 | John Gibson
is a senior partner in the Wichita law firm of Gilliand & Hayes. He has been practicing law for nearly 30 years. In addition to healthcare law his practice includes wills, trusts, estate planning, probate and general representation of individuals and small business. Contact information: Phone:
316-264-7321; Fax: 316-264-8614; and e-mail: jgibson@boyerds.com |
Legal
2003-08-01 11:22:00
Avoiding sexual harassment in the workplace
ANSWER: In recent years, sexual harassment has received greater media attention, reaching all the way to the White House. This illustrates the answer to your first question: since my firm is small, is it subject to sexual harassment laws? The answer is that all employers, even the President of the United States, are subject to sexual harassment laws. Employees receive equal protection, regardless of the size of the company for whom they work. Sometimes companies face sexual harassment charges directly, and other times they are accused of sexual harassment because of a worker's actions. This brings up your next question: can an employer be held liable for an employee's sexual harassment conduct? The answer is, it depends. So what does it depend on? The key is company awareness, which relates to your third question: what if I don't know it's happening? If the sexual harassment comes from an agent such as an owner, supervisor, or manager, the company will be strictly liable, even if the company was not aware of the harassment. On the other hand, if the sexual harassment came from a non-management worker, the company will not be liable if it had no reason to know of the harassment. For example, if the harassment took place when no other workers were around, and the victim did not tell anyone about it. However, if the company knew or should have known of the harassment, it will be liable unless it takes immediate and appropriate action to eliminate the problem. So now that you know when your company will be liable, how can you answer your last question: what kind of activity constitutes sexual harassment? The name itself can be misleading, because sexual harassment need not be sexual, nor intended as harassment. So if a supervisor told his secretary, "You're a woman, what do you know?" he would be committing sexual harassment, even though it is not sexual. In the same way, if a male coworker complimented a female coworker by saying, "You look sexy today" he would also be committing sexual harassment even though he did not intend to harass her. When lawyers say "sexual harassment," they usually mean "gender-based discrimination." This happens anytime a worker officially "notices" the gender of a coworker. This can happen in a number of ways, from asking for sexual favors in return for some work benefit, to off-color jokes at the water cooler. In all of these situations, the victim is placed in an uncomfortable situation because the other person is "noticing" the victim's gender in an inappropriate way, and it can be construed as sexual harassment. As an employer you should be aware of the rules relating to sexual harassment, and should educate your employees about what will not be tolerated. Also, if you learn of any activity that may constitute sexual harassment by any employee, you should intervene.
