Diversity & Inclusion

We’ve come a long way, maybe

by Susan G. Fentin

I’m old enough to remember a time when sexual harassment wasn’t illegal, in the era before the courts began to apply Title VII of the Civil Rights Act of 1964 to such claims. I have vivid memories of getting a “back rub” from a manager in the small office where I was doing temporary secretarial work during a college vacation. It was, frankly, creepy, but I had no real recourse. I needed the job, and from a practical standpoint, there really wasn’t anyone I could complain to. From a legal standpoint, sexual harassment didn’t become actionable under Title VII until 1977, and it wasn’t until 1988 that the courts began to consider “hostile work environment” a valid claim of sexual harassment.  Sexual harassment

Now, of course, hostile work environment is a term that covers all forms of harassment focused on or because of an individual’s membership in a protected class, and it’s also used by employees who are merely objecting to a boss they believe is harsh or unreasonable or a workplace environment that’s toxic because employees just don’t get along. But you would think employers have learned that sexual conduct in the workplace is simply too risky to tolerate.

As an attorney representing employers, I do a lot of antiharassment training, helping clients understand the risks inherent in a sexually charged workplace. But every once in a while, I am called in because of a systemic issue in a workplace where sexual banter and conversation is considered commonplace. The risks are even greater there, especially if members of management are either participating in or perhaps even instigating the sexual conversation.

Recently, I was called in to conduct antiharassment training in just such a situation. Apparently, in this particular industry, it isn’t uncommon for the team that’s working on a particular task to engage in sexual banter and discussions of personal sexual issues as a means of reducing tension during a difficult procedure. However, after a new employee complained, management decided it needed to take steps to stop the behavior, so training was in order. Despite the fact that the situation created significant risk of liability because members of management were actively participating in the conversation, I got pushback in the training sessions.

Management was uncomfortable being the “prude” in the team sessions. Managers didn’t want to be perceived as being unfriendly or rigid, and they didn’t want to say anything to the other members of the team who were telling off-color jokes or discussing explicit sexual topics. What was the harm, they asked? After all, only one person had complained, and the sexually charged environment was so common, it was hard to believe that anyone else would ever object.

Fix the hole before someone gets hurt

I countered with a hypothetical: What if the company’s premises liability carrier was conducting an inspection of the offices to see whether there were any physical defects in the building that would increase the possibility of an accident claim? And what if there was a huge hole in the middle of the front step to the building. I can envision the insurance inspector saying to the company representative, “Hey, you have a huge hole in the middle of your front step. Don’t you think that’s dangerous?” To which the company representative might reply, “Oh, that’s not a problem. Everyone knows it’s there, and they just walk around it!” Clearly, that hole represents a big risk to the company, and the fact that it’s tolerated won’t protect the company if someone steps in the hole and breaks her leg.

Ultimately, I think I was able to convince the company that tolerating a sexually charged environment was too risky, and management committed to ensuring that the working environment wouldn’t, in the future, give rise to a claim of sexual harassment. Frankly, the company was lucky that the woman who was upset complained instead of filing a charge of discrimination. In Massachusetts, if a supervisor is responsible for the hostile work environment, the employer’s only defense is that the offensive conduct didn’t occur: There’s automatic liability for proven conduct that creates a hostile work environment.

It’s hard to be the one who complains if everyone else appears to be OK with the offensive environment. So the woman who complained here did the company a favor, because a sexually offensive work environment can be the basis for an expensive lawsuit. Lexus of Watertown learned that lesson the hard way last week.

Expensive lesson

A female employee had worked at Lexus for nine years, starting as a receptionist and working her way up to finance manager, a commission-based position in which she earned six figures. She was the only female finance manager and the top performer in the department. During her final 18 months of her career at the dealership, she was subjected to sexual harassment by her direct supervisor.

The supervisor made crude references to the female body, said things that could be interpreted as requests for sexual contact, threw coins at her chest, and touched her inappropriately. And, despite her protests, he made it clear that his behavior wasn’t going to stop. The dealership knew about his conduct and learned from a variety of sources that the workplace was sexually charged and that management employees were making derogatory and demeaning comments about women.

The female finance manager ended up suing for hostile work environment, and the case went to trial. The jury issued a verdict in her favor and awarded her $540,000 in emotional distress and punitive damages. Plus, the dealership is now on the hook for her attorneys’ fees, which will be considerable. Gyulakian v. Lexus of Watertown (Mass. Sup. Ct., 2014).

Have we come a long way?

Clearly, women in the workplace have come a long way, but in some companies, we still have a long way to go. When I read about the Lexus verdict, I called my client. Its response was that the dealership actually got off easy, which is perhaps true: The employee didn’t receive an award for lost wages. Perhaps she’s still employed by the dealership, or perhaps she left and got a job that compensated her at the same or a higher salary level.

But don’t wait until you’ve learned a lesson through litigation. Your company should have zero tolerance for sexually charged behavior in the workplace, regardless of whether anyone has told you it’s inappropriate. And be sure you distribute your antiharassment policy to new employees at the time they’re hired and to all employees on an annual basis.

If you suspect that there’s a systemic problem, call your labor and employment counsel to arrange for antiharassment training. An ounce of prevention here is worth a pound of cure because failing to address a hostile work environment promptly could lead to big damages.

Susan G. Fentin is a partner at the firm of Skoler, Abbott & Presser, P.C. Susan may be contacted at sfentin@skoler-abbott.com.

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