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.
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.
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