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TECHWORKPLACE
by Jeffrey L. Berger, Esq.
Jeffrey L. Berger
specializes in management-side employment and business law, and related litigation in
Washington, D.C., and nationally. Questions and comments on the TECHWORKPLACE are
encouraged. Other articles are available at www.bergerlaborlaw.com.
LOOKING
FOR LOVE IN ALL THE WRONG (WORK) PLACES: NEW HARASSMENT RULINGS BITTERSWEET FOR BUSINESS
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In the high-tech workplace thriller Disclosure, a
computer manufacturing director (Michael Douglas) is seduced by his new boss (Demi Moore),
without their employer's knowledge. Douglas hires a lawyer and the company pays him big
dollars in settlement. Under the Supreme Court's new rulings on sexual harassment the
outcome for the company might have been different, especially if it had in place proactive
policies against sexual harassment.
In Faragher v. Boca Raton and Burlington Industries v.
Ellerth, the Court affirmed that an employee who rejects a boss's advances can sue
their employer for sexual harassment, even if he or she suffers no job setbacks.
Furthermore, the Court held that an employer is inherently liable for all workplace
harassment, even if management had no knowledge of the offensive conduct. On the positive
side, the decisions create a defense for an employer if it can show that a) it exercised
reasonable care to prevent and correct promptly any sexually harassing behavior, and b)
the aggrieved employee unreasonably failed to take advantage of any protective or
corrective opportunities provided by the employer. This defense is not available,
and the employer is strictly liable, where the supervisor's actions culminate in an
employment loss, such as discharge or demotion, for the employee. Thus, with a
double-edged sword, the Court expands management's responsibility for harassment, but
creates a defense for employers who are proactive. This presents employers with an
opportunity and an imperative to reduce claims and liability through policies, employee
training, and active management.
In most technology companies, employees put in long hours. Work
is a logical place to meet people. Inevitably, a dinner invitation is misconstrued or an
office romance sours. While the Court's rulings do not give guidance on what is an
adequate antiharassment effort, their practical effect is clear. Prudent employers should
provide written antiharassment policies and training for all employees, establish an
effective complaint procedure, and investigate and resolve all harassment complaints. Some
employers use polices prohibiting intimate relations between supervisors and subordinates;
a few have gone so far as to provide employee dating agreements designed to preclude
liability if things do not work out.
An effective sexual harassment effort must go beyond boilerplate
prohibition, and make it easy for employees to raise complaints. A crucial test is the
extent of employee awareness and management support. A policy provides little protection
if employees and supervisors are not aware of their rights and responsibilities in
preventing and exposing misconduct. The most critical element for defending a harassment
claim is the company's response. Employers have a responsibility to, and risk liability
from, both parties - the alleged harasser and victim. Many companies simply fire the
alleged harasser, risking huge damages of the type awarded against Miller Brewing Co.
after firing an executive for discussing a racy Seinfeld episode.
Given these developments and the explosion of harassment claims,
prudent employers must protect their business by promptly up-dating their employee
handbooks, management guides, and personnel management systems. The Supreme Court has made
it clear that employers who fail to heed the antiharassment call do so at the peril of
their bottom line.
© 1998 Jeffrey Berger
REPRINTED FROM:
TECHGAZETTE - August 1998, Vol. 1, No. 8
The Berger Law Firm, P.C. 1825 Eye St. N.W., Suite 400, Washington, D.C. 20006.
Phone: (202) 861-1361 Fax: (202) 861-1362
Legal advice is case specific and is not intended to be provided by this article. The
Berger Law Firm, P.C. may not be held responsible for any consequences that may arise in
connection with the use of or reliance on the information provided.
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