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The Webb Report Archives 1998

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THE WEBB REPORT - October 1998

Advice on Conducting Sexual Harassment Investigations

The l998 conference of the American Bar Association held in Toronto, August 1-5, focused attention of sexual harassment and the ways in which organizations can effectively resolve complaints. In light of the recent Supreme Court decisions, how a company handles incidents has become even more important.

Management attorney Robyn M.S. Sembenini of Kauff, McClain & McGuire in San Francisco, listed steps that employers should never take as an appropriate response to a sexual harassment complaint:
Moving the complaining employee, unless the employee requests it;
Not taking action unless the complainant signs a statement;
Not taking action unless the complainant provides corroboration or other detailed evidence; and
Responding to information about harassment by telling the complaining employee to file an EEO charge or grievance.

Rather, Sembenini listed the following appropriate remedial actions for employers to take:
Remove the alleged harasser from the complaining employees' work environment pending results of the investigation'
Obtain both sides of the story personally from the parties involved;
Make a decision, even when the evidence in conflicting; and
Take appropriate disciplinary action.

Henry Hamilton, senior trial attorney with the Milwaukee district of the EEOC, said that initiating an investigation the same day, or the following day after a complaint is made, and then taking appropriate action against the harasser if the complaint is validated, is considered prompt, remedial action. However, Hamilton said, taking action within a week might be all right, but waiting longer than a week probably would not be considered prompt remedial action.

Hamilton also said that in addition to avoiding expensive liability, employers receive other benefits from prompt investigations of sexual harassment complaints, even when the investigation reveals that the behavior complained of is not actionable. Such benefits include the improvement of workplace morale and an opportunity for the employer to reaffirm its anti-harassment policy, to evaluate how well it is working, and to uncover any problems and "nip them in the bud," he said.

Sembenini said that after the investigation has been completed and the final report has been submitted, the employer should advise the complaining party of the results of the investigation. In addition, the employer should provide any necessary training, counseling, and support and assure the complaining employee that cooperating employees will not be subjected to reprisal for their role in the investigative process. Finally, Sembenini said, to avoid problems that could be created as a result of such an investigation, all employees should be counseled on the importance of maintaining the confidentiality of the interviews.

According to Hamilton, it is critical that individuals other than the complainant and the alleged harasser be interviewed. He cited the U. S. Court of Appeals for the Seventh Circuit's 1989 ruling in Brooms v. Regal Tube Co., which held that an employer's investigation was insufficient under Title VII where the only employees interviewed were the complainant and the accused harasser.


THE WEBB REPORT - September 1998

More on Supreme Court Decisions

The following information is from a public seminar, The New Rules: Sexual Harassment in the Workplace, conducted in August by Rosemary Daszkiewicz and Dianne Wright of Cairncross & Hemplemann, P.S., a Seattle-based law firm. While The Webb Report has previously reported on the Supreme Court's recent decisions, this material by Daszkiewicz and Wright provides additional clarity and detail to the Court's rulings and should help in understanding and implementing the rulings:

In the first half of 1998, the United States Supreme Court issued four decisions that addressed sexual harassment. The decisions are summarized below:

Oncale v. Sundowner Offshore Services, Inc., 118 Sup. Ct. 998 (1998).

The facts. Joseph Oncale worked on an oil rig in the gulf of Mexico on an 8-person, all-male crew. He worked a seven day on/seven day off schedule and lived on the rig during his work week. Oncale faced a barrage of sexual comments, including threats of rape. He also endured sex-related, humiliating acts by the rest of the crew, including the supervisor, and he was physically assaulted in a sexual manner. he testified that "if I didn't leave my job, I would be raped or forced to have sex."

The law. First, the Court concluded that Title VII permits a claim of sexual discrimination or harassment when the alleged victim and harasser are of the same sex. Second, the Court emphasized that a claim of harassment requires more than just the use of words that have sexual content or connotations. Instead, the plaintiff must demonstrate that the language exposed her or him to a disadvantageous condition of employment that members of the opposite sex were not exposed to. Title VII "does not reach genuine but innocuous difference in the ways men and women routinely interact with members of the same sex and of the opposite sex." It "requires neither asexuality nor androgyny in the workplace." It forbids only conduct t that alters the "conditions" of the victim's employment.

Faragher v. City of Boca Raton, _____ Sup. Ct. ____, 1998 WL 336322 (1998).

The facts. Beth Faragher worked as a life guard for the City for several summers. Most of the lifeguards were male, and they all shared the same lockers and showers. The lifeguards had no contact with any City employees except their supervisor. Although the City had a policy against sexual harassment, it was not distributed to the lifeguards or their supervisors. Faragher alleged that throughout her employment her supervisor touched her on the waist, neck, breasts and buttocks, made offensive comments about her body and referred to women in derogatory and offensive terms. Faragher never reported the harassment although she did talk to a higher level employee "as a friend." Another employee who suffered similar conduct reported the harassment once she found another job. The City immediately investigated and disciplined the harassers.

The law. The Court refused to attempt to distinguish between the different level of managerial authority. Thus an employer can be held vicariously liable for the actions of a supervisor, even absent actual knowledge. Importantly, however, the Court expressly adopted an affirmative defense if two factors are established. First, the employer must "exercise reasonable care to prevent and correct promptly any sexually harassing behavior." Second, the employee must "unreasonably fail to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise." Although the Court did not require employers to have policies against sexual harassment, it is difficult to image how an employer will establish "reasonable care" without one. Applying the law, the Court concluded that the City was precluded from relying on the affirmative defense because it had not distributed its policy to the beach employees.

Burlington Industries, Inc., v. Ellerth, _____Sup. Ct. ____, 1998 WL 336326 (1998).

The facts. Ellerth joined Burlington Industries in a sales position, reporting to Ted Slowik. during her 15 months of employment, Slowik made numerous boorish and offensive remarks and gestures. Some of these suggested that he would tie benefits to Ellerth's acquiescence to sexual demands, but Ellerth was never denied any tangible job benefits, and in face, received promotions from Slowik.

The law. The distinction between "quid pro quo" and "hostile work environment" harassment is of limited utility. Instead, the same standards will apply regardless of the type of harassment alleged. That is, if the harassment was committed by someone with supervisory or managerial power, the employer is liable even in the absence of actual knowledge unless the employer exercised reasonable care to avoid harassment and the employee failed to take advantage of opportunities to avoid harm.

Gebser v. Lago Vista Independent School District, 118 Sup. Ct. 1989 (1998).

The facts. Alida Gebser met high school teacher Frank Waldrop when she participated in Waldrop's book discussion group. Alida was in middle school at the time. When she went to high school, she took classes from Waldrop. He started having sex with her when she was in ninth grade, when he came to her home "to return books." They continued having sex on a regular basis for many months, always off school property, until a police officer happened upon them while they were having sex. Gebser never complained to anyone about the affair. While it was going on, parents complained about the language Waldrop used in class, resulting in an investigation and an end to the improper language.

The law. The lawsuit was based on Title IX, which prohibits sex based discrimination at schools that receive federal funds. The Court concluded that the differences in Title IX and Title VII required it to establish different rules for liability. The standard for school districts created by the Court imposes liability only if the student who suffered the harassment complains to an "appropriate person" who has "authority to address the alleged discrimination and to institute corrective measures" and that person acts with 'deliberate indifference" to the complaint.

Daszkiewicz and Wright suggest that employers use five Practical Steps to Implement the New Decisions: re-train employees, review policies, re-evaluate complaint procedures, re-vamp policies where needed, and re-circulate notices to employees. Specifically, they suggest:

1. Re-train managers and employees to understand the implications of the new rulings. Require all executive to participate and reiterate zero tolerance.

2. Review sexual harassment policies. A good policy: should prohibit conduct that is sexual in nature and prohibit conduct based on the gender of the victim; should set out specific channels an employee should take to report harassment; should adopt a zero tolerance because it is impossible to predict what will be considered actionable sexual harassment; should protect employees from retaliation.

3. Re-evaluate complaint procedures. Investigate quickly, comprehensively and objectively. A good procedure must provide alternatives which anticipate complaints about high level managers. Act on findings, punish harassers and perhaps alter the work assignment for the victim.

4. Re-vamp any policy's shortcomings and take other corrective steps in an attempt to comply with the new defense standard: employee must show she reasonably took advantage of corrective opportunities provided by the employer and the employer must show it exercised reasonable care to prevent and promptly corrected any harassing behavior.

5. Re-circulate notice to all employees reiterating the implications of the new Supreme Court decisions. Reiterate that sexual harassment policies are strictly enforced and restate the steps to be used to bring a complaint. Post and make policies available at all remote locations. Provide names and telephone numbers listing appropriate contacts.

Copyright, Cairncross & Hemplemann, 1998. Reprinted in The Webb Report with permission. Cairncross & Hemplemann is a client-focused, full service law firm based in Seattle, Washington. The firm's employment lawyers specialize in helping businesses solve legal problems by providing practical, no-nonsense solutions to today's complex issues. For further information, contact Rosemary Daszkiewicz at 206-587-0700 or e-mail: ends here


THE WEBB REPORT - August 1998

Federal Government Brings Charges Against NYC Police Department

The New York City Police Department agreed to eliminate pornography from the department in order to resolve a lawsuit brought by the federal government. The suit alleged that pictures of naked women hung in one stationhouse where the Playboy channel was regularly featured in the officers' lounge.

In a 41-page agreement, improvements were outlined that the department must make including better training and a revised policy regarding the display of sexually explicit materials to ensure that supervisors report any incidents to their supervisors. In addition, the department will require annual mandatory training on sexual harassment for every employee and will produce a video concerning the agreement and the department's commitment to eliminating gender discrimination.

U. S. Attorney Mary Jo White said in a statement that the agreement met the federal government's goal of ensuring "that all employees within the New York City Police Department are free to do their jobs without fear of sexual harassment from other members of the department." White said she believes the police department has committed itself to serious reforms of many essential components of its equal employment program.

Mayor Rudolph Giuliani called the agreement a "sound settlement" and said "I think every institution has had those issues over the last 10, 15, 20 years. I don't think the NYPD is alone in issues like that. It's not right, and the police commissioner wants to change it (the work atmosphere)."

Police Commissioner Howard Safir said the department will increase the personnel assigned to the Equal Opportunity Office by 50 percent and that he will issue a memo to the department explaining the terms of the agreement.

The settlement was a result of a lawsuit filed in federal court in Manhattan by the U.S. Attorney's office on behalf of Officer Sheryll L. Goff, who claimed she was repeatedly harassed at the 110th Precinct in the Elmhurst section of Queens while supervisors failed to intervene. The police department agreed last year to pay $320,000 to Goff, who no longer works for the department.

Goff had claimed she was the victim of unwelcome sexual comments and obscene phone calls to her home in an escalating campaign of sexual harassment that took place from 1989 until she was transferred from the precinct in 1992. She had been on the force since 1986.

In the lawsuit, the government alleged that the precinct's lounge television was regularly tuned to the Playboy channel, that pornographic movies were shown and that sexually explicit magazines and photographs were displayed in various places. The lawsuit also alleged that other officers blocked Goff's radio transmissions and made comments after she spoke such as "get a real job" and "get a life." It also said photographs and drawings of naked women and men, many with Goff's name or initials on them, were left on her locker, car and chair.



Supreme Court Rules on Three Sexual Harassment Cases

The U. S. Supreme Court recently ruled on three sexual harassment cases, further clarifying legal issues surrounding the problem.

In the first case, the court made it harder for students to sue school districts if teachers sexually harass them. The court said students can prevail in such lawsuits only if school officials knew about the harassment and did nothing to stop it. Many believe that this will mean the school districts will prevail in all but the most extreme cases.

In the 5-4 decision, the court said that sexual harassment was "unfortunately an all too common aspect of the educational experience" and that a teacher's misconduct "undermines the basic purposes of the educational system." However, the court said it would not hold districts liable under federal law for that misconduct unless school authorities knew about it and were "deliberately indifferent to it."

School districts hailed the decision, saying a different ruling would have left districts open to financial ruin. They said the ruling will apply to other educational institutions that get federal funding.

Furthermore, the court's reasoning could apply in other cases seeking to hold school districts responsible for student to student harassment. That question has split lower courts, and so far the Supreme Court has declined to answer the question.

Critics, however, say the Title IX ruling which applies to educational institutions who receive federal funding, is a double standard. Under Title VII of the 1964 Civil Rights Act, the law gives harassed employees a right to sue even in some cases where the organization is not aware of the harassment, when the harasser is a supervisor of the harassed. But with this Title IX interpretation, proof that some district official knew of teacher misconduct and did nothing about it is a high hurdle to jump, experts believe.

In the second case, Faragher v. Boca Raton, No. 97-282, the decision awarded judgment to a former lifeguard who sued the city of Boca Raton, Florida, for failing to protect her from years of harassment by her supervisors. In this case, the employee was forced to endure a sexually hostile environment where no specific sexual demands were made but where unwanted touching and crude remarks were pervasive, over a long period of time, and perpetrated by supervisory personnel.

The third case, Burlington Industries, Inc. v. Ellerth involved a female employee who was the target of sexual demands, but who resisted the demands and received no negative job impact as a result. In this case, the court made a large corporate employer automatically liable for a supervisor's harassment of a lower-level employee, even though the woman received a promotion, but gave the company a chance to show its defense with an effective policy and procedures that the employee did not use.

The second and third decisions of the court incorporated an identical, page-long set of rules under which harassment cases are to proceed. The rules established the following:

Employers are responsible for harassment engaged in by their supervisory employees;

When the harassment results in "a tangible employment action, such as discharge, demotion or undesirable reassignment," the employer's liability is absolute;

When there has been no tangible action, an employer can defend itself if it can prove two things: first, that it has taken "reasonable care to prevent and correct promptly any sexually harassing behavior," such as adopting an effective policy with a complaint procedure; and second, that the employee "unreasonably failed to take advantage of any preventive or corrective opportunities" provided.

The court said that in applying these standards to the Ellerth v. Burlington case, the plaintiff should have a chance at trial to prove her case and that, at the same time, the company should have the chance to assert a defense.

Both these decisions were 7-2 decisions and came on the last day of the court's term. The rulings received immediate praise from management and civil rights groups for bringing coherence to the law and for providing incentives for preventing harassment and dealing promptly with problems that occur.

"It's a win-win for employers and for the women of America," said Kathy Rodgers, executive director of the NOW Legal Defense and Education Fund. Her comment was seconded by a lawyer for the U.S. Chamber of Commerce.

"The Court responded to our cries in the wilderness for clear, bright-line standards so employers will know what to do," said Richard Conrad, senior vice president of the Chamber's legal arm. Rodgers called the rulings "fair and reasonable."

In summarizing the case, The New York Times reported that "the Supreme Court established the following rules for deciding when an employer is liable in a sexual harassment case:

"An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate or successively higher authority over the employee.

"When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.

"The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise...

"No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion or undesirable reassignment."


THE WEBB REPORT - April 1998

Key Legal Points Revealed Through Jones' Sexual Harassment Case

In early April, U. S. District Judge Susan Webber Wright dismissed Paula Jones' suit against President Clinton and saying that Jones' claims of sexual harassment "fall far short" of being worthy of trial. On April 16, Jones announced that she would appeal the decision and said, "I believe the grounds for possible appeal are very strong. I have not come this far to see the law let men who have done such things dodge their responsibility. They should not be able to abuse their positions of power at the expense of female employees."

Despite the scandal and notoriety surrounding the case, a reading of Judge Wright's opinions serves to shed light on the legal aspects of this case and of other sexual harassment cases. In her opinion, Judge Wright said:

The court finds plaintiff's attempt to restate her sexual assault claim in the guise of an equal-protection claim to be no more meritorious now than when it was raised in the context of a due-process claim. Although the governor's alleged conduct, if true, may certainly be characterized as boorish and offensive, even a most charitable reading of the record in this case fails to reveal a basis for a claim of criminal sexual assault as there is no alleged conduct that could be characterized as "forcible compulsion" or "sexual contact" for purposes of establishing a claim.

Plaintiff acknowledges that no one, including Governor Clinton, ever told her that if she refused to submit to his alleged advances it would have a negative effect on her job, that she had to submit to his alleged advances in order to receive job benefits, or that the governor would use his relationship with AIDC (Arkansas Industrial Development Commission) Director Dave Harrington to penalize her in her job.

The governor's alleged statements do not in any way constitute a clear threat that clearly conditions concrete job benefits or detriments on compliance with sexual demands. The court has carefully reviewed the record in this case and finds nothing in plaintiff's employment records, her own testimony or the testimony of her supervisors showing that plaintiff's reaction to Governor Clinton's alleged advances affected tangible aspects of her compensation, terms, conditions or privileges of employment.

Plaintiff's claim that she was discouraged from applying for more attractive jobs and seeking reclassification at a higher pay grade within the AIDC does not demonstrate any "tangible" job detriment as she has not identified a single specific job which she desired or applied for at AIDC but which she had been discouraged from seeking. It is plaintiff's burden to come forward with "specific facts" showing that there is a genuine issue for trial...and the court finds that her testimony on this point, being of a most general and non-specific nature (and in some cases contradictory to the record), simply does not suffice to create a genuine issue of fact regarding any tangible job detriment as a result of her having allegedly been discouraged from seeking more attractive jobs and reclassification.

Although it is not clear why plaintiff failed to receive flowers on Secretary's Day in 1992, such an omission does not give rise to a federal cause of action in the absence of evidence of some more tangible change in duties or working conditions that constitute a material employment disadvantage.

The court finds that a showing of a tangible job detriment or adverse employment action is an essential element of plaintiff's Section 1983 quid pro quo sexual harassment claim and that plaintiff has not demonstrated any tangible job detriment or adverse employment action for her refusal to submit to the governor's alleged advances. The president is therefore entitled to summary judgment on plaintiff's claim of quid pro quo sexual harassment.

The president essentially argues that aside from the alleged incident at the Excelsior Hotel, plaintiff alleges only two other contacts with him, alleges only a few additional contacts with Ferguson, and contains conclusory claims that plaintiff['s supervisors were rude. He argues that taken individually or as a whole, these contacts do not in any way constitute the kind of pervasive, intimidating, abusive conduct that courts require to establish a hostile work environment claim. The court agrees.

Plaintiff received every merit increase and cost-of-living allowance for which she was eligible during her nearly two-year tenure with the AIDC, her job was upgraded from Grade 9 to Grade 11 (thereby increasing her salary), she consistently received satisfactory job evaluations and her job responsibilities upon her return from maternity leave were not significantly different from prior to her taking leave and did not cause her any materially significant disadvantage. These facts are clearly established by the record and dispel the notion that she was subjected to a hostile work environment. The president argues...that plaintiff has failed to identify the kind of clear-cut proof that Arkansas courts require for a claim of outrage and that he is therefore entitled to summary judgment. The court agrees.

In sum, plaintiff's allegations fall far short of the rigorous standards for establishing a claim of outrage under Arkansas law and the court therefore grants the president's motion for summary judgment.

Legal experts agreed with the judges' finding that the Jones case raised "no genuine issues for trial, and many said the case was weak from the start. "She wasn't able to show any negative job consequences. There was never any showing that the environment of her job was hostile to her because of her sex," according to Cynthia Bowman, a law professor at Northwestern University.

San Francisco sexual harassment lawyer Philip Kay said "She had a very, very weak case. This is not a case I would have every brought. Kay is the attorney who won a $3.7 million damage award in 1994 of a former secretary at a law firm who claimed she was sexually harassed.

New York lawyer Gregory Joseph, who chairs the American Bar Association's litigation section, said it was not safe to assume that Jones' appeal would be rejected. A successful appeal must show that Judge Wright made a legal error in her reasoning, rather that merits of Jones' allegations. Washington University law professor Jane Aiken said Jones' case "has been on shaky legal ground from the very beginning" because it was based on a single incident and did not demonstrate how the alleged incident affected her job.

"If you're looking at this on legal grounds, the [dismissal of the case] is not a surprising outcome," but that on political grounds, the decision to dismiss was "fairly bold" because it would have been easy to let at least part of the case to go to trial, according to Aiken.

Marcia Greenberger of the National Women's Law Center said that sexual harassment cases are "not easy cases to prove. There has to be enough of a harassing act to rise to the level of actual discrimination, and that means affecting the conditions of the job in a tangible way. We don't have a history in this country of sexual harassment cases based on one-time events prevailing in court."


THE WEBB REPORT - March 1998

Supreme Court Rules on Same-Sex Sexual Harassment

The U.S. Supreme Court, in its fourth case involving sexual harassment, ruled that on the job sexual harassment can be illegal even when the offender and the victim are the same sex. The court ruled that same-sex harassment can violate federal anti-discrimination law and voted unanimously to revive a Louisiana lawsuit which has been watched closely by the nation's employer's and gay-rights groups.

The court's decision provided important new guidelines for resolving sexual harassment claims, but left some questions unanswered. Judge Antonin Scalia wrote for the court that "Common sense and an appropriate sensitivity to social content will enable courts and juries to distinguish" between wheat is legal and illegal.

Ann Reesman, a lawyer for the Equal Employment Advisory Council, an employers' group, said "We're very pleased with the commonsense standard the court adopted. This adds some clarity."

Elizabeth Birch of the Human Rights Campaign said "Civil rights law will no longer unfairly exclude same-sex sexual harassment, and this fact will benefit all American workers," addressing the concerns of gay rights groups.

The ruling will allow victims of homosexual harassment to get into federal court even though Congress never said bias based on sexual orientation is illegal.

The word "harassment" does not appear in the text of Title VII of the Civil Rights Act of 1964, the Supreme Court ruled in 1986 that sexual harassment constitutes discrimination if it creates a hostile environment in the workplace. In following rulings, the justices said a hostile environment can come about not only by overtly sexual behavior but also by "discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment."

In this latest case, Justice Scalia's seven-page opinion read "We see no justification for a categorical rule excluding same-sex harassment claims from the coverage of Title VII." But at the same time, he warned lower courts about mistaking "ordinary socializing in the workplace--such as male on male horseplay or intersexual flirtation--for discriminatory conditions of employment."

Scalia said all circumstances must be considered and gave the example of a football coach swatting the butt of a playing who's going out onto the field. While this would not be illegal, Scalia said, it is not necessarily the same thing as a coach swats the buttocks of his secretary, male or female.

"Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at discrimination because of sex. The critical whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed, " Scalia said. In the Louisiana case, a federal appeals court had thrown out the suit of Joseph Oncale and ruled that the federal law never applied to same-sex harassment. Oncale's suit came from his sexual harassment claim of alleged conduct during four months in 1991 when he worked as a roustabout assigned to a Gulf of Mexico oil rig with Sundowner Offshore Services.

Oncale's suit is against Sundowner and three men and claims that he was sexually assaulted, battered, touched and threatened with rape by his direct supervisor, a second supervisor and a co-worker. Oncale, who now lives in Baton Rouge, said he twice reported the harassment to his employer's highest ranking representative on the job site, but that no action was taken. He said he quit because he feared the harassment would result in rape. All three of the named men present their conduct as horseplay or hazing.

The Supreme Court's ruling simply allows Oncale to take his lawsuit to a jury--it does not ensure his ultimate victory. "I was pleased. I was shocked. I'm looking forward to going to trial," Oncale said. "This is not just for me. No one in any workplace should be harassed," he said.

Justice Clarence Thomas wrote a one-paragraph statement in which he said he joined the court ruling because it made clear there must be proof of "discrimination because of sex." Oncale v. Sundowner Offshore Services


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