augusta: 289-6400
6) Employment Security Law Poster, Bureau of Employment Security/Augusta: 289-3788
7) Smoking/No Smoking Policy
8) VDT Law, Employers with 2 or more VDTs on one site must post the VDT law, as of Jan. 1, 1992.

The posters listed above are generally available for free or for a nominal fee. Employers are generally permitted to make and post photocopies of these posters. This will save some money for employers with multiple work sites. Posters should be put up in each work site unless all employees regularly visit the central location where all posters will be displayed.

There are fines imposed on employers for failure to have the required postings available for employees to see. However, that may not be the major penalty for employers who fail to post the required notices.  In a case from the Midwest, Beshears v. Asbill, the employer was sued by employees for employment discrimination.  The employees, however, failed to file the case with EEOC within the required 180-day limit as prescribed by law.  The employees argued that the time limit should not be enforced because the employer had failed to post in a visible place the EEOC poster telling of the 180-day limit. The jury in the case ruled for the employees, and that decision was upheld by the judge on appeal.

The final major area covered in the law is training programs that all employers with more than 15 employees at a workplace must provide. The training programs are required 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.

Failure to comply with the requirements of the law will subject the employer to fines. Additionally, the Legislature raised the limits on civil damages for which an employer who has been found to have engaged in prohibited discrimination may be found liable.

All of this leads to the inevitable question of what actually constitutes sexual harassment. As we have seen in the recently televised hearings, definitions of sexual harassment can differ between individuals. Federal law and the Equal Employment Opportunity 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 a 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." [29 C.F.R. 1604.11(a)]

The definition can really be broken down into two major types of sexual harassment. The first is sexual advances or requests for sexual favors that have as their pressure the threat of adverse employment decisions affecting the employee. This is the definition that comes to mind for most people when they think of workplace sexual harassment. A supervisor asks a subordinate for some kind of sexual favor in exchange for a positive performance evaluation, a salary increase or a good word at promotion time.

The other component of the definition is simply the existence of behavior or attitudes in the workplace that lead to the creation of an hostile or offensive work environment. Examples of this type of sexual harassment may be the regular telling of sexual or lewd jokes, or the posting of pornographic photographs or pin-ups in the work site. It is important to note that employment 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.

An employer is liable for the sexual harassment actions of its supervisors "regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence" [29 C.F.R. 1604.11(c)] This makes it doubly important for employers to clearly state that sexual harassment will not be tolerated in any form, and that disciplinary action, up to and including discharge, may be taken against anyone found to be sexually harassing employees. Prevention in this case is the optimum situation.

Liability also extends to harassment between non-supervisory co-employees if the employer knew or should have known of the improper conduct and failed to take the appropriate corrective action. [29 C.FR. 1604.11(d)] You should treat all reported instances of sexual harassment seriously, and address allegations promptly, no matter how insignificant they may seem to you.

Obviously all cases of alleged sexual harassment are going to turn on the specific facts of the case. However the Courts have started to develop the framework that they will use to evaluate each case. The leading case on the subject of sexual harassment is Ellison v. Brady, 924 F.2d 872 (1991). This case outlined the tests to be used in determining the severity of the sexual misconduct and to what extent that behavior alters the work environment, and what actions the employer can take to protect itself from liability for the acts of sexual harassment between co-workers.

The Court in Brady imposed what it called the 'reasonable woman' standard for establishing a Title VII sexual harassment claim. Title VII is the employment related part of the Federal Act that outlaws many kinds of discrimination, including sexual harassment. That is, the Court will look at the acts of alleged harassment from the perspective of the victim of the harassment, using as the standard the outlook of a reasonable woman. More specifically, the Court will evaluate the severity of the harassment in term of its frequency and pervasiveness, the intent of the harasser, and the nature of the harassment. The Court also stated that the definition of what a reasonable woman might consider unacceptable behavior will change over time as societal standards change.

For employers, the best course of action is not to worry about how it will defend itself, but to thoroughly and regularly educate its work force so as to prevent sexual harassment from occurring. There are a number of steps employers should take immediately, some legally required and some that are good business practice.

1) Create and publish a written policy explicitly prohibiting any form of sexual harassment. Include a statement that employees found guilty of sexual harassment will be subject to disciplinary action up to and including discharge. Make sure employees have a copy of the policy and that it is available for all employees to see.

2) Enforce the policy. Take allegations seriously.

3) Establish with the policy an internal complaint procedure and educate employees on the procedure. There should be more than one individual to whom incidents can be reported, preferably one male and one female employee. Make sure the employees responsible for receiving complaints know the policy and understand their responsibilities.

4) Train all managers and supervisors. New state law requires that this be an ongoing and regular process. Make sure that they know what to watch for and how they should handle incident of sexual harassment they discover or have reported to them.

5) Investigate all charges promptly and as completely as possible. Don't wait for the problem to go away by itself.

6) Make sure the required poster is up and located in visible places in all work sites.

7) Annually provide written notice of the illegality and consequences of sexual harassment to all employees.

Employers should immediately take steps to comply with the new state law. The heightened awareness of sexual harassment in the workplace resulting from the Clarence Thomas confirmation hearings raises the possibility of an employee bringing to his or her employer a claim of sexual harassment. By acting quickly, the employer will have in place policies and procedures in effect that will enable it to respond to the complaint in a professional and proper fashion. While that may not limit your liability in the case, it will treat all persons concerned with the dignity and fairness they deserve as your employees.

Census Meeting

As a result of concern expressed by some municipalities which dispute the U.S. Census population figures, the Maine Legislature established a Commission to Investigate Census Data Irregularities. That Commission will be holding a meeting on Tuesday, December 10 at 10:00 a.m. in Room 437 of the State House in Augusta.

The Commission's task is to study the census data for Maine, identify any irregularities, and recommend appropriate corrective action. Members of the Commission are: State Rep. Joe Mayo of Thomaston, Rep. Mary MacBride of Presque Isle, Senator David Carpenter of Springvale, former State Representative Merle Nelson of Falmouth, Earla Parks, Town Clerk of Veazie, for State Representative Patrick McGowan, State Planning Director Richard Silkman, and attorney Ken Cole of Portland.

If you have a problem with the U.S. Census data for your municipality which you would like examined, plan to attend this meeting or call Legislative Aid Loren Andrews at 289-1438.