Featured Publications

(The following article appeared in the March 2001 edition of the Employment and Industrial Relations Law Journal, in the International Bar Association's Section on Business Law.)

By D. Jan Duffy, J.D. and Carla V. Minnard, J.D.

Outside observers have watched with interest and some amusement as the US legal system has struggled with the effort to balance the rights of workers to be free from unreasonable sexual demands and sexual conduct in the workplace against the difficulty of holding employers responsible for such potentially private or consensual matters. In a series of decisions beginning with the landmark US Supreme Court cases Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton in 1998 and culminating in recent cases such as Reeves v. Sanderson Plumbing, as well as significant new enforcement agency guidelines, the US legal system has finally achieved a reasonably practical resolution, not only for sexual harassment, but for all forms of illegal workplace harassment. According to the new rules, employers are still strictly liable for illegal harassment of subordinates by their supervisors that results in a substantial job detriment such as loss of a position or promotion. However, employers may now have a defence to liability for harassment that does not result in a substantial job detriment, even that which creates a hostile work environment. The defence is available only if the employer has taken effective action to prevent and correct harassment. Accordingly, in the United States, attention has now turned to identification and implementation of management strategies that will meet these standards and further the new defence as well as help create a fair and productive workplace.

Employers and their legal advisors in other parts of the world are showing significant interest in this new US initiative. Not only are American businesses imposing their new programmes on a world-wide basis, but other countries, such as those faced with new EU directives, are seeking to avoid the mistakes and emulate the successes of the new American policy. This article explores the US experience and identifies strategies that work best for employers seeking to prevent and correct workplace harassment effectively.

In response to the new rules, many employers have begun implementing comprehensive harassment and discrimination prevention and correction programmes. These new "workplace equity programmes" typically focus on three areas: 1) organisational culture, 2) written policy and procedures, and 3) communication and education.

Organisational Culture

Both lawyers and their employer clients are increasingly recognising that implementing generic policies, procedures, and education/communication programmes will not solve the employer's need for effective prevention and correction. Like a thumbprint, each organisation has a unique culture. The culture of Microsoft, for example, is different from that of General Motors, which is different from that of Wal-Mart or a government agency. Some organisations have employee-friendly cultures; others discourage voicing of complaints; some expect rigid adherence to hierarchical directives; others reward initiative or critical thinking. What works in one environment may prove completely ineffective or even counterproductive in another. Accordingly, prior to designing and implementing the new equity programmes, many employers are first undertaking a workplace culture assessment. By utilising such analytical tools as process investigation, focus groups, one-on-one interviews, audits of company policies and publications, review of educational programmes, and observations of company facilities and practices, assessors can diagnose potential obstacles or problems and identify organizational assets. Using this information, lawyers or management consultants help employers create and implement a prevention and correction programme customised for maximum effectiveness in that particular environment.

Among the primary cultural issues that employers must address is how to declare and communicate most effectively a genuine commitment to preventing and correcting harassment and discrimination in the workplace. For maximum effectiveness, all organisations should clearly convey an explicit, comprehensive, and high-priority commitment that is linked to the organisation's important cultural values and artefacts. For example, instead of issuing a simple anti-harassment policy and burying it in the operations manual, the organisation should incorporate its declaration in such communications as the company's mission, vision, code of conduct, ethics, and/or values statements. Its absence from such statements of corporate priorities is increasingly likely to be noted and considered to undermine the organisation's otherwise-declared commitment.

In most workplaces, the explicit commitment of the organisation's leadership is particularly important, as employees usually interpret the organisation's priorities from the words and actions of highly placed executives. Especially in highly centralised or hierarchical organisations, less-than-enthusiastic participation and affirmation by such executives means a less-than-effective programme. If top executives and managers are considered exempt from compliance with the new standards of conduct, for example, employees will quickly conclude that the programme and the declared commitment are meaningless. The point is illustrated, in fact, by the case of a worldwide fitness organisation that has been subject to multiple recent sexual harassment lawsuits. The alleged conduct of the organisation's founder and chairman, as well as several of his top executives, in dating employees, installing young girlfriends in management jobs, and not holding employees accountable for egregious sexual behaviour in the workplace, has figured prominently in the complaints and press coverage of the ongoing litigation. In contrast, the active and continuously expressed commitment of Texaco Chairman Peter Bijur after a widely publicised race discrimination settlement in the mid-1990s, is widely recognised to have turned the company into a leader as regards workplace equity matters. Thus in many leading companies, top executives, including the CEO, president, or chairman of the board, are now making great efforts not only to express but to demonstrate their personal and organisational commitment to a workplace free of harassment and discrimination. Personal executive messages are being incorporated in letters accompanying new anti-harassment efforts; in prefaces to codes of ethics, best practices, and equal opportunity brochures; in company memos, newsletters, and emails. Some organisations are distributing a personal message from a company leader on video, CD-ROM, or the company's intranet. Others make certain that top executives address the matter in speeches, both inside and outside the company.

In decentralised organisations and cultures, the words and actions of lower level managers and supervisors are also important. Such organisations are increasingly implementing new systems that help line managers understand what is expected of them and their employees; help supervisors explain and coach employees in the new rules or standards; and explicitly hold managers and supervisors accountable not just for compliance but for effectively managing the new equity programme. Many such organisations are also taking steps to express to employees the new responsibilities of managers and the organisation's strategies for enforcing them. These include adding equity-related performance criteria to managerial performance evaluations and performance-based compensation plans.

Organisations that have a history or culture of ignoring or covering up harassment, or even retaliating against individuals who complain, encounter particular difficulty in convincing employees that they are truly committed to real change. Historically troubled organisations are now working harder and longer to establish comprehensive workplace re-education plans, all-new complaint-handling procedures, and equity-monitoring programmes. After Mitsubishi's serious sexual harassment problem at its Normal, Illinois facility, for instance, the company established a complaint-review and employee 'hotline' system headed by three independent outsiders.

Policies and Procedures

Information obtained from the employer's culture assessment is used to audit and redesign the employer's existing equity-related policies, procedures, and practices. New policies and procedures are specifically tailored to address cultural obstacles or impediments and capitalise on cultural assets. For example, most US employers are re-writing their existing anti-harassment policies and complaint procedures to ensure effectiveness. Separating sexual harassment from other harassment and nondiscrimination policies, for instance, used to be common but is no longer advisable, as contrary to the new legal standards, it may suggest that employers attach differing weight to different forms of illegal discrimination and harassment. At a minimum, effective policies are now expected to include: a declaration of the employer's commitment to providing a harassment-free environment; an understandable, non-legalistic definition of illegal harassment with examples; a description of consequences that will be imposed upon violators of the policy; a statement providing real encouragement of persons who believe they may have been harassed to come forward; and an assurance of non-retaliation for participating in the complaint process or any investigation. In fact, enforcement agency guidelines specifically provide that unless anti-harassment policies and complaint procedures have an assurance of non-retaliation, they will not be deemed effective. The language of such a provision should, accordingly, be firm and unambiguous. Many employers are also now including at least a general description of what employees can expect in a complaint investigation and offer an assurance that any investigation will be held as confidential as possible given requirements of fairness to other employees, such as the accused.

Because effective corrective action is impossible absent accurate and sufficient fact-finding and evaluation of harassment allegations, employers are also reviewing their workplace investigation and disciplinary decision-making practices. Many employers have dramatically increased the extent and quality of their workplace misconduct investigations to assure that equity-related decisions are based on prompt, thorough, and fair inquiry processes and that the information relied on is relevant, accurate, sufficient, and appropriate. In particularly sensitive or difficult matters, employers are increasingly utilising the services of highly skilled outside investigators, such as attorneys or management consultants. Most are re-training managers in critical thinking and other disciplinary decision-making techniques and are reviewing not only their disciplinary action rules but also recent practice to ensure consistency and effectiveness of harassment-related discipline. Employers are also establishing archive and tracking systems to make certain that repeat offenders are progressively and adequately disciplined.

Communication and Education

Comprehensive communication of the employer's new commitment is central to effective prevention and correction of harassment. Although US employers have for some time undertaken such measures as including their anti-harassment policy in employee handbooks and posting notices of the policy in the workplace, they have redoubled their efforts in light of the new requirements. For example, many employers are now regularly circulating copies of the anti-harassment policy, with an explanatory pamphlet or message, directly to employees' homes or attached to their pay cheque. Employers are holding question and answer sessions at new-employee orientations and in routine staff meetings and are continuously circulating messages on the issue from the organisations' leaders and human resources authorities.

Substantial education and retraining programmes are also increasingly being utilized as a tool both to prevent and correct workplace harassment. Before the new standards, many employers did little more than tell managers and employees: 'sexual harassment is not tolerated here.' Now, lawyers and their employer clients are beginning to realise that real education maximises the effectiveness of new policies and procedures, and lays the foundation for real change. Employers are providing serious instruction for both managers and employees that cogently explains what illegal harassment is—and what it isn't—and the rights of managers and employees as well as their responsibilities under the employer's programme. Such education is increasingly engaging, interactive, and directed towards differing learning styles and abilities. Some employers are even beginning to establish competency assessments or other evaluations to ensure that the education is actually effective and to communicate its commitment to prevention and correction further by making employees accountable for learning.

In sum, the confusion and occasionally excessive attention of the American legal system concerning liability for illegal harassment is largely a thing of the past. New US legal developments have demanded new policy directions and new strategies directed toward practical efforts that are well within the employer's reach, that is, design and implementation of effective prevention and correction programmes. While US employers and their advisors will doubtless continue to develop additional solutions, the new focus on effective prevention and correction of harassment is already beginning to pay off in more equitable and productive workplace practices.

Featured Publications

Effective Harassment Prevention and Correction in the Global Workplace