Steve Sutter
Steve Sutter has prepared a booklet, Sexual Harassment Information, Investigation, and Compliance Guide, which includes the DFEH pamphlet and poster order form, a sample written policy against harassment (English and Spanish), a supervisor's guide to investigating a complaint of sexual harassment, and the EEOC Sexual Harassment Regulations with examples. For ordering information, see Resources.
One of the workplace safety concerns identified by four farm workers participating in a recent AgSafe forum was sexual harassment. The number of sexual harassment cases filed with the California Department of Fair Employment and Housing (DFEH) grew from 1,457 in 1990 to 2,239 in 1992. In Hawaii this year, a nursery was ordered by the state Civil Rights Commission to pay a former employee $99,000: nearly $9,000 in back pay, $80,000 in compensatory damages, and $10,000 in punitive damages for "offensive and unwelcome sexual conduct" by a board member, which "created a hostile, intimidating, and offensive work environment."
There is little doubt that sexual harassment is of importance to both employers and employees in agriculture. Most victims are sexually harassed by persons of the opposite sex who are married and are older than the victim. One nationwide survey found that 76 percent who reported sexual harassment were under age 35 at the time of the incident. California employers are now obligated by law to communicate information about sexual harassment to all employees. Agricultural employers are advised to include rules related to sexual harassment in their performance and conduct standards, and to communicate their policy.
Examples
Sexual harassment may include unwelcome advances by supervisors or co-workers acting within the scope of employment at work, at work-related activities, or after hours. Objectionable conduct includes comments, jokes, and romantic letters, if unwelcome in that the employee does not solicit or incite it and regards it as undesirable or offensive. Derogatory remarks about inferiority, frivolousness, or emotionalism of women may also be considered sexual harassment.
Although touching or remarks may not be intended to harass, those actions are harassment if they have the effect of making the recipient feel uncomfortable, humiliated, embarrassed, or unsafe in the work surroundings. The victim's perceptions count. Sexual harassment laws are not made to protect the rare hypersensitive employee, but courts look at whether the conduct would offend a "reasonable person."
Unwelcome, intentional touching of an employee's intimate body areas is sufficiently offensive in most cases to be considered sexual harassment and to create a hostile environment. More so than verbal remarks or advances, a single unwelcome touching can seriously poison the victim's work situation. If a supervisor sexually touches an employee, government agencies normally find sexual harassment.
A woman may be promoted because she submits to unwelcome requests for sexual favors from a supervisor. Under those circumstances, not only the promotee but also both female and male co-workers can allege sexual harassment for having been denied a fair chance to be promoted. Cases related to consensual sexual relationships between a supervisor and a subordinate who is given preferential treatment, however, have so far failed to persuade courts that such treatment creates a hostile environment for other employees.
Flirtation, innuendo, even vulgar language that is trivial or merely annoying, may not meet the legal definition of a "hostile environment" but can still be prohibited by an employer. Although sexual attraction is often part of employees' social exchange, workplace sexual activity is generally not advised. What is invited today could be unwelcome tomorrow.
Employer's and Supervisor's Responsibilities
It is important for supervisors to avoid behavior that may be sexual harassment, recognize and work to end others' harassment, and react appropriately to persons who disclose harassment. Supervisors can be held personally liable for their own offensive conduct or for tolerating such behavior. Tolerating or committing offensive acts may cost them their house or boat along with their job. Supervisors should receive training on the definition of sexual harassment, its illegality and inappropriateness, and its business cost in lower productivity and morale, stress-related workers' compensation claims, damaging publicity, and possible litigation.
A complaint policy and investigation procedure that employees trust are essential to effective management of harassment claims. The policy should be announced initially upon its creation and reviewed periodically in small group employee meetings. Because most victims are female and may be reluctant to report incidents to a male, at least one female should be among those designated to take complaints.
If sexual harassment allegations are found to be true, corrective action should be taken to end the harassment, punish the offender, and prevent future occurrences. The more serious the harassment, the more severe should be the disciplinary response. Consistency in disciplinary action is additionally important to minimize chances of real and perceived discrimination against the alleged harasser on the basis of race, national origin, age, etc. Follow-up in all cases is recommended to make sure the harassment has actually stopped.
An employer who finds it impossible to draw a clear conclusion about the validity of a claim, even after careful investigation and fact-finding, might consider nondisciplinary action-such as transfers, rescheduling, and reassignment of duties-to prevent further contact between the involved parties. In any event, the employer should promptly notify the complainant of the result.
In California, employees have up to a year to file legal charges of harassment complaint. As the Hawaiian ruling illustrates, costs of losing a sexual harassment case can include not only back pay but also damages for pain and suffering and punitive damages. The Hawaiian Civil Rights Commission found that even though the person charged was not an employee, he was an agent of the company because he exercised supervisory authority as a member of the board of directors and had "significant control over the conditions of her employment." Courts ruling on penalties in harassment cases are likely to give serious consideration to whether the employer learned of the problem as soon as it should have, whether the offender was disciplined promptly, how the victim was treated, and whether efforts were made to prevent future problems.
Poster and Fact Sheet Available
As directed in A.B. 2264 last year, the Department of Fair Employment and Housing has revised its discrimination poster (DFEH-162, rev. 12/92) to include information on the illegality of sexual harassment. California employers are required to obtain and to display the poster in a prominent, accessible work location. Further, they are to distribute to employees a fact sheet on sexual harassment, either a copy of the one available from DFEH or an individually prepared one with comparable information. Specified elements of the fact sheet are: the illegality of sexual harassment, its legal definition, a description with examples, the employer's internal complaint process for employees, legal remedies available through the DFEH and the federal Equal Employment Opportunity Commission (EEOC), with directions for contacting those agencies, and protection against retaliation for resisting sexual harassment, filing a complaint, or otherwise participating in proceedings conducted by the agencies.
References
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