Employers Can Protect Selves From Liability : Harassment: Definitions remain murky, but written policies can limit a firm’s potential responsibility, authorities say.
Irvine attorney Cisca Stellhorn, who is defending an employer against charges of sexual harassment, watched the Senate hearings on Supreme Court nominee Clarence Thomas with much interest.
Fortunately for her client, Thomas was confirmed in spite of Anita Faye Hill’s testimony.
“The fact that (Thomas) was confirmed is going to hurt women making allegations,” said Stellhorn, who has represented both sides in sexual harassment cases. “(Hill) had some pretty substantial allegations--although there were inconsistencies--and they confirmed him anyway. From an employer’s standpoint, that is probably good.”
The Senate’s confirmation of Thomas set no legal precedent, but it did fix a perception in people’s minds.
However, because they were mired in politics, the hearings did little to clear up the definition of sexual harassment, Stellhorn said. That lingering murkiness, along with increased public awareness, means that employers still have their work cut out in protecting themselves from liability.
Insurance coverage for sexual harassment cases is expensive, and attorneys’ fees can escalate to $20,000 before the case even gets to court--a cost the company will not recover, according to Stellhorn. She said she has heard of awards to victims of up to $60,000.
An employer’s potential liability, Stellhorn said, depends on how often an employee was harassed, whether other employees have similar complaints and whether the company has procedures in place for handling harassment claims.
An informal survey this week of 10 of Orange County’s largest employers found that all had written policies on sexual harassment. But some companies take a more assertive approach than others in dealing with the harassment problem.
Several companies distribute sexual harassment policies as part of employee and supervisor handbooks. Bergen Brunswig Corp., the Orange-based distributor of pharmaceuticals and movie videos, goes further than that. When the company hears rumors of a problem, it will seek out the alleged harassers and their victims.
Jerry Gutman, vice president of human resources for Bergen Brunswig, said he almost always hears of problem situations informally before a formal harassment complaint is filed.
“People aren’t forced to come forward, but we want them to know we’re here if they change their minds,” Gutman said. “Often a woman is reluctant to come forward for fear that her career will be at an end or her life will be made miserable.”
Occasionally, someone from his department has discussed the problem with the alleged harasser before a formal complaint is filed.
“It makes business sense, and it also makes sense from an ethical, personal viewpoint,” Gutman said. “When an employee leaves or transfers (because of sexually harassment), everyone loses.”
Those companies interviewed said they do not expect that Anita Hill’s allegations will result in an increase in harassment complaints.
But Rick Hilles, a senior vice president for human resources at Allergan Inc. in Irvine, said he thinks that victims may now be more willing to confront the harassers directly and immediately.
“The hearings raised awareness, and more women may know now about their rights to complain,” he said. “I hope one of the things that came out of the hearings is the importance of timeliness.”
The statute of limitations on sexual harassment complaints is generally one year, Stellhorn said, but can be extended if another claim is involved, such as a workers’ compensation claim.
Perhaps because it is hard to define, written policies tend to describe sexual harassment in vague terms or not at all. An exception is the employees’ handbook at Carl Karcher Enterprises Inc. in Anaheim, which states that company policy prohibits unwelcome “sex-oriented verbal ‘kidding,’ ‘teasing’ or ‘jokes’; subtle pressure for sexual activity; physical contact such as patting, pinching or brushing against another’s body, or demand for sexual favors.”
Written policies generally give employees a choice about whom to contact with a complaint--usually a supervisor or someone in the human resources department. Some policies urge employees to first confront the harasser, and if that doesn’t work, to make a formal complaint shortly after any problem has begun. The Karcher policy urges employees to speak to a supervisor within five days of any incident. Policies generally promise confidential investigations of problems.
Stellhorn recommends that even small companies protect themselves by establishing a written policy on sexual harassment. And employers should keep their eyes and ears open.
“If you feel somebody’s language is inappropriate, I think you have to bring them in, call them on the carpet,” she said. “Tell them, ‘As long as you work for me, these are the criteria.’ ”
Ways to Discourage Sexual Harassment
Provide periodic training for all employees, specifying the types of behavior the company considers unacceptable.
Encourage employees to speak out when they feel somebody’s language or actions are inappropriate.
Treat every complaint seriously. Don’t brush aside a complaint because the accused doesn’t seem like the type of person who would do such a thing.
Make sure supervisors are aware that the company won’t tolerate sexual harassment.
Have a written policy on sexual harassment and a formal procedure for handling complaints.
Give employees a choice of people to whom to report harassment problems.
Sources: Cisca Stellhorn, attorney; Jerry Gutman, vice president of human resources, Bergen Brunswig; and Mark Krouse, director of human resources, Fluor Daniel.
