Abacle Sexual Harassment The Employers Role in Prevention Materials

SEXUAL HARASSMENT:
THE EMPLOYER’S ROLE IN

PREVENTION
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This publication accompanies the audio program entitled “Sexual Harassment: The Employer’s Role in
Prevention” broadcast on January 31, 2018 (event code: CE1801ERP).
TABLE OF CONTENTS
1. Presentation Slides
2. The Employer’s Role in Prevention

Mark I. Schickman
1
Sexual Harassment:
The Employer’s Role in Prevention
January 31, 2018 | 1:00 PM Eastern
Sponsored by the ABA Center for Professional Development
Mark I. Schickman, Esq.

Cathleen S. Yonahara, Esq.
Freeland Cooper & Foreman, LLP
150 Spear Street, Suite 1800
San Francisco, CA 94105
(415) 541-0200
schickman@freelandlaw.com;
yonahara@freelandlaw.com
www.americanbar.org | www.abacle.org
Why We Need Harassment Policies
Andy Dick :
“...I don’t grope anybody any more…I don’t lick

anybody any more…Of course I'm going to
proposition people. I'm single, depressed, lonely
and trying to get a date. They can just say no, and
they probably did and then I was done…I don’t
know the difference between sexual harassment
and asking people for a date."
The End Game
• Adopt and maintain comprehensive anti-

harassment policy with established procedures.
• Ensure anti-harassment policy is communicated
to employees, in variety of forms and methods.
• Conduct effective training.
• Create a welcoming, not chilling, atmosphere.
• Offer multi-faceted reporting procedures for
employee to report harassment.
• Provide appropriate remedies.
• Be alert for and remedy any retaliation, and take
steps to ensure this does not occur.
Sexual Harassment Defined
• 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 Harassment
• When a person in a position of authority gives or

withholds job benefits (such as getting or
retaining a job, or receiving a favorable
performance review or promotion) based on
whether the employee acquiesces to unwelcome
sexual advances or conduct.
Quid Pro Quo Harassment
• The essence of the quid pro quo theory of

sexual harassment is that the harasser relies on
his or her apparent or actual authority to extort
sexual consideration from an employee.
• Alleged Harvey Weinstein conduct classic quid-

pro-quo harassment AND a failure of Miramax’s
duty to remedy known harassment.
Claims by Non Participants
• “Although an isolated instance of favoritism on the part
of a supervisor toward a female employee with whom
the supervisor is conducting a consensual sexual affair
ordinarily would not constitute sexual harassment,
when such sexual favoritism in a workplace is
sufficiently widespread it may create an actionable
hostile work environment in which the demeaning
message is conveyed to female employees that they
are viewed by management as ‘sexual playthings’ or
that the way required for women to get ahead in the
workplace is to engage in sexual conduct with their
supervisors or the management.”
Miller v. Dept. of Corrections (2005) 36 Cal.4th 446.
Hostile Environment Harassment
• Unwelcome conduct.
• Because of sex.
• Sufficiently severe or pervasive to alter the
conditions of the individual’s employment.
• Purpose or effect of creating a hostile, offensive,
or intimidating work environment.
Harassment “Based on Sex”
• Includes unwanted sexual attention or sexual
coercion, such as pressure for sexual favors,
touching or caressing, or sexually teasing remarks.
• Also includes non-sexual conduct based on sex.
Often termed “gender harassment,” this is hostile
behavior devoid of sexual interest. This includes
gender-based epithets, sexist comments (such as
telling anti-female jokes), and remarks that are
unrelated to sex but still motivated by the targeted
employee’s gender. It aims to insult and reject
women or men because of their sex, rather than to
pull them into a sexual relationship.
How to Establish Sexual Harassment
The Supreme Court noted three evidentiary, non-
exclusive routes for establishing causation in a
sexual harassment claim:
• Proposals of sexual activity;
• General hostility toward complainant’s sex;
• Comparative evidence showing how the
harasser treated members of both sexes.
(Oncale v. Sundowner Offshore Services, Inc.
(1998) 523 US 75.)
Same Sex Harassment
• “(N)othing 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.” (Oncale v. Sundowner Offshore Services, Inc.
(1998) 523 US 75.)
– Male employee working on offshore oil platform
alleged his male supervisors and coworkers
subjected him to humiliating sexual actions,
including physical assault and threat of rape.
Gender Stereotyping
• Gender stereotyping is a form of sex discrimination.
• “As for the legal relevance of sex stereotyping, we are
beyond the day when an employer could evaluate
employees by assuming or insisting that they matched
the stereotype associated with their group, for “‘[i]n
forbidding employers to discriminate against
individuals because of their sex, Congress intended to
strike at the entire spectrum of disparate treatment of
men and women resulting from sex stereotypes.’”
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Sexual Orientation Harassment
• Title VII does not expressly prohibit discrimination
based on sexual orientation.
• The Seventh Circuit and the EEOC have held that
discrimination based on an employee’s sexual
orientation is discrimination because of sex and is
prohibited under Title VII. (Hively v. Ivy Tech
Community College of Indiana (7th Cir. 2017) 853
F.3d 339.)
• Many state and local laws prohibit discrimination
based on sexual orientation.
Sexual Orientation Harassment
• According to EEOC, sexual harassment also includes:
• Harassment because an individual is lesbian, gay,
bisexual, or heterosexual.
• Harassment based on gender identity, transgender
status or intent to transition.
• Harassing an employee because of a gender transition,
such as by intentionally and persistently failing to use
the name and gender pronoun that correspond to the
gender identity with which the employee identifies, and
which the employee has communicated to management
and employees.
• Denying an employee equal access to a common
restroom corresponding to the employee's gender
identity.
Hostile Environment Under Title VII
• May include, but is not limited to, offensive jokes, slurs,
epithets or name calling, physical assaults or threats,
intimidation, ridicule or mockery, insults or put-downs,
offensive objects or pictures, and interference with work
performance.
• The harasser can be the victim's supervisor, a
supervisor in another area, an agent of the employer, a
co-worker, or a non-employee.
• The victim does not have to be the person harassed, but
can be anyone affected by the offensive conduct.
• Unlawful harassment may occur without economic injury
to, or discharge of, the victim.
Evaluating Hostile Environment Harassment
• To determine if there is a hostile work environment,

look at all the circumstances, including:
o frequency of the discriminatory conduct;
o its severity;
o whether it is physically threatening or
humiliating, or a mere offensive utterance;
o whether it unreasonably interferes with an
employee’s work performance.
(Harris v. Forklift Systems, Inc. (1993) 510 US 17.)
ABA model jury instruction on hostile work environment
claims also includes additional factors:
• the total physical environment of plaintiff’s work area;
• the degree and type of obscenity that filled the
environment of the workplace, both before and after
plaintiff arrived;
• plaintiff’s reasonable expectations upon entering the
environment;
• the nature of the unwelcome sexual acts or words;
• the context in which the sexual harassment
occurred;
• whether the conduct was unwelcome;
• the effect on plaintiff’s psychological well-being.
EEOC looks at totality of the circumstances:

• The nature of the conduct.
• The context in which the alleged incidents
occurred.
Whether harassment exists, is severe or pervasive is

a case-by-case question based on “the totality of the
circumstances”
Must Meet Dual Standard
Subjective and Objective
• Whether conduct is actionable under Title VII as

“hostile environment” harassment requires both:
– an environment that a reasonable person would
find hostile or abusive (objective test); and
– the victim’s subjective perception that
environment is abusive. (subjective test).
(Harris v. Forklift Systems, Inc. (1993) 510 US 17.)
Damages Under Title VII
• Backpay
• Frontpay
• Emotional distress damages
• Punitive damages
• Injunctive relief
• Attorneys’ fees and costs
• Interest
Employer Liability Under Title VII
• Supervisor Conduct: Employer is automatically liable
for harassment by a supervisor that results in a negative
employment action such as termination, failure to
promote or hire, and loss of wages.
• Co-Worker or Non-Employee Conduct: Employer is
liable for harassment by non-supervisory employees or
non-employees over whom it has control (e.g.,
independent contractors or customers on the premises),
if it knew, or should have known, about the harassment
and failed to take took immediate and appropriate
corrective action.
In some states, employees may be personally liable for

harassment, as well!
Employer’s Defense to Supervisor
Harassment Under Title VII
• If the supervisor took a “tangible employment
action” as part of the hostile work environment,
employer is automatically liable and does not
have a defense.
• Tangible employment action = significant
change in employment status (hiring, firing,
failing to promote, reassignment with
significantly different responsibilities, significant
change in benefits). Usually results in direct
economic harm.
Employer’s Defense to Supervisor
Harassment Under Title VII
If the supervisor did not take a tangible employment

action, the employer may avoid liability if:
(1) Employer exercised reasonable care to prevent

and correct promptly any harassing behavior,
and
(2) Employee unreasonably failed to take
advantage of any preventative or corrective
opportunities provided by the employer or to
avoid the harm otherwise.
Sexual Harassment Prevalent
• 25% of women surveyed reported experiencing

“sexual harassment” at work.
specific sexually-based behaviors, e.g.,
unwanted sexual attention or sexual coercion.
gender harassment devoid of sexual interest.
(June 2016 EEOC Select Taskforce on the Study

of Harassment in the Workplace.)
Workplace Harassment
Often Goes Unreported
• Targets of harassment often do not complain or confront
the harasser:
– 90% of individuals who have experienced workplace
harassment never file formal complaint.
– 70% of individuals who have experienced workplace
harassment never talk to supervisor, manager or
union rep.
– Fear disbelief of claim, inaction, retaliation, ostracism,
damage to career and reputation.
– 2003 study showed 75% of employees faced
retaliation for speaking out.
(June 2016 EEOC Select Taskforce on the Study of
Harassment in the Workplace.)
Frequent Employee
Responses to Harassment
• Avoid the harasser.
• Deny or downplay the gravity of the situation.
• Attempt to ignore, forget or endure the behavior.
Empower Employees To
Resolve At Initial Level
• Sometimes employee can stop the behavior by

calmly but firmly objecting and asking that it stop
• Advise harasser that conduct is unwelcome.
• Obtain commitment to stop the behavior.
• Informally discuss with supervisor.
• BUT must provide a known, nonretaliatory,
welcoming complaint process available if
employees don’t/won’t resolve at low level
• Employer training of employees a key step.
Test: Known or Should Have Known
• On Notice: An employer has notice of

harassment if it is aware of it or if the employer
reasonably should know about the harassment.
• Corrective Action: Once an employer has notice

of potential harassment, it is required to take
reasonable corrective action to prevent the
conduct from continuing.
Best Investigative Practices
Harassment, discrimination and retaliation policy
should:
(1) Be in writing;
(2) List all currently covered protected categories;
(3) Prohibit coworkers, supervisors, managers and
third parties from prohibited conduct;
(4) Warn that if misconduct is found, appropriate
remedial measures will be taken;
(5) Forbid retaliation for lodging a complaint or
participating in any workplace investigation.
Best Investigative Practices (cont’d)
(6) A complaint mechanism that doesn’t require an

employee to complain directly to her immediate
supervisor;
(7) Supervisors instructed to report any complaints of
misconduct to a designated company
representative so company can try to resolve the
claim internally, independently and competently;
(8) Address allegations of misconduct through a fair,
timely, thorough investigation that provides
appropriate due process to all and reaches
reasonable conclusions based on the evidence
collected.
Best Investigative Practices (cont’d)
(9) Complaint process that provides:
– Confidentiality to the extent possible
• However, do not promise complete
confidentiality.
– A timely response.
– Impartial and timely investigations by qualified
personnel.
– Documentation and tracking for reasonable
progress.
– Appropriate remedial actions and resolutions,
and timely closure.
Evaluating the Evidence
• Consider all circumstances surrounding conduct in
question
• Weigh each parties credibility. Some factors to
include:
– Inherent plausibility: Is testimony believable?
– Demeanor: Did individual appear to be telling the
truth based on body language, eye contact, and
general demeanor?
– Bias: Did individual have reason to lie?
– Past Record: Did alleged harasser have history
of similar behavior?
– Corroboration: Is there supporting testimony
from witnesses or documents?
• Make determination of whether alleged harassment
occurred
Resolving Complaint
• Determination communicated to complainant,
alleged harasser and all others directly concerned.
• If evidence is inconclusive, consider separating
complainant from alleged harasser
– Danger of retaliation claims if employer moves
complainant to less desirable location or position.
• Employer may require alleged harasser to take
additional training course on sexual harassment.
• If employer determines sexual harassment has
occurred, employer should take immediate and
appropriate corrective action designed to stop
harassment and prevent future harassment.
Corrective Action
• Must be effective to prevent recurrence.

• Should be prompt.
• Should be based on facts derived.
• Wide range of remedies.
• Serious, pervasive or repeated offenses require
greater discipline.
Examples of Corrective Action
• Oral or written warning or reprimand;
• Training or counseling of harasser;
• Transfer or reassignment;
• Demotion;
• Suspension;
• Loss of Bonus;
• Monitoring harasser to ensure that harassment
stops; and
• Termination.
Examples of Corrective Action
• Apology by harasser;
• Monitoring treatment of employee to ensure that
he or she is not subject to retaliation; and
• Restoration of lost jobs, bonuses or wages .
Findings About Effective Training
• Effective training can reduce workplace harassment.

• Part of a holistic culture that starts at the top.
• Training most effective when tailored to specific
workforce and workplace.
• Proper training of all managers and first-line
supervisors for preventing/stopping harassment.
• Workforce actively reassured won’t be tolerated and
should be reported.
• Workplace “civility training” focuses on promoting
respect and civility.
The End Game
• Comprehensive Anti-Harassment Policies.
• Effective Communication of the Policies.
• Management and Supervisory Training.
• Non-management Employee Training.
• Effective Complaint Procedures.
• Conduct Prompt and Thorough Investigation.
• Take Any Necessary Steps To Protect Alleged
Victim While Investigation Pending and Then...
• Take Immediate and Appropriate Corrective
Action Designed to Prevent Recurrence.
2
12/18/2017 Sexual Harassment
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General Practice, Solo & Small Firm DivisionTechnology & Practice Guide
Sexual Harassment
The employer's role in prevention
BY MARK I. SCHICKMAN
Mark I. Schickman is partner in the San Francisco office of Fox and Grove, Chartered, a labor and employment
law firm based in Chicago. He is chair of the General Practice Section's Labor and Employment Law
Committee and president-elect of the Bar Association of San Francisco.
The elimination of sexual harassment in the workforce is extremely important for every employer. There is a
financial imperative to eliminate improper conduct as well as a moral one, as such conduct can result in
extensive monetary liability imposed by juries that determine sexual harassment has occurred.
It is difficult to eliminate sexual harassment because attempting to regulate romance runs contrary to some
strong human urges. Ninth Circuit Court of Appeals Justice Alex Kozinski ("Gender Bias," San Francisco
Recorder, May 27, 1992) notes that while the "bright line 'never mix business and sexual relationships'...is easy
to remember, it is impossible to enforce, as men and women are drawn to each other in the workplace, as
elsewhere. Even were it enforceable, do we really want to live in a society where normal flirtations, courtships
and matings are routinely banned from the office and the factory?" While this question may get one answer from
poets and philosophers, it will get a different one from lawyers trying to limit their client's liability.
But before you and your client can begin to consider the interplay between the rights of free people to associate
and the pervasive patterns of state and federal antiharassment laws and regulations, it is important to know what
sexual harassment is, and how you and your client can recognize it.
Identifying Sexual Harassmant A series of Supreme Court decisions from Meritor Savings Bank v. Vinson (477
U.S. 57 (1986)) through Harris v. Forklift Systems, Inc. (510 U.S. __, 126 L.Ed 2d 295, 114 S.Ct. 367 (1993))
has defined what sexual harassment means. Those cases, and the interpretative regulations of the Equal
Employment Opportunity Commission (EEOC) (generally found at 29 C.F.R. § 1604, et seq.), define two
distinct types of sexual harassment.
The more obvious is "quid pro quo" sexual harassment, which occurs when a beneficial condition of
employment is premised upon an employee's submission to sexual advances. Frequently, that claim is also raised
when an employee rejects a sexual advance, and claims a connection between that rejection and a subsequent
adverse job action. That action might be a denial of a raise or promotion, a termination, or a "constructive
discharge" where an employee claims that the retaliation made his or her job conditions intolerable.
https://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/w96shi.html 1/5
Far more pervasive and more evident in the courts is harassment based upon a "hostile work environment."
According to the case law and the EEOC's interpretative regulations, a "hostile environment" is one that is so
pervasive that it materially alters the terms and conditions of employment (29 C.F.R. § 1604.11(a)).
There is no clear definition of a "hostile work environment." It can occur where jokes, suggestive remarks,
physical interference with movement (such as blocking one's path), pictures, cartoons, or sexually derogatory
comments alter the circumstances of the workplace. Generally, repeated conduct is required to prove a hostile
work environment, and a "stray comment" has been held not to alter the working conditions sufficiently to create
a cause of action. However, some comments or conduct can be so severe that a single incident can create
liability.
It does not matter whether the alleged harasser intended the conduct to be harassing or complimentary. Rather,
the conduct is evaluated from the perspective of the victim. Thus, in Ellison v. Brady (924 F.2d 872 (9th Cir.
1991)), the trial court found that there was no harassment, characterizing the defendant employer as an inept
Don Juan rather than a wrongdoer. The Ninth Circuit rejected the "reasonable person" standard utilized by the
trial court since it "tends to be male biased and systematically ignores the experiences of women." Rather, the
circuit court found that if a "reasonable woman" would find the conduct severe and pervasive enough to alter the
terms and conditions of employment such that an offensive environment was created, then sexual harassment
can be found.
The practical advice for employers evaluating potentially harassing conduct is to be as conservative as possible.
If conduct might be construed as harassing, it has no place in the workplace. If an employee (and especially a
manager or a supervisor) is not sure whether or not conduct will be unwelcome, the best advice is to avoid such
conduct.
Creating a Harassment-Free Workplace

An employer's obligations with regard to sexual harassment arise before any act of sexual harassment occurs.
The EEOC requires that employers take reasonable steps to prevent harassment before it occurs. Most states
have discrimination prohibition enforcement agencies, which generally impose similar requirements. Many
states (including California) require an employer to post a sexual harassment prevention notice advising
employees of their right to a harassment-free workplace; this is different from, and over and above, an
employer's obligation under Title VII to post a general discrimination prevention poster.
An important component of harassment prevention is the creation and dissemination of a sexual harassment
prohibition policy and reporting procedure. This policy is critical because under federal case law, an employer
fulfills its obligation if it takes all reasonable steps to prevent harassment before it occurs, and to take effective
steps to remedy harassment after it takes place. If an employer demonstrates those attempts at prevention and
remediation, it might not be found liable for the act of harassment itself. Other states, such as California, impose
a "strict liability" test, where employers are liable for the conduct of their supervisors and managers regardless of
their best efforts to prevent and to remedy harassment.
Among the elements of a proper sexual harassment policy are the following:
A statement of policy. An appropriately high decision maker, such as a company president or human
resources department vice president, should set forth a firm policy banning sexual harassment, and
identifying himself or herself as the person ultimately responsible for preventing harassment at the
company.
Definition of sexual harassment. A broad definition should be set forth that includes illegal sexual
discrimination; unwelcome advances; requests for sexual favors; and any other verbal, visual, or physical
conduct of a sexual nature. It should make clear that submission to any of that conduct cannot be made,
explicitly or implicitly, a term or condition of employment, or used as a basis for any employment
decisions. It must ban all behavior that has the purpose or effect of unreasonably interfering with an
individual's work performance, or creating an intimidating, hostile, or offensive work environment. It

should include examples of sexual harassment, while making very clear that the list of examples is not
intended to be all-inclusive.
Non-retaliation policy. It is critical that the policy, and company practice, protect complainants and
witnesses from any retaliation from any source as a result of initiating or supporting a sexual harassment
allegation.
Specific procedures for prevention. The policy should make sexual harassment a disciplinary offense, and
reserve the right to terminate an employee who is found to take part in that conduct. For employers who
can do so, it should establish training programs in sexual harassment prevention, and urge employees to
raise and resolve their concerns at an early stage. Where an employer has a history of sexual harassment
that has been the subject of prior litigation, or that is widely known within the company, a training
program is a critically important policy to consider. However, neither a commitment to training, nor any
other written promise, should be put in a sexual harassment policy document unless it will be
accomplished. It is better to have no procedure at all than to establish a procedure and then fail to comply
with it. Therefore, while even the smallest of employers should have a written policy, small employers
should probably delete this training component in most cases.
Establish and enforce a clear and thorough investigation and remediation procedure. Your policy must
actively encourage victims of sexual harassment to report the behavior, and expressly identify several
appropriate individuals authorized to receive the harassment complaint. This will prevent the situation in
which the alleged harasser is the person to whom the complaint would logically be addressed. Your
application of the policy must be uniformly neutral and consistent.
Establish a reporting procedure. The policy should be broadly disseminated to every employee, putting
them on notice of the company's reporting procedure. In fact, because remedying harassment is so
important to the company, the policy should put an affirmative duty on the employee to report any
harassment that they have either suffered or observed.
Timely reporting requirements. In most jurisdictions, there is a time limitation on a formal administrative
charge ranging from six months to a year; an employer will not be able to impose a shorter time period as
a legal prerequisite to filing a harassment complaint. However, the failure to meet a shorter complaint
period (for example, 60 to 90 days) so that a "rapid response" and remediation may occur, and to help to
ensure a harassment-free environment, could be raised as a defense to a claim of a series of harassing
events that the company had no opportunity to remedy because of the late report.
Supervisors should be told to take seriously, and to report, any report of potential harassment, no matter how
"offhand" or informal. In addition, especially when dealing with some relatively more serious acts of
harassment, a company may need to take action whether or not the employee reporting the harassment wants to.
For example, an employee reports that her supervisor propositioned her on an out-of-town business trip, but
concludes "I can take care of the situation myself, and I don't need anybody getting involved on my behalf. I'd
rather let the matter drop." The next employee who might be propositioned by that same supervisor on an out-of-
town trip might not be able to handle the situation herself, and the employer would almost certainly be liable to
that second employee if she proved that the company knew about the supervisor's conduct and did nothing to
stop it.
For the same reason, confidentiality regarding a complaint and its investigation can only be promised "to the
extent possible under the circumstances." While it is important to maintain all reasonable discretion and
confidentiality during an investigation, sometimes it will be impossible. At some point during this process (at
litigation, if not before), the alleged harasser will be able to find out the name of a complainant. A witness to
forcible, physical sexual harassment may "not want to get involved"; but if a factual dispute arises, that witness
might have no choice.
The reporting procedure should impress upon all levels of the organization the importance of reporting
complaints of harassment, and communicating those complaints to the appropriate level of management.
Act upon a report of harassment. The investigation should be designed to obtain a prompt and thorough
collection of the facts, an appropriate responsive action, and an expeditious report to the complainant that
the investigation has been concluded, and, to the full extent appropriate, the action taken. To accomplish
that result, a company should establish a formal investigative process.
The investigative effort is not an easy one. When interviewing the complainant and the alleged harasser, the
questions need to be asked in a way that is not accusatory, overly familiar, or impartially supportive. Especially
at the start of the investigation, questions should be asked in an open-ended manner; more pointed questions
should be saved for the end of the interview or investigation. Make sure that all witnesses are identified as well
as any other similar acts of harassment that allegedly occurred. During the investigation, the complainant's
feelings and conduct should be inquired into. How did she respond to the alleged harassment? What action does
the complainant want the employer to take as a consequence of the harassment? Advise the complainant that you
will commence an investigation rapidly, and provide some idea of when you might get back to the complainant.
Finally, an employer must determine whether any immediate, temporary action must be taken to separate the
harasser from the complainant while the investigation is underway. Because that temporary action frequently
causes operational problems, the solution should be used sparingly. However, in extreme cases it must be
considered.
The alleged harasser must also be given a full opportunity to tell his or her side of the story as part of the
investigation. It is important that no conclusions be reached until the alleged harasser has a chance to tell his or
her story. Like the complainant, the alleged harasser must also be given an opportunity to identify all supporting
witnesses, and asked in an open-ended fashion to provide any information that he or she believes might be
helpful as part of the investigation.
Typically, the alleged harasser will hold some supervisory authority for the employer; where that is the case, he
or she must be told that there can be no retaliation for the sexual harassment complaint, and that any retaliation
will result in termination of employment.
If the investigation finds that sexual harassment has occurred, some level of formal sanctions should be imposed.
The range of sanctions could include a written reprimand, removal of management authority or duties,
suspension, or termination; the proper remedy has to be determined on a case-by-case basis. The sanctions
should be communicated in writing as part of that employee's personnel file. The complainant should be advised
of the remedial action against the harasser, though the specific sanction imposed is generally not disclosed.
If the investigation does not yield proof that the claimed harassment occurred, that fact should be communicated
to both the complainant and alleged harasser. That communication should include a restatement of the company
policy against harassment or retaliation, and assure the complainant that no adverse action will be taken as a
result of the complaint (see "False Accusations" Policies).
Conclusion
The difficulty in differentiating between wholesome human romance and offensive sexual harassment is that it is
always determined in retrospect, through a veil of human emotions, observations, and stereotypes.
Is it sexual harassment to use a company's electronic mail system to ask a subordinate out on a date? Why is it
the company's business if a company executive and a secretary go out on dates over the weekend, and agree to
keep their relationship out of the office? Doesn't it aid the workplace environment if a co-ed group of employees
who all seem to appreciate risque jokes has a pattern of telling those jokes to each other in the office? In support
of the view that the workplace should not prohibit any of that conduct, Justice Kozinski ("Gender Bias," San
Francisco Recorder, May 27, 1992) wrote: "While many frown on romance in the workplace, it is a fact of life.
Indeed, I would suggest that it is an important and enduring reality and that, within bounds of propriety and good
taste, romance in the workplace should be accepted rather than forbidden."
The problem, from the point of view of an admittedly cynical litigator, is that the "bounds of propriety and good
taste" are very difficult for a jury to demarcate two years after the fact. Whether a liaison was a voluntary,
mature choice made by two adults or an abuse of power by a supervisor requesting sexual favors is hard to prove
in retrospect. A claim that an employee was too intimidated to challenge the sexually charged work environment
created by the supervisor is even harder to disprove. Whether a consensual sexual relationship will stay out of
the office won't be known until it is too late.
I recognize the appeal in Justice Kozinski's suggestion; as an employer, I might even make the decision to adopt
it--risks and all. However, as a lawyer advising clients as to how to limit liability in an ever more litigious
employment setting, I don't recommend it.
Society demands two mutually exclusive things from employers. First, the workplace has become a place where
workers bring much of their personal lives, as a central point of their existence. However, the workplace
environment is not permitted to cross an ill-defined line; if crossed, allegations of medical discrimination, age
discrimination, sexual harassment, or other forms of unlawful conduct can be made. Employers must walk a
tightrope between an emotionally rich environment and a legally prohibited one. A proper sexual harassment
policy that is consistently enforced can help maintain that fine distinction.
Sidebar: "False Accusations" Policies

I do not recommend a published and identified procedure for a finding that a complaint is a "false accusation,"
which calls for action against the complainant. Such a procedure can have a chilling effect against the raising of
complaints. More important, it can be argued that an employee failed to report harassment for fear of
disciplinary action under the guise of the "false accusations" procedure. Especially because many claims of
harassment are proven solely by one person's word against another's, such a policy is ill advised.
However, many thoughtful and comprehensive policy statements contain such a procedure. For example, the
ABA Commission on Women in the Profession published a model sexual harassment policy document in June
1992, which suggests the following policy:
The firm recognizes that the question of whether a particular course of conduct constitutes sexual
harassment requires a factual determination. The firm recognizes also that false accusations of
sexual harassment can have serious effects on innocent persons. If an investigation results in a
finding that a person who has accused another of sexual harassment has maliciously or recklessly
made false accusations, the accuser will be subject to appropriate sanctions, including discharge.
--M.S.
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SEXUAL HARASSMENT:

THE EMPLOYER’S ROLE IN

© 2018 American Bar Association. All rights reserved.

2. The Employer’s Role in Prevention

Mark I. Schickman, Esq.

“...I don’t grope anybody any more…I don’t lick

• Adopt and maintain comprehensive anti-

• When a person in a position of authority gives or

• The essence of the quid pro quo theory of

• Alleged Harvey Weinstein conduct classic quid-

• “(N)othing in Title VII necessarily bars a claim of

• To determine if there is a hostile work environment,

(Harris v. Forklift Systems, Inc. (1993) 510 US 17.)

EEOC looks at totality of the circumstances:

Whether harassment exists, is severe or pervasive is

• Whether conduct is actionable under Title VII as

In some states, employees may be personally liable for

If the supervisor did not take a tangible employment

(1) Employer exercised reasonable care to prevent

• 25% of women surveyed reported experiencing

(June 2016 EEOC Select Taskforce on the Study

• Avoid the harasser.

• Deny or downplay the gravity of the situation.

• Attempt to ignore, forget or endure the behavior.

• Sometimes employee can stop the behavior by

• On Notice: An employer has notice of

• Corrective Action: Once an employer has notice

(6) A complaint mechanism that doesn’t require an

• Must be effective to prevent recurrence.

• Effective training can reduce workplace harassment.

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Creating a Harassment-Free Workplace

individual's work performance, or creating an intimidating, hostile, or offensive work environment. It

Sidebar: "False Accusations" Policies

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