Sexual Harassment Can Be Costly

This is the week of holiday parties, and the holiday cheer brings with it questions of legal risks and liabilities. Two quickly come to mind: liability for furnishing alcoholic beverages and sexual harassment.

In the 1970s, a series of California court cases created new law by imposing liability on social hosts who served alcoholic beverages to their guests. If the guest left the party intoxicated and subsequently injured someone in an automobile accident, the host could be sued for his negligence.

Those cases were overturned in a 1978 statute that expressly says, “no social host who furnishes alcoholic beverages to any person shall be held legally accountable for damages suffered by such person or for injury . . . or death of any third person resulting from the consumption of such beverages.”

In the years since, there have been various court cases interpreting the statute, but by and large, it still essentially stands intact, so that legal risk for a party host who serves alcoholic beverages is relatively minimal. The same cannot be said for possible cases of sexual harassment.

In a recent newsletter, the Century City law firm of Goldstein & Kennedy, which specializes in representing management in labor matters, reminded its clients that the perils of sexual harassment loom large during holiday festivities.

“Simple acts such as hugging, close dancing, kissing under the mistletoe, and other forms of affection . . . can be construed as sexual harassment,” the firm warned.

Sexual harassment “is one of the most serious problems that females face in the work force,” says Charles H. Goldstein, the firm’s senior partner and the narrator of a videotape called “How to Prevent Sexual Harassment Lawsuits,” which is sold to businesses for $79.95.

What is sexual harassment? First, it is unwelcome sexual advances or physical or verbal conduct of a sexual nature. Second, the conduct must be tied to an employment decision, such as hiring or promotion, or it must unreasonably interfere with work performance or create a hostile work environment.

Even off-color jokes can constitute legal sexual harassment. If you’re not sure whether it’s a joke that should stay in the locker room, Goldstein has an easy test: Is it a joke you would not be embarrassed to tell in a courtroom to a judge and jury, with your spouse and family sitting in the audience? It it doesn’t pass that test, don’t tell the joke, he says.

If you feel you are a victim of sexual harassment, you should report it to a key company executive, perhaps even in writing, Goldstein advises.

“Don’t ever just give in, in silence. Get to somebody in the organization who will investigate.” If the company is not responsive, then file a complaint with the state Fair Employment and Housing Department, or the federal Equal Employment Opportunity Commission, he adds.

Goldstein advises his clients to have a clear policy that defines sexual harassment, how cases will be investigated and what penalties will be imposed on violators. Complaints should be reported to a neutral person, and both a man and woman should be available. Never take a “boys will be boys attitude” toward sexual harassment, he advises in his videotape.

There is substantial potential legal liability for the organization and the individual who allows or joins in sexual harassment--legal fees, damages for pain and suffering and lost wages, punitive damages, as well as loss of employee productivity and morale. A sexual harasser, not just the employer, can be personally liable for these damages.

These legal risks simply reinforce common sense: Don’t allow the festivities of the holiday to get out of hand.