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Damages In Sexual Harassment Damages in sexual harassment And Workplace sexual harassment is a serious problem in the United States, and the dimensions of the problem continue to expand. In fact, the Equal Employment Opportunity Commission (EECO) and 350 female employees against Mitsubishi Motor Manufacturing of America filed the largest sexual harassment case in the nation's history recently. The total award in this class-action suit was $34 million, nearly $100,000 for each plaintiff. This, of course, is only the most costly and most publicized incident of its kind. The EEOC has been handling more than 5,000 sexual harassment cases annually, with jury awards frequently reaching $500,000 (including punitive damages). Such cases now are approximately 20 percent of the case load at the California Department of Fair Employment and Housing, up from three percent just a decade or so ago. A study by the National Organization for Women indicates that more than 80 percent of the women surveyed said they had been sexually harassed in the workplace. A Pentagon study showed that two out of three women in the military report such treatment. Even men have reported sexual harassment as a problem - a University of Michigan study showed that 10 percent of the men surveyed said they had experienced this kind of harassment. Damage awards can be levied against both the individuals who commit sexual harassment and the organizations that employ them. Thus, it's imperative that employees and management alike understand the legal and social implications of such activity. A large part of the problem with sexual harassment is the difference between legal definitions and individual perception. The EEOC defines sexual harassment as unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that interferes with an individual's work performance, or creates a hostile, intimidating work environment. However, an act of sexual harassment is often the perception of the alleged victim rather than the intent of the alleged harasser. Men and women frequently perceive conduct differently. What men may see as a "turn-on," women may see as a "turn-off." A study at a Missouri university indicated that 95 percent of the surveyed women were offended by suggestive comments, staring or flirting, while 46 percent of men thought women would be flattered by the attention. The same study indicated that 6 percent of men would be flattered if asked to have sex with a female co-worker, while 83 percent of women would be offended at the same suggestion. Actual cases are seldom clear-cut. Some situations may not appear as harassment at first glance. Here are some examples. A romantic affair is broken-off. The male continues to pursue the female. The female goes to the supervisor, who refuses to "get in the middle" and tells her to work it out on her own. In this instance, the supervisor, the pursuer and the organization all could be liable for sexual harassment. A new male is hired whom everyone knows is having an affair with the female supervisor. Another male, Tom, no longer gets the choice assignments. These go to the new hire. Third party sexual harassment could be charged because of Tom's change in status, which was not due to his performance, but because of a romantic relationship existing in the office. Both the supervisor and the organization could be held liable. Male employees make sexual comments and use offensive language when a female enters the room to get coffee. The female's supervisor suggests she ignore the comments and get coffee before coming into the office. Sexual harassment could be charged against the men because they are creating a hostile work environment, as well as against the supervisor and the organization because no attempt was made to correct the situation. Sexual harassment is a serious issue for the management of any organization because it damages employee morale, impacts careers, and negatively affects the bottom line (legal costs and punitive damages). It also creates high absenteeism, low productivity and employee turnover. In order for managers to ensure their organizations are free from sexual harassment - and therefore free from potential liability - they should observe the "three legged stool" rule. These three legs include the following… Have a written, published sexual harassment policy. Go beyond merely posting the policy. Include a procedure for complaint filing, forms to do so and the ability for an employee to talk with a senior manager. Ensure that complainants are free from any kind of retaliation. Let employees know what constitutes sexual harassment - and what they can do about it - through frequent training and informational/discussion sessions. These should be more than a "once-a-year seminar." Regular staff meetings are excellent on-going venues. And, training of new hires is important, since without it, they can represent a major potential liability. Training can include formal seminars, informal discussions, showing videos on the subject and/or providing on-line audio/video e-training programs (allowing employees to be trained at their own pace). All such training should be noted in each participant's personnel file, along with the results of occasional testing - for proof of training to a court. In addition to the provisions in the "three legged stool" rule, managers must take all sexual harassment complaints seriously, since they can be held personally liable and sued separately for mishandling a complaint. To further minimize the potential for sexual harassment charges, organizations should create an atmosphere that discourages improper behavior and offensive language, as well as inappropriate cartoons, drawings, photos and calendars. And, this attitude must flow from top management, down. No one can be immune. Sexual harassment is a potential problem for every worker and employer. It is inappropriate, antisocial behavior, and it's the responsibility of both management and individual employees to ensure that sexual harassment is never tolerated in the workplace. The Supreme Court on June 26,1998, made employers more liable for incidents of sexual harassment. Ruling on two sexual harassment cases, Faragher v. City of Boca Raton, and Burlington Industries Inc. v. Ellerth, the Supreme Court basically stated that the employer is responsible for the actions of the supervisor, even when the employer is unaware of the supervisor's behavior. An employer can no longer claim that they did not know about the sexual harassment because the employee did not inform them, nor can they claim that they were unaware of the supervisor's behavior. Even though the employer may have a policy against sexual harassment and even when sexual harassment training is provided to their supervisors; they still can be held vicariously liable in cases where a supervisor uses sexual content to discriminate against an employee. The Employer Liability Test The Supreme Court created a two part test to be used by employers in defending themselves against a sexual harassment lawsuit. The employer needs to show that they took reasonable care to prevent and correct any sexual harassment behavior within their workplace. This includes training. The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. This includes training on the measures to take to make the harassment stop. Online Training To reduce exposure to employment and labor law claims To meet human resources-related compliance obligations To improve workforce productivity and performance To reduce the hidden costs of sexual harassment