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TEST YOUR KNOWLEDGE OF SEXUAL-HARASSMENT LAW
How can a small business prevent sexual harassment in the workplace? And how would you react in certain situations where complaints of sexual harassment are brought to your attention? Find out by answering the following seven questions, which are part of an employment-law board game created (and marketed) by San Francisco law firm Littler Mendelson. Remember, the answers listed at bottom are not meant as formal legal advice, but simply as general guidelines.
(Note: This is an expanded version of the quiz that appears in the Oct. 13, 1997 issue of Business Week.)
1. Which of the following is NOT an example of hostile environment sexual harassment?
A. Where repeated unwelcome sexual comments alter the conditions of a complainant's employment.
B. Where listening to repeated, offensive sexual jokes is a condition of employment.
C. Where a nonmanagement employee's sexual conduct toward the complainant creates an abusive work environment.
D. Where the manager asks an employee out on a date and she refuses.
E. All of the above would support a claim of hostile environment sexual harassment.
2. Jordan sent an E-mail message to an employee recently assigned to his team complimenting her on her dress. Later she was reprimanded for poor performance. She responded that this must have been caused by her refusal to become involved with Jordan. Jordan is stunned and denies doing or saying anything that could be construed as sexual harassment. What advice would you offer Jordan?
A. Quit and find another job.
B. Don't worry. Everyone knows that this employee is unstable.
C. Cooperate fully in the investigation. If the only evidence of sexual harassment is an occasional compliment on an employee's choice of clothing, it is hard to imagine that this would create a hostile work environment.
D. Take a training course on sexual harassment.
E. Hire a good lawyer.
3. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
A. Submission to such conduct is made a term or condition of employment.
B. Submission to or rejection of such conduct is used as a basis for employment decisions affecting the individual.
C. Such conduct has the purpose or effect of unreasonably interfering with an employee's work performance.
D. Such conduct has the purpose or effect of creating an intimidating, hostile, or offensive work environment
E. All of the above.
4. Rita had a consensual affair with Phil, one of her co-workers. They stopped seeing each other. However, Phil has been sexually propositioning Rita over the last several weeks at work. Rita now finds Phil's sexual comments to her offensive. Does Rita have a viable sexual harassment claim against Phil based on these recent comments to her?
A. No, because Rita had previously had an affair with Phil
B. No, because verbal remarks, without any physical touching, are insufficient to predicate a sexual harassment claim.
C. Yes, because the affair between Rita and Phil ended several months ago.
D. No, unless Rita has made it clear to Phil that the affair is over and that she now finds his sexual remarks offensive.
E. Probably, if Phil continues to make sexual remarks in the future.
5. You are Susan's supervisor. She comes to you and confidentially reports that a co-employee is bothering her in a sexually suggestive manner. You offer to investigate the matter. She firmly rejects the offer and states that she merely wanted you to be aware of the situation in case it became worse. What is your best next move?
A. Keep a close eye on the co-employee and report the matter to senior management if Susan complains again or you independently observe inappropriate conduct.
B. Report the matter immediately to senior management; however, protect Susan by characterizing the complaint as originating from "an employee."
C. Immediately fire Susan for noncompliance with the sexual harassment policy.
D. Find a reason to immediately terminate the co-employee.
E. Tell Susan that as a supervisor you are obligated to report and follow up on certain matters. Afterward, report the matter to senior management and seek assistance in handling the matter.
F. Afterward, report the matter to senior management and seek assistance in handling the matter.
6. Which statement best describes a supervisor's, manager's or team leader's potential personal liability for sexual harassment?
A. Individual supervisors are immune from personal liability because they are not employers (only agents of their employer).
B. Supervisors have no personal liability but may be disciplined by their employer.
C. It is common in many states for a supervisor to be individually named in a charge and/or a lawsuit claiming sexual harassment.
D. Sexual harassment must be very extreme before a claim can be made for individual liability against a supervisor, manager, or team leader.
E. Supervisors, managers, and team leaders are protected from individual liability under the National Indemnification Act.
7. Gavin is thinking of dating an employee in his work group. He works long hours and has not met anyone outside of work. He believes that this relationship might have long-term possibilities. What is the best advice to Gavin regarding the problems of sexual harassment?
A. Go for it -- this is a personal decision unrelated to the workplace.
B. If Gavin dates an employee he directly supervises, his employer will likely terminate him. Gavin should know this before proceeding.
C. This is a personal decision and will probably result in a successful long-term relationship and even a marriage.
D. Almost all such relationships result in claims of sexual harassment or sexual favoritism. Gavin should keep looking.
E. None of the Above.
1--D. An employee may proceed on a sexual harassment claim where the sexual conduct complained of is sufficiently severe or pervasive to alter the conditions of the complainant's employment and create an abusive working environment. The example here suggests a one-time only event which would not be sufficiently severe or pervasive. Answers A, B, and C all describe scenarios that would support a hostile environment theory.
2--C. Because the E-mail communication is slightly suggestive (although nothing was intended), it can be used to make more believable other statements that Jordan may deny having made. E-mail and voice mail should be used on the assumption that they will be broadcast on the six o'clock news. Therefore, Jordan should keep E-mail messages limited to company business and recognize that such communications can be taken out of context and have far greater impact than ever intended. Because verbal statements are hard to prove and come with qualifications and explanations, written statements or recorded calls may get far more attention and weight than their authors ever intended or envisioned. Also, such records are remarkably reproducible. A chat on the computer is not the equivalent of a conversation in the lunchroom.
3--E. All of the above defines what is meant by sexual harassment under the EEOC's guidelines. Quid pro quo sexual harassment occurs when a supervisor or manager conditions an employment benefit or continued employment on the employee's acquiescence in sexual behavior. Hostile environment sexual harassment occurs where sexual jokes, graffiti, suggestive remarks, cartoons, or sexually derogatory comments create an intimidating, hostile, or offensive work environment.
4--D. Where an employee had a consensual relationship with a co-worker, she must make clear to the other that the affair has ended and that she wants the romance to stop. If the co-worker thereafter persists in harassing the other, he could well be liable to his former paramour for sexually harassing her. If the employer receives a complaint about or knows of the harassing conduct and fails to take effective action to stop it, the employer could be liable.
5--E. The entire company is on notice through Susan's "confidential" report. To take no further action could subject the company and her supervisor to liability. Also addressing the problem at the earliest possible stage is the best way to find a solution. Finally, explain to Susan that the co-employee may be bothering other employees even if he subsequently leaves her alone. Doing nothing could be as bad as answers C and D.
6--C. Individual liability is a serious issue with regard to sexual harassment. Under many state laws, individuals do have liability, and it is common for supervisors, managers, or team leaders to be named in claims. In California, for example, juries have awarded damages against individual supervisors (as well as other employees) for individual acts of sexual harassment and/or related personal injury. Many employers provide legal representation for their supervisors, managers, and team leaders; however, there is no indemnification requirement if the supervisor, manager, or team leader is found liable. Of course, many nonlegal consequences also underscore the seriousness of the issue. Public and private embarrassment, loss of management time, and discipline are very real potential consequences of supportable claims of sexual harassment.
7--E. Some organizations have antifraternization rules. However, many employers ultimately regard dating of employees to be a personal decision, provided that it does not negatively affect the workplace. Unfortunately, dating between a supervisor and a supervised employee is supercharged with legal problems. If the employee rejects the advances and is later denied a promotion or disciplined, a question will exist as to whether the rejection was at least a partial motive for the decision. If the couple dates, sexual favoritism claims are possible. If the relationship ends on a less than a positive basis, any work-related problem has the potential for sexual harassment claim. Even if no claims are made, Gavin will be reluctant to administer discipline and make assignments without at least considering the potential for a harassment claim. This places a tension in the workplace that makes life very complicated. Regardless of whether a claim is actually made, dating between supervisors and employees should be recognized as a high-risk activity.