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1 TortSource 1 (1998-1999)

handle is hein.journals/tortso1 and id is 1 raw text is: Vol. 1, No. 1 Fall1 1998 American Bar Association Kiss Your Sexual Harassment Insurance Claims Goodbye Sandra R. McCandless r -e W y l I H arassent Horseplay or Harassment? Nicholas Canaday III December 3, 1997, the U.S. S eme Court heard oral arguments in Oncale v. Sundowner Offshore Services, Inc. (523 U.S. -, 118 S. Ct. 998, 140 L.- Ed. 2d 201 (1998)), a same-sex (male-on-male) harassment claim advanced under Title VII of the Civil Rights Act of 1964. Was this sim- ply horseplay? Plaintiff Joseph Oncale didn't think so, and filed suit in May 1994. The district court dismissed his claim, and the Fifth Circuit affirmed, reasoning that same-sex harassment claims are never cognizable under Title VII. A few months later, I stood before the Supreme Court and sought to resurrect Mr. Oncales claim. The plaintiffs claim arose out of events that occurred during his employment as a roustabout with Sundowner Offshore Services. Mr. Oncale asserted that his civil and employment rights were denied when, over a number of weeks, he was sexu- ally assaulted, battered, touched, and threatened with rape by his direct supervisor and two others. Plaintiff, who twice reported the sit- uation to no avail, was forced to quit his job out of fear that were he to stay, he would be raped or forced to have sex. Mr. Oncale filed a complaint against his employer, claiming that sexual harassment directed against him in the workplace by coworkers constituted discrimination because of sex prohibited by Title VII. Holding In a unanimous opinion, the Supreme Court held that same-sex harassment is actionable under Title VII of the Civil Rights Act of 1964. The Court said that Title VII's prohibition on sex discrimination extends to sexu- al harassment of any kind that meets the statutory requirements. The Court emphasized that the critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. The Court also said that harassing conduct need not be motivated by sexu- al desire to support an inference of dis- crimination on the basis of sex. Discrimination could be found because espite the widespread publicity given sexital harassment, supervisors and workers continue to engage in conduct chargeable as such. The reality is that most employers-companies and law finns alike-ignore the day-to-day events that culminate in a harassment charge. So what is the prudent employer to do to minimize insurance claims? Here are nine key steps to minimize your exposure. -Stop the banter. As a legal matter, most banter may not rise to the level of sexual harassment. As a practical matter, sexual banter has framed the basis for many claims. Employees should be told to interact professionally at all times, and offenders should be counseled. -Deal with the persistent offender. Don't wait for a complaint before dealing with the persistent offender who engages in sexual banter or unnecessary touching. It is that persons conduct that will lead to a legal problem. If counseling fails to work, impose discipline. Termination is in order when all else fails. - Resolve unrelated problems as early as possi- ble. While sexual harass- ment certainly is not a fanta- sy, problem employees sometimes charge sexual harassment to provide legal protection against workplace discipline.When unrelated workplace problems arise, deal with them appropriately and swiftly Avoid being the subject of a harassment charge by an employee who should have left the work- place months before for per- formance reasons. -Maintain a practical, written pro- gram. Policies are sometimes written in unwieldy or impractical ways. Assume that however a policy is written, it will be enforced to the letter; draft accordingly For example, numerous steps and multi- ple review committees are unnecessary. A policy is sufficient if it incorporates the basics: the harassment prohibition; a def- initional section; a reporting procedure that allows for a report to be made to a neutral person in the company if the offender is a supervisor; a promise not to retaliate; and a provision for discipline against the offender. -Document your training. A typical deposition question is what training the company provided. While there will often be an employee who doesn't get it, a list of signatures of all employees who attended training goes a long way toward showing that an employer acted reason- ably to prevent harassment. continued on page 4 continued on page 5

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